Bangalore District Court
Yathish Kumar T vs C.K. Dasappa on 25 March, 2025
KABC010255762023
IN THE COURT OF LXV ADDL CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY (CCH-66)
PRESENT
SHRI. HEMANTH KUMAR. C.R ,
B.A.L., L.L.B.,
LXV Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 25th day of March, 2025
CRL.A.No.1367/2023
PETITIONER/S :- SRI. YATHISH KUMAR T,
s/o Late.T.Thimmaiah,
Aged about 40 years,
R/at No.136, 11th cross,
BHEL Layout,
Near LG Godown,
Rajarajeshwari Nagar,
Bengaluru-560 098.
(By Sri. HMM., Advocate)
V/s.
RESPONDENT/S:- SRI. C.K. DASAPPA,
s/o Late.Kariyappa Gowda,
Aged about 68 years,
R/at No.216/1-1,
Balaji Road, 2nd Block,
Tyagarajanagar,
Bengaluru - 560 070.
(By Sri. BAS., Advocate)
2 Crl.A.No.1367/2023
JUDGMENT
This appeal is filed by the appellant under Section 374(3) of Cr.P.C., seeking to set aside the judgment of conviction and sentence passed by the XVI Additional Chief Metropolitan Magistrate Court, Bengaluru, in CC.No.23247/2021 dated 18.05.2023.
2. Brief facts of the case.-
The complainant and the accused are well-known to each from past 5 years and the accused is working in Revenue Department and had some financial commitments and he was facing departmental problems in the office during the 1st week of February 2018, the accused has approached the complainant for financial help of Rs.2 lakhs as hand loan and the complainant has arranged the sum of Rs.2 lakhs on 20.02.2018 and the complainant gave the same by way of cash to the accused at his residence. The accused at the time of receiving the said amount of Rs.2 lakhs promised to return the same within three months and after lapse of three months the complainant met the accused and asked for return of loan amount of Rs.2 lakhs. The accused postponed the return of amount with a reason that he would get arrears and return the hand loan amount to the complainant with bank interest. When the complainant has approached the accused and asked for the return of loan amount, the accused having dodged time on one or the other reason and had finally after the discussion with the complainant and accused in the month of June 2019 the accused gave two cheques bearing No.886442 and No.886443 of SB account No.54057536873 of State Bank of Mysore and asked to present the cheque in the 1st week of December and informed that after encashment of cheque the accused will return the interest amount also. The complainant having asked by accused to 3 Crl.A.No.1367/2023 present the cheques on 05.12.2019 and assured to honor the same as per the instructions of the accused, the complainant on 05.12.2019 presented two cheques through his banker Karnataka Bank, Basavanagudi Branch, Bengaluru and the said cheques were returned on 07.12.2019 with shara funds insufficient and after collecting the same cheques and returned memo, the complainant approached the accused and informed about the dishonored cheques and the accused started to give reasons and asked for time to return the amount of Rs.2 lakhs. The complainant having no other alternative has issued legal notice on 16.12.2019 through RPAD and the same has been returned as unclaimed and the accused having failed to honor the cheque and issue reply notice, the accused having committed offences U/S 138 of NI act., the complainant has filed the complaint before the Jurisdictional Magistrate for the offences P/U/S 138 of NI act.,
3. The trial court having taken cognizance of offence and has received the complaint for registration of PCR and the complainant having got examined himself as PW1 and got marked the documents as per Ex.P1 to Ex.P11 and has filed affidavit in lieu of sworn statement and the trial court has registered the case against the accused in register criminal case for the offences punishable under Section 138 of the Negotiable Instrument Act and the summons has been issued to the accused. After service of the summons, the NBW was issued against accused and the accused has appeared and filed bail application and was enlarged on bail and the accused has also filed application under Section 145(2) of the Negotiable Instrument Act, seeking permission to cross-examine PW1. The said application having been allowed, the case was posted for cross of PW1 on 31.10.2022 and the complainant has filed application U/S 143A of NI 4 Crl.A.No.1367/2023 act., and the case was posted for objections to application U/S 143A of NI act and also for cross examination of PW1 on 10.01.2023. On 10.01.2023 the PW1 was present and the accused was absent, as such the cross examination of PW1 was taken as nil and the further evidence of complainant was closed and the case was posted for 313 statement. On 01.02.2023 the accused having been remained absent the trial court has cancelled the bail bond and has forfeited the cash surety amount and NBW has been issued to the accused on 11.05.2023. On 11.05.2023 the 313 statement of accused has been dispensed and the defense evidence was taken as nil and the case was posted for arguments on 18.05.2023 and on 18.05.2023 the trial court having heard the arguments has pronounced the judgment convicting the accused for the offences P/U/S 138 of NI act and sentenced to pay fine of Rs.2,50,000/- in default he shall undergo simple imprisonment for six months. The Appellant being aggrieved by the same has preferred the appeal and also has filed IA No.1 U/S 5 of limitation act to condone the delay of 95 days in preferring the present appeal.
