Bangalore District Court
Smt.N.Vijayalakshmi vs Sri.Joseph Raj on 2 March, 2020
IN THE COURT OF THE LVIII ADDL.CITY CIVIL AND SESSIONS
JUDGE (CCH-59), BENGALURU CITY.
Dated this the 2nd day of March, 2020
PRESENT:
Sri.Venkatesh.R.Hulgi, B.Com. LL.B (Spl.),
LI Addl. City Civil & Sessions Judge (CCH-52) &
C/c of LVIII Addl. City Civil & Sessions Judge (CCH-59),
Bengaluru City.
: CRIMINAL APPEAL NO.310/2017:
APPELLANT : Smt.N.Vijayalakshmi,
W/o.M.B.Ramesh,
Aged about 48 years,
Channakeshava Nilaya,
Residing at No.6, 6th Cross,
2nd Stage, B.C.C.Layout,
Chandra Layout,
Bangalore -560 040.
(By N.Rajanna, Advocate)
-V/S-
RESPONDENT : Sri.Joseph Raj,
S/o.Late Shanthappa,
Aged about 61 years,
R/ at No.60, 2nd Floor,
Poonam Apartment, 17th "C"
Cross,4th Block, 4th Stage,
Agraharadasarahalli,
Basaveshwaranagara,
Bangalore - 560 079.
(By V.M, Advocate)
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: JUDGMENT :
The appellant has filed this appeal under section 374(3) of Cr.P.C., praying for setting aside the judgment of conviction and order of sentence passed in C.C.No.17125/2016 dated 19.01.2017 on the file of learned XXII Additional Chief Metropolitan Magistrate, Bangalore by allowing the appeal and to acquit the appellant.
2. The parties to the appeal hereinafter would be referred to as per their ranks assigned in the trial Court for the sake of convenience.
3. The facts of the case sufficient for disposal of the present case, if briefly stated are as under:-
The complainant and accused are known to each other since many years. In this background, the accused had approached complainant in the first week of November 2015 for financial assistance of Rs.5,00,000/- for her legal necessities. Consequently, on 25.11.2015, the complainant has advanced hand loan of Rs.5,00,000/- to the accused. She had agreed to return the loan 3 Crl.Apl.310/2017 after sometime. That on the same day, the accused had issued Ex.P1 a post dated cheque by putting date on 15.4.2016 in discharge of legal debt. She had assured that the cheque will be honoured when it was presented to the bank. Thus, believing the words of the accused, the complainant had presented Ex.P1 cheque to the drawee bank for encashment. Unfortunately, it was dishonoured for want of sufficient funds in the account of the accused. In this behalf, the drawee bank has issued an endorsement as per Ex.P2. After sometime, once again accused requested the complainant to represent the cheque at Ex.P1.
Accordingly, on 22.4.2016, accused has represented the cheque, at that time also it was returned for want of sufficient funds. Consequently, the complainant has issued a legal notice to the accused at Ex.P3 calling upon her to repay the cheque amount. The said legal notice returned with endorsement "Absent intimation delivered". Thus having no other way, the complainant has filed a complaint in the trial court alleging the commission of offence punishable under section under section 138 of N.I.Act of N.I.Act.
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4. It appears from the trial court records that, initially in response to summons, accused has appeared through advocate before the trial Court who filed application u/S 205 of Cr.P.C seeking exemption of the accused. Thereafter, the accused has never appeared before the trial court.
5. Thereafter, the accused remained absent before the trial court. The trial court has issued NBW against the accused to secure her presence, but the presence of the accused could not be secured. Hence, the trial court has recorded the evidence of the complainant, who got examined himself as PW1 and produced documents at Ex.P1 to P7.
6. After the evidence of the complainant, the trial court has dispensed with statement of accused under section 313 of Cr.P.C and heard the arguments. The trial court passed the impugned Judgment on the above date convicting the appellant for the offence punishable under section under section 138 of N.I.Act of N.I.A and sentenced her to pay Rs.5,05,000/- as the 5 Crl.Apl.310/2017 fine amount. Thus being aggrieved by the impugned Judgment of the trial court, the appellant has filed the present appeal on the following among other grounds:
GROUNDS
1) The Judgment and order of conviction passed by the trial court, which is impugned a present appeal is illegal and against the law. Hence, same is not sustainable.
2) The learned trial court Judge has committed error of law in convicting the accused in her absence, even though she was represented by an Advocate. The trial court has not assigned sufficient reasons to pronounce the impugned Judgment in the absence of the accused.
3) The trial court has not given proper opportunity to the accused to put forth her case with evidence.
Thus, the trial court has committed an error in law in passing the impugned Judgment, which is one sided. Therefore, the same is liable to be set aside by allowing the appeal.
On these grounds, the appellant prayed to set aside the impugned order by allowing this appeal.
7. In response to the notice, the respondent has appeared. The trial court records are summoned.
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8. Heard the arguments of both the sides and perused the materials placed on record.
9. The following points that arise for my consideration are:-
1. Whether the trial Court has committed error in convicting the accused for the offence punishable under Section 138 of Negotiable Instruments Act.
2. Whether interference by this Court is necessary?
3. What order?
10. My findings on the above points are as follows:-
POINT NO.1 - Affirmative;
POINT NO.2 - Affirmative;
POINT NO.3 - As per final order, for the following:-
: REASONS :
11. POINT NOS.1 AND 2: Since these points are inter connected to each other, hence, to avoid repetition of facts and 7 Crl.Apl.310/2017 evidence, these points are taken up together for common discussion.
