Bangalore District Court
Dr.Surendr Nath Singh vs P.Ashok Kumar S/O Prabhudas on 22 February, 2022
KABC010003052017
IN THE COURT OF THE LXIII ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-64) AT BENGALURU.
Dated this Tuesday the 22nd day of February 2022
P R E S E N T :-Sri. B.VENKATESHA B.Sc., LL.B.,
LXIII ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
Crl.A.No.13/2017
APPELLANT : Dr.Surendr Nath Singh
Proprietor, Saint Morgan
Pharmaceuticals, Aged about 66 years,
No.14, 4th Cross, JCI Layout,
Kanakapura Road, Bengaluru - 67.
(By Sri. N.V.Vasanth., Adv.,)
-V/s-
RESPONDENT : P.Ashok Kumar S/o Prabhudas
Aged about 49 years,
No.106, Soundarya Links,
Link Road, Sheshadripuram,
Bengaluru - 20.
(Absent)
JUDGMENT
The appellant has filed this appeal U/Sec.374(3) of Cr.P.C against the respondent challenging the judgment and sentence order dated 16-07-2016 passed in C.C.No. 2 Crl.A.13/2017 29165/2015 on the file of Court of XV ACMM, Bengaluru. The appellant is accused and that respondent is the complainant before the trial court. Therefore, for the sake of convenience, the parties to this appeal are herein afterwards referred with their ranks before the trial Court.
2. The brief facts as set out in the Memorandum of Appeal are that the complainant has filed complaint under Section 200 Cr.P.C alleging that he know the accused since one year and the accused has created confidence with the complainant. The accused as Proprietor/Authorised Signatory of M/s Saint Morgan Pharmaceuticals, approached the complainant and has borrowed a sum of Rs.4 lakhs on 24-11-2014 for the purpose of business. The accused offered personal guarantee of Mr.Rohit and executed an On Demand Promissory Note and Consideration Receipt. To discharge the liability, towards part payment, the accused had issued two cheques bearing No's.001735 and 001745 dated 24-08-2015 and 24-09-2015 for Rs.50,000/- and Rs.1,50,000/- respectively, drawn on Kotak Mahindra Bank, J.P.Nagar Branch, Bengaluru, in favour of the complainant. When the complainant has presented the said cheques through Kotak Mahindra Bank, J.P.Nagar Branch, Bengaluru, for encashment, the said cheques returned to him as unpaid on 05-10-2015 due to "payment stopped by drawer". In spite of issuance of legal notice on 29-10-2015 through RPAD and that its service on 02-11-2015, the accused has 3 Crl.A.13/2017 failed to repay the loan amount. Therefore, it was alleged that the accused has committed the offence punishable under Section 138 of N.I.Act.
3. The Trial Court has registered the said complaint as C.C.29165/2015 and has issued summons to the accused. In pursuance of service of summons, the accused has appeared before the Trial Court. He was enlarged on bail. He has pleaded not guilty of the offence punishable under Section 138 of N.I.Act. Therefore, the complainant was examined as P.W.1 and that he got admitted 10 documents as Ex's.P.1 to Ex.P.10 and closed his side of evidence. No evidence adduced on behalf of the accused.
4. By means of impugned judgment and sentence order dated 16-07-2016, the trial Court has found that the accused is guilty of the offence punishable under Section 138 of N.I.Act. Therefore, the Trial Court has convicted the accused by way of imposing fine of Rs.4,80,000/- as stated in the Joint Memo and if the said amount is deposited, the same shall be paid to the complainant as compensation and that in default of payment of fine, the Trial Court has directed the accused to undergo simple imprisonment for a period of six months.
5. Being aggrieved by the impugned judgment and sentence order of the Trial Court, the accused has preferred this appeal contending that the learned Magistrate had passed the common judgment in all the three cases which 4 Crl.A.13/2017 was ended with compromise by filing Joint Memo agreeing to repay the cheque amount, in terms of the settlement the complaints of the complainant was disposed of. While disposing the said complaints, the learned trial Judge passed the judgment convicting the accused which is highly illegal, erroneous, bad in law and without jurisdiction and that it is liable to be set-aside. The alleged offence against the accused is compoundable in nature and that it is ended with compromise. That being the state of affair, convicting the accused in default of payment is not permissible under any stretch of law, same is liable to be set-aside. The option left out is only to dispose of the matter in terms of the compromise. The trial Judge has no jurisdiction to reopen the case which was disposed of in terms of compromise and further erred by issuing the FLW and NBW. The trial Judge could have directed the complainant to redress the course of action in default of Joint Memo, without doing so, issuing FLW and NBW against the accused is behind his jurisdiction where the matter was disposed of in terms of Joint Memo. The order of the trial Judge in terms of Joint Memo is nothing but a decree. The option left out is to file necessary application before the competent Court to execute the same. Without doing so, issuing FLW and NBW is behind his jurisdiction and same is liable to be set-aside. Therefore, he has sought to set aside the impugned judgment and sentence order of the Trial Court. He has sought for his 5 Crl.A.13/2017 acquittal of the offence punishable under Section 138 of N.I.Act.
