Bangalore District Court
V.Prakash vs R.Santhosh on 20 February, 2023
KABC010018762022
IN THE COURT OF THE LXIII ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-64) AT BENGALURU
Dated this the 20th day of February 2023
: PRESENT :
Sri.A.V.Patil, B.Com., LL.B.,
LXIII ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
CRIMINAL APPEAL No.94/2022
APPELLANT : V.Prakash
S/o Late.K.R.Venugopal,
Aged about 50 years,
Residing at No.9/1, 2nd Floor,
6th Main, Srikanteshwaranagar,
Nandini Layout Post,
Bengaluru - 560 096.
(By Sri.C.P.Praveen, Advocate)
-V/s-
RESPONDENT : R.Santhosh
S/o Late.V.Ramachandra,
Aged about 38 years,
Residing at No.202/A,
14th Main, Subramanyanagar,
Bengaluru - 560 021.
(By Sri.K.T.Govinde Gowda,
Advocate)
2 Crl.Apl.No.94/2022
JUDGMENT
This appeal has been filed by the accused u/s 374(3)(a) of Cr.P.C., being aggrieved by the conviction judgment passed in C.C.No.5924/2019 dated 20.12.2021 by learned XII ASCJ and ACMM, Bengaluru. Appellant was accused before the Trial Court filed by the respondent/complainant for an offence punishable u/s 138 of NI Act.
2. The parties will be referred as the complainant and accused as per their ranking given in the Trial Court.
3. The gist of the complainant's case is as under:
From last 20 years the complainant and accused known to each other in the field of Transport business. By virtue of the said acquaintance, the accused requested the complainant financial assistance to the tune of Rs.2,50,000/- for purchase of transport of vehicle and improvement of the existing transport business. On 10.09.2018, the complainant lent an amount of Rs.2,50,000/- to the accused by cash. The accused promised to return the said amount within 8 months. Accused has also issued postdated cheque bearing No.658970 dated 3 Crl.Apl.No.94/2022 18.09.2019 for Rs.2,50,000/- drawn on Dhanalakshmi Bank, Peenya Branch, Bengaluru, in favor of the complainant. The accused fails to keep the promise made by him and unable to repay the loan amount. Therefore, the complainant presented the said cheque for encashment through his banker, but the said cheque was dishonoured with a reason 'Account Dormant' with an endorsement dated 20.09.2018. Thereafter, complainant got issued legal notice to the accused on 03.10.2019, calling upon the accused to pay the cheque amount. Even after receipt of the said legal notice, accused fails to comply with the demand made therein. According to the complainant, the accused has committed an offence punishable u/s 138 of NI Act. Accordingly, the complainant has filed the complaint.
4. Trial Court records disclose that as prima facie material produced by the complainant, taken cognizance for the offence punishable u/s 138 of N.I.Act and ordered to register criminal case against the accused.
5. As per the Trial Court records, in pursuance of service of summons, accused appeared and got enlarged on bail. On 18.01.2020 plea was read over 4 Crl.Apl.No.94/2022 and explained to the accused. He pleaded not guilty and claims to be tried.
6. In order to prove the guilt of accused, complainant examined as PW1 and got marked Ex.P1 to P5.
7. On 12.02.2020, the complainant filed IA u/o 143(A) of NI Act and u/s 311 of Cr.P.C., to recall the PW1 for further evidence. Both the IA's filed by the complainant came to be allowed by the Trial Court and PW1 recalled for further evidence and accused is directed to pay 20% of the cheque amount within 60 days from the date of passing of the order i.e., 17.03.2021. As the accused fails to pay 20% of the amount as ordered by the Court within the time prescribed by the Trial Court, the cross of PW1 was taken as nil. As the accused fails to appear to record 313 statement, NBW came to be issued. On 15.12.2021, with the observation that the accused cannot be permitted to put-forth his defence and matter posted for judgment and considering the material on record, the learned Trial Judge has convicted the appellant/accused and passed the conviction judgment.
5 Crl.Apl.No.94/20228. Being aggrieved by the said conviction judgment the accused/appellant has questioned legality of the judgment in this appeal. The accused has challenged the judgment on following grounds:-
The appellant/accused challenged the finding of the Trial Court on various grounds. According to the appellant, the accused was not provided with sufficient opportunity to establish his defence by the Trial Court. After recording the plea and after adducing the evidence of PW1 complainant filed application u/s 143(A) of NI Act and application u/s 311 of CR.P.C to adduce further evidence and both applications came to be allowed, but the accused fails to pay the amount due to financial crises. As the accused remain absent NBW was issued against him and pending NBW the case posted for judgment and on 20.12.2021 pronounced the judgment. The Trial Court has not given opportunity to the accused to participate in the trial due to non-deposit of compensation amount as per the order passed on 17.03.2021. The said finding of the Trial Court is illegal not sustainable. Hence, he prayed to remit back the case to the Trial Court to dispose of the case by giving opportunity to the accused to 6 Crl.Apl.No.94/2022 participate in trial.
9. In pursuance of service of notice, the respondent appeared through his Counsel.
10. The entire records of CC No.5924/2019 have been called for and perused.
11. The learned Counsel for appellant vehemently argued and reiterated the grounds urged in the appeal memo. According to him, the Trial Court has bypassed all the provisions of law and erroneously convicted the accused. He has taken this Court to the order passed on 13.09.2021 and submits that the accused failed to deposit 20% of the cheque amount as per the order passed by it. Therefore, accused cannot be permitted to put his defence and posted the matter for judgment. According to him if at all, the accused fails to comply with the order of the Trial Court about depositing 20% of the cheque amount, then the it has to recover as per the Sec.143(5) of NI Act. In the instant case, the Trial Court without exhausting the remedy provided u/s 143(5) of NI Act, has not permitted the accused to participate in the trial which is against the principles of natural justice. The Trial Court has not recorded the accused 7 Crl.Apl.No.94/2022 statement and not permitted the accused to adduce evidence. As the appellant has not at all participated in the trial, he prayed to set aside the conviction judgment and remand the matter to the Trial Court for fresh disposal by following the proper procedures
12. As it could be seen from the order sheet, even after granting sufficient opportunities the Advocate for respondent appellant remained absent. Therefore, the arguments of the respondent side taken as not addressed. In the interest of justice the respondent was permitted to file written arguments. However, the Advocate for respondent failed to file written arguments and therefore the written arguments of respondent side taken as not filed.
13. The following points that arise for my consideration are:
1. Whether the Trial Court has committed error in convicting the accused without giving opportunity to participate in the trial for non-payment of 20% amount as ordered by it?
2. Whether the judgment of Trial Court calls for interference?
3. What order?
14. My answer to the above points are as under:
8 Crl.Apl.No.94/2022Point No.1 & 2 : In the affirmative Point No.3: As per final order for the following;
REASONS
15. Point No.1:- It is the definite case of the complainant and accused known to each other from last 20 years in the filed of Transport business. By virtue of the said acquaintance, the accused requested the complainant financial assistance to the tune of Rs.2,50,000/- for purchase of transport vehicle and improvement of the existing transport business. On 10.09.2018, the complainant lent an amount of Rs.2,50,000/- to the accused and accused promised to return the said amount within 8 months. Accused has also issued postdated cheque bearing No.658970 dated 18.09.2019 for Rs.2,50,000/- drawn on Dhanalakshmi Bank, Peenya Branch, Bengaluru, in favor of the complainant. As the accused fails to keep the promise made by him, the complainant presented the said cheque for encashment through his banker, but the said cheque was dishonoured with a reason 'Account Dormant' with an endorsement dated 20.09.2018. Thereafter, complainant got issued a legal notice but the accused not claimed the said notice and failed to pay the 9 Crl.Apl.No.94/2022 cheque amount as demanded in the legal notice.
16. In order to prove his case, complainant Sri.R.Santhosh was examined as PW1 on oath by filing affidavit and has reiterated the allegations made in the complaint. He got marked documents Ex.P1 to
5. The Ex.P1 is the cheque, Ex.P2 is the Bank endorsement, Ex.P3 is the legal notice, Ex.P4 is the postal receipt, Ex.P5 is the postal acknowledgment.
17. Before considering the arguments submitted before the Court, I feel it is just and proper to extract the relevant portion of the order passed by the Hon'ble High Court of Gujarath in in R/SCR.A/6796/2019:-
"1. Prima facie, it appears that the Court cannot struck-of the defence on account of non-payment of 20% of the interim compensation amount at the time of recording of plea.
2. Looking to the provisions contained under Sec.143-A of the NI Act, it cannot be applied to the pending cases as per the decision of the Hon'ble Punjab and Haryana High Court at Chandigarh rendered in the case of M/s Ginni Garments and another V/s M/s Sethi Garments passed in CRR No.9872-2018 (O&M) on 04.04.2019.
3. Apart from it, if any order is passed u/s 143-A of the NI Act, in that event, the complainant can recover such amount as 10 Crl.Apl.No.94/2022 provided u/s 421 of the Code of Criminal Procedure. Therefore, present petition deserves consideration."
18. As per the view taken in the above order prima facie Court cannot struck-off the defence on account of non-payment of 20% of the interim compensation amount at the time of recording of plea and if any order is passed u/s 143-A of the NI Act, in that event, the complainant can recover such amount as provided u/s 421 of the Code of Criminal Procedure.
19. In the instant case on perusal of Trial Court records, it is noticed that on 17.03.2021. Trial Court passed an order on the application filed by the Advocate for complainant u/s 311 of Cr.P.C. The said application was allowed and permitted to the complainant to adduce further evidence of PW1.
20. Trial Court also passed an order on the application filed by the Advocate for complainant u/s 143(A) of NI Act. The said application was allowed and accused is ordered to deposit 20 % of amount in respect of cheque in question. Further on 15.12.2021 Trial Court passed an order that accused failed to deposit of 20% of the cheque amount, hence the accused cannot be permitted to put his defence and 11 Crl.Apl.No.94/2022 recording accused statement u/s 313 of Cr.P.C. is dispensed with, defence arguments taken as nil that too in the absence of accused and posted the matter for judgment and pronounced the judgment.
21. In view of the observation made by the Trial Court it is beneficial to know the provisions of Section 143-A of the N I Act. The said provision was inserted by virtue of amendment Act 2018 (20 of 2018) with effect from 01.09.2018. For the sake of convenience, Sec.143-A of NI Act is extracted and reproduced hereunder;
Sec.143-A - Power to direct interim compensation -
1. Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the Court trying an offence under section 138 may order the drawer of the cheque to pay interim compensation to the complainant--
(a) in a summary trial or a summons case, where he pleads not guilty to the accusation made in the complaint; and
(b) in any other case, upon framing of charge.
2. The interim compensation under sub-
section (1) shall not exceed twenty percent of the amount of the cheque.
3. The interim compensation shall be paid within sixty days from the date of the 12 Crl.Apl.No.94/2022 order under sub-section (1), or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the drawer of the cheque.
4. If the drawer of the cheque is acquitted, the Court shall direct the complainant to repay to the drawer the amount of interim compensation, with interest at the bank rate as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial year, within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the complainant.
5. The interim compensation payable under this section may be recovered as if it were a fine under section 421 of the Code of Criminal Procedure, 1973.
6. The amount of fine imposed under section 138 or the amount of compensation awarded under section 357 of the Code of Criminal Procedure, 1973, shall be reduced by the amount paid or recovered as interim compensation under this section.
22. On plain reading of the provisions of Sec.143-A of NI Act, the Court trying an offence under section 138 may order the drawer of the cheque to pay interim compensation to the complainant, interim compensation under sub-section (1) shall not exceed 13 Crl.Apl.No.94/2022 twenty percent of the amount of the cheque, the interim compensation so ordered shall be paid within sixty days from the date of the order under sub- section (1), if the drawer of the cheque is acquitted, the Court shall direct the complainant to repay to the drawer the amount of interim compensation, with prevailed bank interest within sixty days from the date of the order, the interim compensation payable under this section may be recovered as if it were a fine u/s 421 of the Code of Criminal Procedure, 1973.
23. On reading of the Sec.143-A of NI Act it is crystal clear that in case the drawer of the cheque fails to pay the interim compensation, the recourse available to the complainant is mentioned in Sub- Sec.5 of Sec.143-A of NI Act. In the event of failure to comply the direction of the Court, interim compensation payable under this section may be recovered as if it were fine u/s 421 of the Code of Criminal Procedure. Sec.421 of the Code of Criminal Procedure deals with the manner in which the fine amount should be recovered. In case, the drawer of the cheque fails to pay the interim compensation, in that case, the Court has power to issue FLW and sale 14 Crl.Apl.No.94/2022 of property of the drawer of the cheque or Court can issue warrant to the Collector of the District authorizing him to realize the amount. It is evident from Sec.143-A of NI Act, that recovery of interim compensation is independent process and in the event of non-compliance, the course available for the aggrieved party is to move against the accused u/s 421 of Cr.PC. and not by denying the opportunity to contest the case. The Courts are not empowered to deny the opportunity of cross-examination to the accused/drawer of the cheque for non-depositing the 20% of the cheque amount.