12. During the course of arguments, the counsel for accused would submit that the trial court has not made any efforts to secure the presence of the accused as could be seen from the order sheet of the trial court. The trial court has not given sufficient opportunity to the accused to put forth her defence and has passed the impugned Judgment in her absence. There is no law where the trial court can dispense with the statement of the accused under section 313 of Cr.P.C. Thus, the impugned Judgment, which is rendered without the statement of the accused is bad in law. The trial court has not given sufficient opportunity to the accused to represent her case. Hence, it is prayed to allow the appeal by setting aside the Judgment of the trial court and to remand the case for fresh trial.
13. Per contra, the counsel for the respondent has justified the Judgment of the trial court impugned in the present appeal. According to the counsel by looking to the fact that accused has intentionally avoided the trial, the trial court has conducted the trial 8 Crl.Apl.310/2017 and by dispensing the 313 of Cr.P.C statement has convicted the accused. Hence, the impugned Judgment does not call for interference at the hands of this court. Therefore, it is prayed to dismiss the appeal.
14. After having heard the arguments of both the sides, I have gone through the trial court records. The order sheet of the trial court would indicate that in response to the summons the counsel for accused has appeared on 29.8.2016 and filed an application under section 205 of Cr.P.C seeking personal exemption of the accused. However, on 6.9.2016 the accused failed to appear before the court. Therefore, the trial court has issued NBW on one or two occasions. Even the trial court has not recorded the plea of the accused and proceeded to record the evidence of complainant. As mentioned above, the trial court has even dispensed with 313 Statement of the accused and rendered the impugned Judgment.
15. A perusal of the provisions of Cr.P.C would indicate that if the accused does not turn up in response to the summons, the trial court has to issue NBW and even after NBW, the presence of the 9 Crl.Apl.310/2017 accused could not be secured, the trial court can proceed under section 82 and 83 of Cr.P.C. Further, if the presence of the accused could not be secured, within a reasonable time, the trial court would dispose of the matter as required under section 258 of Cr.P.C. But, in the instant case, the trial court has not followed any of the aforesaid provisions of Cr.P.C. This is the glaring mistake committed by the trial court.
16. Despite securing the presence of accused, the trial court has recorded the evidence of the complainant and by dispensing 313 Statement of the accused has rendered the impugned Judgment. This is totally unknown to the procedural law governing the criminal cases.
17. The Hon'ble Apex Court in the case of Basavaraj R Patil Vs. State of Karnataka (2000 Crl.L.J 4604) held as follows:
"Section 313 of Cr.P.C is mainly intended to benefit the accused and the court in reaching the final conclusion. It is based on the principles of natural justice as the accused must be examined by the Court after the witnesses of the prosecution have been examined and before he is called upon to enter upon his defence and the accused is obliged 10 Crl.Apl.310/2017 to explain each and every circumstances appearing in the evidence against him".
18. But, in the instant case, by ignoring the aforesaid solmen object of 313 Statement, the trial court has dispensed with the statement of the accused and delivered the impugned Judgment. Thus, looked from any angle, the Judgment and order of conviction of the trial court impugned in the present appeal appears to be illegal and against the principles of natural justice. Hence, not sustainable in law.
19. The trial court should have given sufficient opportunity to the accused to explain the reason why the cheque could not be honoured and she should have been given sufficient opportunity to lead evidence in rebuttal, if she desire. Therefore, to this extent, the matter is to be remanded back to the trial court to conduct a fresh trial from the stage of recording of the plea of the accused, recording of evidence of both the sides and to proceed further as per the law. To this extent, the Judgment of the Trial court require interference of this court. Hence, I answer point Nos.1 and 2 in the "Affirmative".
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20. POINT No.3: In view of my finding on point Nos.1 and 2, in the result, I proceed to pass the following:
: ORDER :
The appeal filed by the appellant under section 374(3) of Cr.P.C., is hereby allowed.
The judgment and order of conviction passed by the learned XXII Additional Chief Metropolitan Magistrate, Bangalore, in C.C.No.17125/2016 dated 19.1.2017 is hereby set aside.
The matter is remanded back to the trial court to hold fresh trial from the stage of recording of plea of the accused. The trial court shall give sufficient opportunity to both the sides to lead evidence and to dispose the matter a fresh.
Both parties shall appear before the trial court without fail on or before 27.4.2020 and cooperate with the trial court for early disposal of the matter.
12 Crl.Apl.310/2017 Send copy of this judgment along with LCR to the trial court forthwith.
(Dictated to the Stenographer, transcribed by him, then corrected and pronounced by me in the open court on this the 2nd day of March 2020) (VENKATESH.R.HULGI) C/C of LVIII ADDL.CITY CIVIL AND SESSIONS JUDGE (CCH-59) BENGALURU CITY.
13 Crl.Apl.310/2017 14 Crl.Apl.310/2017 15 Crl.Apl.310/2017 Judgment pronounced in the open Court ( vide separate order) ORDER The appeal filed by the appellant under section 374(3) of Cr.P.C., is hereby allowed.
The judgment and order of conviction passed by the learned XXII Additional Chief Metropolitan Magistrate, Bangalore, in C.C.No.17125/2016 dated 19.1.2017 is hereby set aside.
The matter is remanded back to the trial court to hold fresh trial from the stage of recording of plea of the accused. The trial court shall give sufficient opportunity to both the sides to lead evidence and to dispose the matter a fresh.
16 Crl.Apl.310/2017 The accused shall appear before the trial court without fail on or before 27.4.2020 and cooperate with the trial court for early disposal of the matter.
Send copy of this judgment along with LCR to the trial court forthwith.
(VENKATESH.R.HULGI) C/C of LVIII ADDL.CITY CIVIL AND SESSIONS JUDGE (CCH-59) BENGALURU CITY.
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