6. Along with the appeal, the accused has filed I.A. under Sec.5 of the Limitation Act for condonation of delay if any in preferring this appeal contending that, the present case ended with compromise as per the Joint Memo. In terms of the Joint Memo, the learned trial Judge disposed of the matter. Thereafter, he had complied in accordance to Joint Memo till November. Due to demonetization, he could not arrange the payment. Therefore, delay was occurred in filing this appeal. The said delay is not intentional. Therefore, the accused has sought for condonation of delay in filing this appeal.
6. After service of notice of this appeal, the complainant has failed to put his appearance through his counsel. Trial Court record has been secured. Heard the arguments of the learned Counsel appeared for the appellant. The appellant remained as absent throughout the proceedings of this appeal.
7. Perused the contents of Memorandum of Appeal, impugned judgment and sentence order and the evidence placed before the Trial Court with reference to aforesaid case law.
8. The points that arise for my consideration are as under:
6Crl.A.13/2017
1. Whether there is sufficient cause to condone the delay in filing this appeal?
2. Whether the Trial Court has erred in properly appreciating the evidence placed before it, with reference to the facts and circumstances of this case?
3. Whether the impugned judgment and sentence order warrants interference by this Court?
4. What Order ?
9. My findings on the above points are as under:
Point No.1 :- As in the affirmative,
Point No.2 :- As in the affirmative,
Point No.3 :- As in the affirmative,
Point No.4 :- As per the final order,
for the following:
REASONS
10. Point No.1 :- Impugned judgment and sentence order was passed on 16-07-2016. But, the accused has preferred this appeal on 04-01-2017. The appellant has contended that due to demonetization, he could not arrange the payment. Therefore, delay was occurred in filing this appeal. Reason quoted is genuine one. Hence, 7 Crl.A.13/2017 this Court is of the opinion that there is sufficient cause to condone the delay in filing this appeal. Therefore, I answered the Point No.1 as in the Affirmative.
11. Points No.2 & 3: These points are inter- linked with each other. Therefore, these points are taken up together for joint consideration to avoid repetition of facts. Before the Trial Court, PW.1 has deposed his side evidence in accordance with the contents of the complaint. He is not cross-examined. Statement U/Sec.313 of Cr.P.C. also has not been recorded.
12. Ex's.P.1 & 2 cheques dated 24-09-2015 and 24-08-2015 disclosed that the accused has issued the said cheques to the complainant for Rs.1,50,000/- and Rs.50,000/- that drawn on Kotak Mahindra Bank, J.P.Nagar Branch, Bengaluru. Ex's.P.3 & 4 Memos dated 08-10-2015 and 05-10-2015 disclosed that Ex's.P.1 & 2 cheques have been bounced on 05-10-2015 due to payment stopped by drawer. It is clear that the said cheques have been presented within 6 months from 24-09-2015 and 24-08- 2015. Ex.P.5 legal notice dated 29-10-2015 disclosed that the complainant has issued notice to accused within 30 days from 08-10-2015 and 05-10-2015 and has demanded him for payment of Rs.2,00,000/- within 15 days from the date of its service. Ex's.P.6 & 7 are postal acknowledgments discloses that the legal notice marked at Ex.P.5 has been served to the accused on 02-11-2015 and 8 Crl.A.13/2017 31-10-2015. Ex's.P.8 & 9 are postal receipts dated 29- 10-2015 disclosed that the said notice has been sent through registered post to the two addresses of the accused. Ex.P.10 the reply notice dated 13-11-2015 issued by the accused to the complainant. Complaint was lodged on 04-12-2015 i.e., within 30 days after expiry of 15 days from 31-10-2015 and 02-11-2015. On perusal of the said documents, it is clear that the complainant has complied the provisions as contained in provisos (a) to (c) of Sec.138.
13. In a case law reported in 2011 SAR (Criminal) 197, TGN Kumar -V/s- State of Kerala and Others, wherein the 3 Judges Bench of the Hon'ble Apex Court has laying down the general directions. At para 13 the Hon'ble Apex court has held that "on the plain language of Sec.313 Cr.P.C, it is evident that in a summons case, when the personal appearance of the ac has been dispensed with under Section 205 of the Code, a discretion is vested in the magistrate to dispense with the rigour of personal examination of the accused under section 313 of Code as well." At para 14 the Hon'ble Apex Court, by relying case law reported in 2000(8) SCC 740, Basavaraja R.Patil & Others V/s State of Karnataka and Others, has held that "if the accused (who is already exempted from personally appearing in the Court) makes an application to the Court praying that the may be allowed to answer the questions 9 Crl.A.13/2017 without making his physical presence in the 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 satisfying 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."
14. Proviso Clause of Sec.313(1) of Cr.P.C provides 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 of Sec.313(1) of Cr.P.C''. Section 262(1) of Cr.P.C provides that ''the procedure specified in this code for the trial of summons case shall be fallowed in a trials under chapter 21 of Cr.P.C''.