24. In the instant case the procedure adopted by the Trial Court is contrary to the object and scope of Sec.143-A of NI Act. Nowhere in the said provision Court is empowered to refuse to give opportunity to the accused for non-depositing 20% of the interim compensation amount ordered as per the provisions of Sec.143-A of the NI Act. The order passed by the Trial Court is not only against the provisions of law, but it is also against the principles of natural justice. The Trial Court fails to understand the scope of Sec.143-A of NI Act. The Trial Court has interpreted the said provision as per its whims and fancies and 15 Crl.Apl.No.94/2022 refused to give an opportunity to the accused to cross-examine PW1 and the same is liable to set aside. Therefore, in the considered opinion of this Court, the order passed by the Trial Court and taking the cross-examination of PW1 as nil without giving opportunity to the accused for non-depositing the 20% of the cheque amount is illegal and is not sustainable under law.
25. It is also important to note that the Trial Court has not recorded the statement u/s 313 of Cr.PC. As per the Code of Criminal Procedure, the incriminating evidence is to be read-over to the accused and record the explanation given by the accused. In this case, the Trial Court has dispensed with the recording of 313 statement. The procedure followed is unknown to law and thereby even the Trial Court has not followed the procedure prescribed under the Code of Criminal Procedure. As per the Criminal Procedure Code the incriminating evidence found in the examination-in-chief is to be asked to the accused. The object of the said provision is to give him an opportunity of explaining the circumstances that appear against him in the evidence. The recording of 313 statement could be dispensed with 16 Crl.Apl.No.94/2022 only as per the proviso to Sec.313 Cr.PC. It says, in case the presence of accused is dispensed with, at that time, the recording of 313 statement can be dispensed with. In the instant case, the reason assigned by the Trial Court for non-recording of 313 statement is not found place in the provisions of Code of Criminal Procedure. In this regard it is useful to refer a judgment rendered by Hon'ble High Court Karnataka reported in 2022(3) KCCR 2584 (Mr.G H Abdul Khadri Vs. Mr. Mohammed Iqbal)
26. Trial Court without giving opportunity to the accused to participate in the Trial convicted him. The Trial Court while passing the conviction order ignored the procedure and not provided opportunity to the accused to participate in the proceedings. Trial Court cannot deny opportunity to the accused to cross examine the PW1 on account of non- payment of 20% of the interim compensation amount. For the reasons discussed above in the considered opinion of this Court Trial Court has committed serious error in convicting the accused without giving opportunity to participate in the trial for non-payment of 20% amount as ordered by it. Accordingly, I answer point No.1 in the affirmative.
17 Crl.Apl.No.94/202227. Point No.2:- In view of my findings on point No.1, in the considered opinion of this Court, it is fit case to interfere with the finding recorded by the Trial Court. Therefore, without considering any other aspects on merits it is just and proper to remand the matter to the Trial Court to commence the case from the stage of cross-examination of PW1.
28. It is made clear that nothing prevents the Trial Court from invoking the provisions u/s143-A(5) of NI Act for recovery of 20% of the interim compensation amount ordered as per the provisions of Sec.143-A of the NI Act. For the said reasons is necessary to interfere with the findings of the Trial Court. Hence, I answer point No.2 in the affirmative.
29. Point No.3:- In view of my finding on point No.1 and 2 the appeal filed by the appellant is liable to be allowed. Accordingly, I proceed to pass the following:-
ORDER Appeal filed by the accused/appellant u/ s 374(3) is hereby allowed.
The Judgment of conviction passed in CC No.5924/2019 dated 20.12.2021 by learned XII ASCJ and ACMM, Bengaluru, is hereby set 18 Crl.Apl.No.94/2022 aside.
The matter is remanded back to Trial Court with a direction to re-admit the CC No.5924/2019 in the Register of Criminal cases and to commence the case from the stage of further evidence of PW1 in accordance with law, record the statement of accused u/s 313 of Cr.P.C and permit the accused to adduce the oral evidence if he desires.
The Trial Court has to independently appreciate the material placed before it and give finding without influencing the observation made in this appeal.
Further, the parties to the case are directed to co-operate with the Trial Court for expeditious disposal of the case within the time fixed by the Trial Court.
Complainant and accused are directed to appear before the Trial Court on 16.03.2023 without expecting the notice/summons from the Trial Court.
The accused/appellant is entitled for 19 Crl.Apl.No.94/2022 refund of amount of fine deposited before the Trial Court if any.
Office to send back the Trial Court records along with copy of this judgment.
(Dictated to Judgment Writer, transcribed by her, taken print out corrected by me and then pronounced in the Open-Court on the 20th day of February 2023) (A.V.PATIL) LXIII Addl. City Civil and Sessions Judge (CCH-64), Benglauru City.