4. The accused being aggrieved by the same, has preferred this appeal on the following among other grounds. The appellant submits that no proof has been produced by the Respondent for having lent a sum of Rs.2 lakhs to the Appellant. The Appellant submits that the cheques bounced were given by the Appellant in discharge of the debt has not been proved and Section 313 statement of the Appellant has not been recorded but on the other hand the same has been dispensed with and there is no provision for dispensing with the statement of the Appellant. The Appellant further submits that order under challenge is passed even without affording an 5 Crl.A.No.1367/2023 opportunity to the Appellant to defend the alleged offence complained, as such the order passed by the trial court is highly illegal and is liable to be set aside by this court and the trial court has failed to appreciate the oral and documentary evidence in its proper prospective and no opportunity has been given to the Appellant to present his evidence on this point also. The Appellant submits that the trial court ought to have given sufficient opportunity to cross examine the complainant and without assigning the proper reasons the trial court hurriedly passed impugned order, as a result of which the entire impugned conviction judgment is vitiated in law and liable to be set aside by acquitting the Appellant. In view of the above discussion all the ingredients of the offence U/S 138 of NI act are not satisfied in the instant case and as such the accused is liable to be acquitted of the said offence. The Appellant submits that the impugned order dated 18.05.2023 passed by the trial court is contrary to the material on record and opposed to the well established principles of law and therefore the same is liable to be set aside. The Appellant submits that the trial court has proceeded to record finding on points in the judgment on its own surmise than appreciating the evidence in legal sense and instead of recording the legal finding, assigning valid reason, has wrongly arrived at erroneous conclusion. Thus the impugned conviction judgment is contrary to law, evidence borne out by the record hence impugned conviction judgment is liable to be set aside in toto. The Appellant submits that the trial court has not properly appreciated and considered the good number of rulings relied in the case as a result of which there is a miscarriage of justice, no other appeal has been filed except this appeal with regard to the impugned judgment of conviction in any other court. Hence, the appellant prays to set aside the order of 6 Crl.A.No.1367/2023 conviction and sentence dated 18.05.2023 passed by the XVI Addl. Chief Metropolitan Magistrate, Bengaluru in CC.No.23247/2021.
5. After registering the appeal, this court ordered for issuance of notice to the respondent. The respondent appeared through his counsel. The trial court records were secured. After receipt of the TCR the appeal was posted for arguments.
6. Heard the arguments of the Appellant and Respondent counsels.
7. In the light of grounds urged in the appeal memo, the following points arise for my consideration.-
1. Whether the appellant has made out sufficient grounds to condone the delay of 95 days in preferring the appeal?
2. Whether the appellant has made out sufficient grounds to interfere with the impugned judgment and order of conviction?
3. Whether the appellant has make out sufficient grounds to remand the case to trial court for fresh trial?
4. What Order?
8. My findings on the above points are.-
Point No.1:- In the Affirmative Point No.2:- In the Affirmative Point No.3:- In the Affirmative Point No.4:- As per the final order for the following:
REASONS
9. Point No.1:- The appellant has challenged the judgment of conviction passed by the XVI Additional Chief Metropolitan 7 Crl.A.No.1367/2023 Magistrate, Bengaluru, in CC.No.23247/2021 dated 18.05.2023 in the present appeal. The appellant has filed IA.No.I under Section 5 of the Limitation Act, to condone the delay of 95 days in filing the preset appeal. The appellant has sworn to the affidavit filed along with IA stating that he is conversant with the facts of the case and also has further contended that since last two months he was suffering from health problem or the other due to the strain caused in the election duty as he was assigned to assembly election duty which is borne out by the medical certificate obtained from BGS Global Institute of Medical Sciences and Hospital and according to the diagnosis made by the doctor suffered by him which is self explanatory to show that he have not been keeping good health and he could not contact his counsel for a long time and just went to his counsel office and he told that impugned judgment having been passed by the court and I requested him and has filed the present appeal and the delay caused in filing the appeal is not intentional but for bonafide reason and has further contended that if the said delay is not condoned the appellant would be put to great hardship and injustice will be caused to the appellant and on the other hand if the said delay is condoned no prejudice will be caused to the respondent if the said application is allowed. Hence, prays to allow the application.
10. Point No.2 & 3:- The Appellant counsel has addressed the arguments contending that the judgment passed by the trial court is contrary to law and facts. The Appellant counsel has also contended that the trial court has passed the judgment in the absence of the accused. The Appellant counsel has also contended that the trial court has not recorded the 313 statement and dispensed with recording of statement U/S 313 of Cr.P.C., whereas there is no provision for dispensing the statement of accused. The Appellant has also 8 Crl.A.No.1367/2023 contended that the trial court has not given sufficient opportunity to cross examine the complainant and without assigning proper reason the trial court has hurriedly passed the impugned order. The Appellant has also contended that the trial court has not appreciated the facts and also has not appreciated the documentary and oral evidence. The Appellant counsel has also contended that the Appellant was not keeping well and he has also produced the discharge summary and also has further contended that the Appellant being the government servant was deputed for election duty, as such the Appellant could not be present before the court and the trial court in the absence of the accused has closed the cross examination of PW1 and also taken defense evidence as nil and having dispensed the 313 statement has passed the impugned order on the same day. The Appellant counsel has also contended that the trial court has hurriedly passed the judgment and to setaside the said judgment and remand back the case to trial court for providing an opportunity to the accused to cross examine the complainant and to lead defense evidence. Hence the Appellant prays to allow the appeal.
11. The Respondent counsel has addressed the arguments contending that the Appellant being working in the Revenue Department was having departmental problem and financial commitments, as such the Appellant had approached the Respondent for a hand loan of Rs.2 lakhs and the Appellant had agreed to repay the same within three months. The Appellant having taken the hand loan of Rs.2 lakhs and failed to repay the same within six month, on demand the accused has issued two cheques for repayment of the said loan amount and the same being dishonored the complainant has filed the present case and the accused having failed to appear before the trial court and to cross examine the PW1 and also having failed to 9 Crl.A.No.1367/2023 lead defense evidence. The trial court has rightly convicted the accused for the offence P/U/S 138 of NI act., and also further contended that the Appellant has not made out any grounds in the appeal to condone the delay and to allow the appeal. Hence the Respondent prays to dismiss the appeal.
12. The complainant and the accused are well-known to each from past 5 years and the accused is working in Revenue Department and had some financial commitments and he was facing departmental problems in the office during the 1st week of February 2018, the accused has approached the complainant for financial help of Rs.2 lakhs as hand loan and the complainant has arranged the sum of Rs.2 lakhs on 20.02.2018 and the complainant gave the same by way of cash to the accused at his residence. The accused at the time of receiving the said amount of Rs.2 lakhs promised to return the same within three months and after lapse of three months the complainant met the accused and asked for return of loan amount of Rs.2 lakhs. The accused postponed the return of amount with a reason that he would get arrears and return the hand loan amount to the complainant with bank interest. When the complainant has approached the accused and asked for the return of loan amount, the accused having dodged time on one or the other reason and had finally after the discussion with the complainant and accused in the month of June 2019 the accused gave two cheques bearing No.886442 and No.886443 of SB account No.54057536873 of State Bank of Mysore and asked to present the cheque in the 1st week of December and informed that after encashment of cheque the accused will return the interest amount also. The complainant having asked by accused to present the cheques on 05.12.2019 and assured to honor the same as per the instructions of the accused, the complainant on 05.12.2019 10 Crl.A.No.1367/2023 presented two cheques through his banker Karnataka Bank, Basavanagudi Branch, Bengaluru and the said cheques were returned on 07.12.2019 with shara funds insufficient and after collecting the same cheques and returned memo, the complainant approached the accused and informed about the dishonored cheques and the accused started to give reasons and asked for time to return the amount of Rs.2 lakhs. The complainant having no other alternative has issued legal notice on 16.12.2019 through RPAD and the same has been returned as unclaimed and the accused having failed to honor the cheque and issue reply notice, the accused having committed offences U/S 138 of NI act., the complainant has filed the complaint before the Jurisdictional Magistrate for the offences P/U/S 138 of NI act., The trial court having taken cognizance of offence and has received the complaint for registration of PCR and the complainant having got examined himself as PW1 and got marked the documents as per Ex.P1 to Ex.P11 and has filed affidavit in lieu of sworn statement and the trial court has registered the case against the accused in register criminal case for the offences punishable under Section 138 of the Negotiable Instrument Act and the summons has been issued to the accused. After service of the summons, the NBW was issued against accused and the accused has appeared and filed bail application and was enlarged on bail and the accused has also filed application under Section 145(2) of the Negotiable Instrument Act, seeking permission to cross-examine PW1. The said application having been allowed, the case was posted for cross of PW1 on 31.10.2022 and the complainant has filed application U/S 143A of NI act., and the case was posted for objections to application U/S 143A of NI act and also for cross examination of PW1 on 10.01.2023. On 10.01.2023 the PW1 was present and the accused was absent, as such the cross examination 11 Crl.A.No.1367/2023 of PW1 was taken as nil and the further evidence of complainant was closed and the case was posted for 313 statement. On 01.02.2023 the accused having been remained absent the trial court has cancelled the bail bond and has forfeited the cash surety amount and NBW has been issued to the accused on 11.05.2023. On 11.05.2023 the 313 statement of accused has been dispensed and the defense evidence was taken as nil and the case was posted for arguments on 18.05.2023 and on 18.05.2023 the trial court having heard the arguments has pronounced the judgment convicting the accused for the offences P/U/S 138 of NI act and sentenced to pay fine of Rs.2,50,000/- in default he shall undergo simple imprisonment for six months.
13. The Appellant has filed the present appeal contending that the on 10.01.2023 the cross of PW1 was taken as nil and the case was posted for 313 statement on 01.02.2023. On 01.02.2023 the bail bond of the Appellant was cancelled forfeiting cash surety of Rs.2 lakhs and the NBW was issued and the case was preferred to lok- adalath and on 11.02.2023 the matter was not settled before the lok- adalath and the case was posted on 13.03.2023 on the said date the complainant and his counsel were absent and also the Appellant was absent and the NBW was reissued against the accused on 05.04.2023 the complainant and his counsel were present and steps was taken to issue NBW against accused and the case was posted on 11.05.2023. On 11.05.2023 there was no representation for accused complainant and his counsel were present and on the said date the trial court has passed the order taking defense evidence as nil and closed his side and on the same day complainant arguments were heard and the case was posted for judgment and judgment was pronounced on the same day. The Appellant has also contended that the trial court has 12 Crl.A.No.1367/2023 dispensed the statement U/S 313 of Cr.P.C., which is mandatory and also the Appellant has also contended that he could not cross examine the PW1 due to his ill-health and he was deputed for election duty. Hence the Appellant has prayed to set aside the judgment passed by XVI ACMM in CC.No.23247/2021 dated 18.05.2023.
14. The complainant has filed the present complaint, alleging that the complainant and accused are known to each other from past 5 years and the accused is working in revenue department. The accused had some financial commitments and also facing some departmental problems and during the first week of February 2018, he accused approached the complainant for financial help as hand loan of Rs.2 lakh and the complainant arranged the sum of Rs.2 lakh on 20.02.2018 and given the same by way of cash to the accused at his residence, the accused having received said amount has promised the complainant that he will return the said amount within three months.
15. On perusal of the records, it is noticed that the complainant has presented the present complaint on 21.01.2020 and the case was registered as PCR and posted for sworn statement on 20.03.2020. On 09.09.2021, the complainant has appeared and filed affidavit by way of sworn statement along with original documents and the complainant having filed the affidavit of sworn statement and Exs.P.1 to 11 are marked and the trial court has ordered for registration of criminal case against accused for the offence punishable under section 138 of NI Act and the summons was issued to the accused. On service of summons, the accused has appeared through his counsel on 23.09.2022 and he was enlarged on bail and the plea of the accused was recorded and the accused has not pleaded guilty and he has stated that he has defense to make and also 13 Crl.A.No.1367/2023 has filed application under section 145(2) of NI Act seeking permission to cross-examine PW1. The said application filed under section 145(2) of NI Act was allowed and the case was posted for cross-examination of PW1. The complainant has also filed application under section 143A of NI Act. The case was presented for objections to application under section 143A of NI Act and for cross of PW1. On 10.01.2023 the cross examination of PW1 was taken as nil and case was posted for 313 statement of the accused. The accused having not appeared in spite of issuance of NBW, the trial court on 01/02/2023 the bail bonds were cancelled and the cash security amount was forfeited. On 11/05/2023, the trial court has dispensed the 313 statement of the accused and has passed the impudent judgment convicting the accused for the offense punishable under section 138 of the NI Act sentencing to pay a fine of 2,50,000 and in default, he shall undergo simple imprisonment for six months the appellant being aggrieved by the same, has challenge the same before this court in the present appeal.
16. The appellant has contended that he was not given the opportunity to cross-examine the PW1 and has also contended that the trial court without giving the opportunity to cross-examine the PW1 and having not recorded the statement under section 313 of Cr PC and the same was being dispensed and also has not provided the opportunity to the accused to lead the defense evidence has convicted the accused for the offence under section 138 of the NI act. The appellant has also produced the documents contending that he has been deputed for the election duty by the BBMP and as such, he could not appear before the Court and prosecute the case.
17. On perusal of records, it is noticed that the appellant has preferred the present appeal challenging the order passed by the trial 14 Crl.A.No.1367/2023 Court convicting the appellant u/s.138 of NI Act in C.C.No.23247/2021 dated 18.05.2023 by XVI ACMM. In the present case, the trial Court after securing the accused, the case was posted for cross-examination of P.W.1 as the accused had filed application u/s.145(2) of NI Act and the accused has not pleaded guilty. The trial Court having given opportunity for cross-examination, the accused has not availed the opportunity. The accused having remained absent, the trial Court has dispensed statement u/s.313 of Cr.P.C and passed the impugned order. The appellant now having contended that he has not been given fair opportunity has produced documents to substantiate as to why he could not appear before the Court to conduct the trial. The appellant has produced the documents to show that as he was working in BBMP, he has been deputed for Assembly election duty. The said documents substantiate that the appellant was deputed to the election duty. As the election duty is mandatory and for the said reason, the appellant could not appear before the Court and conduct trial. On looking into the documents produced and the grounds urged, if the appellant is provided an opportunity to contest the case on merits, no hardship would be caused to the respondent. Whereas, if the fair trial is not conducted, the appellant would be denied as his valuable right of fair trial and so also in the present case, the trial Court has not complied the mandatory provision of recording statement of accused u/s.313 of Cr.P.C as the same cannot be dispensed.
18. It is necessary to discuss, at this juncture, Section 313 Cr.P.C., as the trial court has not recorded the statement of accused under Section 313 Cr.P.C. Section 313 (1) (b) of Cr.P.C., mandates that, in every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence 15 Crl.A.No.1367/2023 against him, the court shall after the witness of the prosecution have been examined and before he is called on for his defense, question him generally on the case. But the proviso to Section 313(1) of Cr.P.C., provides that in a case where personal appearance of accused has already been dispensed with the court may also dispensed with his examination under Clause (b) (1) of Section 313. There is a scope for dispensing with the recording of statement of accused under Section 313 Cr.P.C., if the personal attendance of the accused was dispensed with under Section 205 Cr.P.C., in summons case. However, in the case on hand personal attendance of the accused was not dispensed by the trial court under Section 205 of Cr.P.C. under such circumstances dispensing of recording of the statement of accused is mandatory, in this case.
19. Now I would like to discuss the scope of Section 313 of Cr.P.C. The scope of Section 313 of Cr.P.C., is very wide. It is not a mere empty formality. The object of recording of Section 313 of Cr.P.C., is to put all incriminating evidence to the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of prosecution/ complainant. Thus plain reading of Section 313 of Cr.P.C clearly show that, the questioning under Section 313 Clause 1(a) is not mandatory whereas questioning under Clause 1(b) of Section 313 of Cr.P.C. is mandatory.
20. Further, as per Section 313(1)(a) of Cr.P.C., the court may at any stage of the proceedings without previously warning the accused put such question to him as the court considered as necessary. Here in the present case the trial court has proceeded to dispense with the recording of the statement of accused under Section 313 Cr.P.C. As per Section 313(1)(a), the court ought to 16 Crl.A.No.1367/2023 have record the statement of the accused under Section 313 Cr.P.C. The Trial Court ought to have secure the accused by taking stringent steps, and same is not done in the present case. In my view, the examination of the accused under Section 313 Cr.P.C., cannot be dispensed with for the absence of the accused. To comply this mandatory procedure the court has to take coercive steps for securing the accused for the said purpose. However, when the personal attendance of the accused was dispensed with under Section 205 Cr.P.C., recording the statement of accused under Section 313 Cr.P.C., can be dispensed with. However, the same is not done in the present case. Hence, it is necessary to examine the accused under Section 313 Cr.P.C., The trial court ought to have recorded the statement of accused under Section 313 Cr.P.C., by securing the presence of accused, by taking coercive steps.
21. Since the trial court has not recorded the statement of accused under Section 313 of Cr.P.C., in view of the judgment laid down by the Hon'ble High court of Karnataka in G.H. Abdul Kadri vs. Mohammed Iqbal reported in 2022 SCC Online KAR 1478, wherein the Hon'ble High court of Karnataka has held that.-
Chapter XXIII of Code of Criminal Procedure deals with evidence in inquiries and trials and this chapter is applicable irrespective of the nature of trial, whether it be summary or summons or warrant or sessions. Section 273 which is a part of Chapter XXIII clearly states as below:
"273. Evidence to be taken in presence of accused. Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader.17 Crl.A.No.1367/2023
Explanation,- In this section," accused"
includes a person in relation to whom any proceeding under Chapter VIII has been commenced under this Code."
12. Reading of this section makes it very clear that the evidence must be taken in the presence of the accused and it may be recorded in the absence of the accused if it is expressly provided in Cr.P.C. If the personal attendance of the accused is dispensed with, evidence may be recorded in the presence of the pleader of the accused. The only provision that provides for recording of evidence in the absence of the accused is section 299.
Therefore it is clear that except under Section 299, evidence cannot be recorded for any other reason in the absence of the accused.
13. In the case on hand, it is not in dispute that the petitioner did not appear before the court. If the petitioner did not appear having received summons, the trial court ought to have issued warrant and then proclamation for securing his presence. The records do not disclose any such effort being made by the trial court to secure the presence of the accused. This is the blatant error that can be pointed out from the judgment of the trial court. It is trite to observe here that in the Code of Criminal Procedure, there is no provision for keeping an accused exparte similar to one found in Code of Civil Procedure which provides for placing a defendant exparte if there is due service of summons or notice on him. The reason may perhaps be due to requirement that trial is to be held in the presence of the accused. If for any reason the presence of the accused cannot be secured despite exhausting every mode of service, especially in relation to offences under special laws, including Negotiable Instruments Act and if evidence is to be recorded in the absence of the accused, law requires to be amended-The legislature must think of bringing suitable amendment to Code of Criminal Procedure or to the 18 Crl.A.No.1367/2023 special law to enable the court to conduct the proceedings in the absence of the accused. The amendment, perhaps, may deter unscrupulous elements who would resort to avoiding service of summons or execution of warrant against them.
14. The trial court has then dispensed with examination of the accused under section 313 of Cr.P.C. The accused did not appear and examining him under this section did not arise. But the trial court has given some reasons again based on the judgment in Indian Bank Association. The appellate court holds that the conclusion of trial court to dispense with recording of statement under section 311 Cr.P.C. is also supported by another judgment of the Supreme Court in the case of Basavaraj R Patil v. State of Karnataka [(2000) 8 SCC 740] and of the coordinate Bench of this court in Cheminova India Limited v. Jajee Pesticides [ILR 2013 Kar 5]. Therefore appellate court is also of the view that recording of statement of the accused under section 313 Cr.P.C. can be dispensed with.
15. Now if these decisions are read, Indian Bank Association does not discuss the aspect of examining the accused under section 313 Cr.P.C; and it has given certain directions for the trial of the cases under section 138 of Negotiable Instruments Act. In Basavaraj R. Patil, the discussion pertains to alternative mode of obtaining statement of accused without securing his personal presence. What is held is:
"24. We think that a pragmatic and humanistic approach is warranted in regard to such special exigencies. The word "shall in clause (b) to Section 313(1) of the Code is to be interpreted as obligatory on the Court and it should be complied with when it is for the benefit of the accused. But if it works to his great prejudice and disadvantage the Court should, in appropriate cases, e.g., if the accused satisfies the court that he is unable to reach the venue of the court, except by bearing huge expenditure or that he is unable to travel the long journey due to 19 Crl.A.No.1367/2023 physical incapacity or some such other hardship relieve him of such hardship and at the same time adopt a measure to comply with the requirements in Section 313 of the Code in a substantial manner. How this could be achieved?
25. If the accused (who is already exempted from personally appearing in the Court) makes an application to the court praying that he may be allowed to answer the questions without making his physical presence in court on account of justifying exigency the court can pass appropriate orders thereon, provided such application is accompanied by an affidavit sworn to by the accused himself containing the following matters : (a) A narration of facts to satisfy the court of his real difficulties to be physically present in court for giving such answers,
(b) An assurance that no prejudice would be caused to him, in any manner, by dispensing with his personal presence during such questioning. (c) An undertaking that he would not raise any grievance on that score at any stage of the case."
Therefore, I am of the opinion that trial conducted by the trial court has been vitiated, as such, the impugned judgment passed by the trial court without complying mandatory requirement of Section 313 of Cr.P.C. is erroneous. Accordingly, I answer points No.2 and 3 in the affirmative.
22. Point No.4: In view of my findings on points No.1 and 2, I proceed to pass the following:
ORDER The appeal filed by appellant under Section 374(3) of Code of Criminal Procedure is hereby allowed.
The impugned judgment and order of conviction passed by XVI Additional Chief Metropolitan Magistrate Court, Bengaluru, in 20 Crl.A.No.1367/2023 CC.No.23247/2021 dated 18.05.2023 is hereby set aside and remanded back to the trial Court for fresh trial.
Both parties are hereby directed to appear before the trial court on or before 28.04.2025 without waiting for fresh notice or summons from the trial Court.
The trial court is directed to dispose the C.C.No.23247/2021 expeditiously without granting any unnecessary adjournments to complainant and the accused.
The office is hereby directed to send back records forthwith along with a certified copy of this judgment to the trial Court.
(Dictated to the typist, typed by her, corrected and then pronounced by me in the Open Court on this 25th day of March, 2025) (HEMANTH KUMAR C.R.) LXV Addl. City Civil & Sessions Judge, Bengaluru.