15. Order sheet of trial court is not discloses that the trial court has dispensed the personal attendance of the accused before it at the time of the trial of this case. It is true that trial U/Sec.143 is summary trial. It is for non- appearance of the accused, statement under Sec.313 10 Crl.A.13/2017 Cr.P.C., has not been recorded. Why he is absent before the trial Court for their examination under Sec.313 Cr.P.C has not been properly explained by the accused. The 3 Judges bench of the Hon'ble Apex court in a case reported in 2000(8) SCC 740, Basavaraj R.Patil V/s State of Karnataka and Others, has held that "It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him". The personal appearance of the accused has not been dispensed with. The accused has not filed IA for dispensation of recording of his statement in his presence. The Hon'ble Apex Court in Indian Association Bank's case has not stated anything regarding dispensation of recording of statement of accused under 313 Cr.P.C. The said case was disposed in the absence of the accused and his counsel. As per section 313(1) Cr.P.C and as per the afore said case laws, in view of non dispensation of personal attendance of the accused during trial, dispensation of recording of statement of the accused is not a correct view.
16. The Hon'ble Apex Court, in Crl.Appeal No.546/2011 MD Sukur Ali v/s State of Assam, disposed on 24.02.2011 by relying case laws of Supreme Court of United States reported in 287 US 45 (1932), 372 US 335 (1963) and 430 US 387 (1977) and Hon'ble Apex Court reported in AIR 2011 SC 308, 2008(9) SCC 542, 2005(11) SCC 412 and AIR 1978 SC 597 respectively has held that 11 Crl.A.13/2017 ''In the absence of a counsel, for whatsoever reasons, the case should not be decided forthwith against the accused but in such a situation the Court should appoint a counsel who is practicing on the criminal side as amicus curiae and decide the case after fixing another date and hearing him"
The Hon'ble Apex Court has further held that "
If on the next date of hearing the Counsel, who ought to have appeared on the previous date but did not appear, now appears, but cannot show sufficient cause for his non-appearance on the earlier date, then he will be precluded from appearing and arguing the case on behalf of the accused. But, in such a situation, it is open to the accused to engage another counsel or the Court may proceed with the hearing of the case by the counsel appointed as amicus curiae."
The Hon'ble Apex Court has further held that "if the criminal case (whether a trial or appeal or revision) is decided against accused in the absence of a Counsel, there will be violation of Article 21 of the Constitution".
17. Sec.353(1) Cr.P.C. provides that the judgment in every trial in any criminal court of original jurisdiction shall be pronounced in open court by the Presiding Officer 12 Crl.A.13/2017 immediately after termination of the trial or at subsequent time of which notice shall be given to the parties or their pleaders. Record reveals that cross-examination of PW.1 has not been completed. 313 statement of the accused has not been recorded. Defence evidence also has not been recorded. So it is clear that trial of the case has not been terminated as provided under Sec.353(1) Cr.P.C. At Para-10 the trial Court has held that the complainant and accused have filed Joint Memo admitting the liability of the accused to the extent of Rs.4,80,000/-. Further the accused has agreed to pay the said amount in 12 installments of Rs.40,000/- each commencing from 09-08-2016 till 09-07- 2017. When the accused has admitted the liability accused is liable to be convicted by incorporating default clause. Based on the Compromise Memo of both parties, pronouncing judgment and passing sentence order is not known to law. Therefore, the trial Court has erred in passing the impugned judgment and conviction order. The impugned judgment and sentence order passed by the trial Court is liable to be set-aside. Matter requires to be remitted back to the trial Court for fresh disposal as per law either to dispose the case by passing order on the Joint Memo, if parties agreed or holding full fledged trial as contemplated under Cr.P.C. Therefore, I answer the aforesaid points No.2 & 3 as in the Affirmative.
13Crl.A.13/2017
18. Point No.4: In view of the above discussion and the findings on points No.1 to 3, I proceed to pass the following:
ORDER Appeal filed by the appellant/accused is hereby allowed.
The judgment and order of conviction passed against the accused dated 16-07-2016 passed in C.C.No.29165/2015 on the file of Court of XV ACMM, Bengaluru is hereby set aside. [ Matter is remanded back to the trial court for fresh disposal from the stage of passing order on Joint Memo dated 14-07-2016 or to hold trial as per law. If Joint Memo is not accepted as per law, the trial court shall pronounce the judgment after recording statement of the accused as per Sec.313 Cr.P.C and recording his defence evidence if any. In case of absence of counsel for accused, the Trial Court shall follow the procedure as prescribed by the Hon'ble Apex Court in a case law as stated in Crl.Appeal No.546/2011 MD Sukur Ali v/s State of Assam, disposed on 24.02.2011 (as stated supra). In case of absence of accused, the trial Court shall follow the procedure as contemplated under Cr.P.C.14
Crl.A.13/2017 Without expecting prior notice, both parties shall be present before the trial Court on 01-04-2022 at 11.00 a.m without fail.
The trial court shall make effort to dispose of the said case as early as possible.
Send back trial Court record with copy of this Judgment.
(Typed by the Judgment Writer on my dictation, the transcript revised and then pronounced by me in open court on this Tuesday the 22nd day of February 2022).
(B.VENKATESHA) LXIII ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU