Bangalore District Court
Smt. K.Sudha vs Sri.M.Maruthi on 1 December, 2021
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Crl.A.No.987/2017
IN THE COURT OF LV ADDL. CITY CIVIL &
SESSIONS JUDGE, BENGALURU (CCH-56)
:Present :
Sri. Krishnamurthy R. Padasalgi,
B.Sc., LL.M., HDSE
LV Addl. City Civil & Sessions Judge,
Bengaluru.
Crl.A.No.987/ 2017
DATE: THE 1st DAY OF DECEMBER 2021.
APPELLANT :: Smt. K.Sudha,
w/o Munireddy
Aged about 43 years,
Residing at No.655,
10th 'D' Main Road,
25th Cross, 6th Block,
Rajajinagar,
Bangalore - 560 010.
(Rep. By Sri.S.N. Advocate)
-V/s-
RESPONDENT :: Sri.M.Maruthi,
S/o Late Sri.B.Muniyappa,
Aged about 55 years,
Residing at No.498, Maruthi
Nilaya, Bhuvaneswhari Nagar,
Hesaraghatta Main Road,
T.Dasarahalli,
Bangalore - 560057.
(Rep. by xxxxx Adv.)
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Crl.A.No.987/2017
JUDGMENT
This is an appeal under Section 374(3) of Cr.P.C. by the appellant/accused being aggrieved by the judgment and order passed by learned XII A.C.M.M., Bengaluru City in C.C.No.24794 /2014 dated 15.06.2017 for convicting her for the offence punishable u/Sec. 138 of N.I. Act sentencing her to pay compensation of Rs.3,60,000/- to complainant/ respondent in default simple imprisonment for 3 months.
1. The parties will be referred as per the Rank before the trial Court.
2. The brief facts of the case of the complainant are; Both the complainant and accused are very well known to each other since last one year as they are family friends. On account of well acquaintance with the complainant, the accused had requested and demanded for advancement of the hand loan amount of Rs.3,50,000/- for the purpose of her family and domestic necessities during the first week of October 2012 and accordingly, on believing the good faith the 3 Crl.A.No.987/2017 complainant had advanced an amount of Rs.3,50,000/- to the accused and at that time the accused has promised that, she will repay the said amount within a period of three months. After lapse of stipulated period on repeated request and demand made by the complainant to the accused for repayment of the borrowed loan amount and at that time the accused for discharge the loan in question had issued cheque bearing No.023330, dated: 06.02.2013 for Rs.3,50,000/- drawn on Canara Bank, N.R. Road Branch, Benglauru in favour of the complainant and as per the complainant assurance has made presented by the the accused, the said cheques for encashment through his banker i.e., The Karnataka State Co-Operative Apex Bank Limited, T.Dasrahalli Branch, Bengaluru, but it was returned with an endorsement as "Funds Insufficient" on 08.02.2013. Thereafter, the complainant has informed the said fact to the accused, but the accused has not responded the same, then, the complainant has got issued the legal notice through his counsel by way of RPAD calling upon her to repay the 4 Crl.A.No.987/2017 borrowed the loan amount within 15 days from the date of receipt of the said legal notice and it was duly served upon the accused.
3. Despite of service of the legal notice the accused neither repaid the borrowed loan amount nor gave reply notice. Hence, the complainant had constrained to file the present complaint against the accused for the offence punishable under Section 138 of N.I.Act., and along with the complaint, filed an application under Section 142 of N.I.Act., seeking for condone the delay for filing the present complaint and the copy of the application sent to the accused through RPAD and it was duly served and inspite of giving sufficient opportunity the accused has not filed objection and objection to the said application is taken as not filed and after heard the application and same was allowed and then perused the documents and taken cognizance and registered the case in PCR.
4. After recording of the sworn statement of the complainant and complaint registered in criminal case 5 Crl.A.No.987/2017 registered and after issuance of summons to the accused, the accused had appeared before this Court through her counsel and enlarged on bail. The substance of the accusation was recorded and read over the accused in her vernacular. She pleaded not guilty. Hence claims for trial.
5. The complainant was examined as P.W.1 and got marked 6 documents as Exs.P.1 to Ex.P.6 and recording of statement of the accused u/Sec.313 of Cr.P.C. was dispensed with. Inspite of giving sufficient opportunity, the appellant/accused failed to adduce defence evidence. The learned magistrate after hearing both passed the impugned order.
6. The parties will be referred as per rank held by them before trial court. The appellant/accused has following urged grounds for the appeal.
7. That impugned judgment and order is totally perverse, opposed to law, facts and materials, the Court below erred in convicting the accused. The trial court has not properly appreciated the evidence on record and the entire approach 6 Crl.A.No.987/2017 made into the matter is erroneous. No sufficient opportunity was given to the appellant / accused. Due ill-health of mother-in-law of the appellant/accused, she could not contact her counsel and appear before the court. Hence appellant/accused could not cross-examine complainant/P.W.1. It is further submitted by the appellant/accused that the Learned Magistrate has committed a grave error in not exercising the judicial mind to secure the presence of the appellant/accused in accordance with law and the Judgment and order are liable to be set aside.
8. After registration of appeal, notice was issued to respondent / complainant, respondent appeared through counsel, trial court records were secured.
9. The counsel for the appellant not argued the matter despite giving sufficient time and nor filed written arguments. Heard counsel for respondent he also filed written arguments. Perused records.
10. Based on the above the following point that arises for 7 Crl.A.No.987/2017 consideration is;
"Whether the judgment of conviction and sentence of the trial court is sustainable in law in view of dispensing with the recording of statement u/S 313 of CrPC. against the accused and not securing appearance of accused by the trial court?"
11. The above point is answered in the Negative, for the following.
REASONS
12. POINT: In this case the trial court has not properly appreciated or understood the ratio laid down by the Hon'ble Supreme Court reported in (2014) 5 SCC 590 - INDIAN BANK ASSOCIATION VS. UNION OF INDIA. At para No.18 it is held as under.
"Amendment Act, 2002 has to be given effect to in its letter and spirit. Section 143 of the Act, as already indicated, has been inserted by the said Act stipulating that notwithstanding anything contained in the Code of Criminal Procedure, all offences contained in Chapter XVII of the Negotiable Instruments Act dealing with dishonour of cheques for insufficiency of funds, etc. shall be tried by a Judicial Magistrate and the provisions of Sections 262 to 265 Cr.P.C. prescribing procedure for summary trials, shall apply to such trials and it shall be lawful for a Magistrate to pass sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding Rs.5,000/- and it is further provided that in the course of a summary trial, if it appears to 8 Crl.A.No.987/2017 the Magistrate that the nature of the case requires passing of the sentence of imprisonment exceeding one year, the Magistrate, after hearing the parties, record an order to that effect and thereafter recall any witness and proceed to hear or rehear the case in the manner provided in Criminal Procedure Code."
And following directions are issued by the Hon'ble Supreme Court for speedy disposal of the cases filing under Section 138 of N.I. Act viz., "1. Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day when the complaint under Section 138 of the Act is presented, shall scrutinize the complaint and, if the complaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order, take cognizance and direct issuance of summons.
2. MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post as well as by e- mail address got from the complainant. Court, in appropriate cases, may take the assistance of the police or the nearby Court to serve notice to the accused. For notice of appearance, a short date be fixed. If the summons is received back un-served, immediate follow up action be taken.
3. Court may indicate in the summon that if the accused makes an application for compounding of offences at the first hearing of the case and, if such an application is made, Court may pass appropriate orders at the earliest.
4. Court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during 9 Crl.A.No.987/2017 trial and ask him to take notice under Section 251 Cr.P.C.. to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145 (2) for re- calling a witness for cross-examination.
5. The Court concerned must ensure that examination- in-chief, cross-examination and re-examination of the complainant must be conducted within three months of assigning the case. The Court has option of accepting affidavits of the witnesses, instead of examining them in Court. Witnesses to the complaint and accused must be available for cross-examination as and when there is direction to this effect by the Court."
13. The trial court has totally appears not properly understood the above ratio laid down. The discretion vests with the Magistrate or Court to try the cheque bounce case of insufficiency of funds, under Section 262 to 265 of Cr.P.C, as per provisoins of chapter - XXI of Cr.P.C. that is as summary trial, if opinion of Magistrate he would pass a sentence not exceeding one year and amount of fine not exceeding Rs. 5,000/-. In such a case, summary trial cheque bounce is permissible.
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Crl.A.No.987/2017
14. If the Magistrate were to be take other view passing sentence of imprisonment for more than one year or fine more than Rs.5,000/- then the matter has to be tried as summons case by following the provisions under Chapter - XX of Cr.P.C.
15. By just glancing the judgment which is impugned herein the learned Magistrate has convicted the accused under Section 255 (2) of Cr.P.C. which clearly shows the learned Magistrate has proceeded to try this case as summons case, then it is incumbent to follow the procedure laid down in Chapter - 20 of Cr.P.C. and fine amount imposed is Rs.3,60,000/-, which is more than Rs.5,000/-, which is a upper limit in cases of a matter tried summarily. So in other words the trial before Magistrate is a summons trial and not summary trial.
16. By the perusal of the proceedings of trial court on 14.11.2016, the learned Magistrate has cancelled the bail bond of the forfeited the cash security, as the warrant was unexecuted. For the said portion of the order there cannot be 11 Crl.A.No.987/2017 any dispute or challenge. But after forfeiting the cash security the accused was not secured and no efforts were made to secure him, but in a single stroke of pen the learned Magistrate by considering that the evidence of PW 1 is not challenged, hence, recording of statement under Section 313 of Cr.P.C. would not arise and also held that no application under Section 145 (2) of Cr.P.C. is made,hence, there is no question of posting the matter for defence evidence and posted the case for arguments and on later date after hearing the counsel for the complainant passed impugned order.
17. In this case the Magistrate has totally erred. When the matter was tried as summons case as it could be seen from the previous proceedings of the case, the dispensation of recording statement under Section 313 of Cr.P.C. was not at all permissible. The inculpatory matter in the evidence PW 1 which is unchallenged, according to the Magistrate has to be put to the accused.
18. In a rulings reported in (2000) 8 SUPREME COURT CASES 740 - BASAVARAJ R. PATIL AND OTHERS VS. 12
Crl.A.No.987/2017 STATE OF KARNATAKA AND OTHERS, AIR 1992 SUPREME COURT 2100 - STATE OF MAHARASHTRA VS. SUKHDEO SINGH AND ANOTHER and (2003) 2 SUPREME COURT CASES 401 - LALLU MANJHI AND ANOTHER VS. STATE OF JHARKHAND, it is held that recording the statement under 313 of Cr.P.C is mandatory.
19. In the case of BASAVARAJ R. PATIL AND OTHERS VS. STATE OF KARNATAKA AND OTHERS it is held as under.
"19. Thus it is well settled that the provision is mainly intended to benefit the accused and as its corollary to benefit the court in reaching the final conclusion.
20. At the same time, it should be borne in mind that the provision is not intended to nail him to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim audi alteram partem. The word "may" in clause (a) of sub-section (s) in Section 3s3 of the Code indicates, without any doubt, that even if the court doe not put any question under that clause the accused cannot raise any grievance for it. But if the court fails to put the needed question under clause (b) of the sub-section it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him."13
Crl.A.No.987/2017
20. Therefore, recording of statement u/S 313 of CrPC in a summons case is a sine qua non, but the learned Magistrate has ignored it.
21. Now to consider the impugned judgment in the reasoning portion at page No.5 of the judgment he has relied upon the ruling reported in (2014) 5 SCC 590 - INDIAN BANK ASSOCIATION VS. UNION OF INDIA and dispensed with the appearance of the accused. As observed earlier the learned Magistrate has not properly understood the ratio. The judgment which is passed in the absence of the accused by dispensing with the statement u/S 313 of CrPC cannot be said to be valid judgment.
22. The counsel for the respondent has relied upon the ruling reported in AIR 2009 (NOC) 404 KERALA - MRS. JAIN BABU AND K.J. JOSEPH. But on going through the principles laid down; the Magistrate can exempt the presence of the accused under Section 205 of CrPC at his discretion, but plea can be recorded through his counsel. Even in this 14 Crl.A.No.987/2017 case, although it differs from the fact, the counsel has not at all heard also. The said citation is not applicable and para No.23 and 24 of the said judgment mandates the magistrate to call for written statement, in a case of dispensation of statement u/S 313 CrPC. Hence, the citation is not at all applicable on facts,said para are as under:-
"23. It is now evident that the plea can be recorded and the evidence can be introduced in the absence of the accused and in the presence of his counsel, if he is exempted under Section 205 Cr.P.C. We then come to the next stage - of examination under Section 313 (1)
(b) Cr.P.C. The Section obliges that in every enquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the courts shall, after the witnesses of the prosecution have been examined and before he is called on for his defence, question him generally on the case. Precedents mandate that this is an invariable requirement in all cases; but the proviso to Section 313 (1) Cr.P.C adds that in a case where the presence of the accused has already been dispensed with, the court may also dispense with his examination under Clause (b). I extract below Section 313 (1) and its proviso.
"313.Power to examine the accused.- (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court -
(a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary;15
Crl.A.No.987/2017
(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case:
Provided that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b)."
(emphasis supplied)
24. It therefore is evident that in a prosecution under Section 138 of the Negotiable Instruments Act where personal appearance of the accused has been dispensed with under Section 205 Cr.P.C, his examination under Section 313 (1)(b) Cr.P.C can also be dispensed with. While exercising the discretion under the proviso, the Magistrate may direct or permit the filing of a statement, if any, by the accused to enable the accused to explain the circumstances against him. The interests of justice can be eminently satisfied by resort to such a course."
Accordingly, the point is answered in the Negative and proceed to pass the following.
ORDER Appeal under Section 374(3) of Cr.P.C. filed by the appellant / accused - Smt.K.Sudha being aggrieved by the judgment and sentence passed by learned XII Additional Chief Metropolitan Magistrate, Bengaluru dated 15.06.2017 in C.C.No.24794/2014 is hereby allowed.
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Crl.A.No.987/2017 The Judgment and sentence passed by the learned XVIIX Additional Chief Metropolitan Magistrate, Bengaluru dated 15.06.2017 in C.C.No.24794/2014 is set aside.
This matter is remanded with a direction for the Trial Court to readmit the same, and appellant shall be present on the day fixed by the Magistrate and to proceed to record statement of accused under section 313 of Cr.P.C and proceed according to law, and P.W.1 shall be cross-examined by the accused without fail on the date fixed by the Trial Court if appellant so makes an application before trial court, but prior to trial court proceeding to record statement u/S 313 of Cr.P.C.
Office of the Trial Court is directed to refund the amount deposited by the appellant/accused, if any.
Bail bond and surety bonds of accused / appellant executed before trial court to continue till conclusion of trial by trial court.
Send copy of Judgment with TCR.
[Dictated to the Judgment Writer, transcribed by her, transcription corrected and then pronounced by me in open court, dated this the 1st day of December, 2021.] (Krishnamurthy R. Padasalgi) LV Addl. City Civil & Sessions Judge, Bengaluru.
17Crl.A.No.987/2017 Judgment passed and pronounced in the open court. The operative portion reads as under.
ORDER Appeal under Section 374(3) of Cr.P.C. filed by the appellant / accused - Smt.K.Sudha being aggrieved by the judgment and sentence passed by learned XII Additional Chief Metropolitan Magistrate, Bengaluru dated 15.06.2017 in C.C.No.24794/2014 is hereby allowed.
The Judgment and sentence passed by the learned XVIIX Additional Chief Metropolitan Magistrate, Bengaluru dated 15.06.2017 in C.C.No.24794/2014 is set aside.
This matter is remanded with a direction for the Trial Court to readmit the same, and appellant shall be present on the day fixed by the Magistrate and to proceed to record statement of accused under section 313 of Cr.P.C and proceed according to law, and P.W.1 shall be cross-examined by the accused without fail on the date fixed by the Trial Court if appellant so makes an application before trial court, but prior to trial court proceeding to record statement u/S 313 of Cr.P.C.
Office of the Trial Court is directed to refund the amount deposited by the appellant/accused, if any.
Bail bond and surety bonds of accused / appellant executed before trial court to continue till conclusion of trial by trial court.
Send copy of Judgment with TCR.
(Krishnamurthy R. Padasalgi) LV Addl. City Civil & Sessions Judge, Bengaluru.