Bangalore District Court
Mr. Hariprasad vs M/S. Shankara Building Products Ltd on 18 January, 2021
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Crl.A No. 2049/2019
IN THE COURT OF THE LXXV ADDITIONAL CITY CIVIL AND
SESSION JUDGE AT BENGALURU CITY (CCH76)
: Present:
Sri. N. Sunil Kumar Singh, B.com., LL.B.,
LXXV Addl.City Civil & Session Judge,
Bengaluru
Dated on this the 18th day of January 2021
Crl. Appeal No.2049/2019
APPELLANT Mr. Hariprasad
S/o Obayya Poojary
Aged about 40 years
R/at Jyothi nagar, Moodabidri
D.K. District - 574227.
Aslo at:
No.11206, Devi Prasad Nilaya,
Near Janatha Colony,
Pranthya Village, D.K
Moodabidri - 574227.
[By Sri. D.K Advocate]
/V e r s u s/
RESPONDENT M/s. Shankara Building Products Ltd,
Having Regd. Office at No.G2,
Farah 'Winsford'
No.133, Infantry Road,
Bengaluru560001.
Rep. by its Manager Accounts
& PA Holder
Mr. Srinivasa Murthy
S/o A.R Narayana
Aged about 43 years.
[By Sri. B.K.M Advocate]
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Crl.A No. 2049/2019
:JUDGMENT:
This is an appeal under Section 374 (3) of Cr.P.C filed by the appellant (accused before trial court) against the Judgment in C.C No. 5710/2018 on the file of XXIV Addl. Small Causes Judge and XXII ACMM (SCCH26), Bengaluru dated: 01.07.2019.
2. The parties shall be addressed as per the rankings given before the trial court for the sake of convenience.
3. The facts in brief of the complainant's case before the trial court is that, complainant is Limited Company registered under the Companies Act and complainant is leading and largest distributor for wide range of pipes and tubes and other allied products. The accused was the regular customer of the complainant has purchased materials as per requirements worth of Rs.2,35,425/ and in order to pay the said amount accused has issued cheque No.700639 dated: 24.08.2018 for a sum of Rs.2,35,425/ drawn on Syndicate Bank, Main Road, Moodabidri, Manglore District in the name of complainant agreeing to honor 3 Crl.A No. 2049/2019 the same whenever presented for encashment. Later the said cheque was presented by complainant for encashment through his banker Kotak Mahindra Bank, Vishveshpuram Branch, Bengaluru which was dishonored stating that "Exceeds arrangements" and issued memo dated: 09.10.2018. Later the complainant had issued statutory notice to the accused as contemplated under law on 20.10.2018 calling up the accused to pay cheque amount. But the said notice sent by RPAD was returned unserved. Hence, without any alternative the complainant had invoked Sec.200 of Cr.P.C and filed complaint against the accused on the file of XXIV Addl. Small Causes Judge and XXII ACMM (SCCH26), Bengaluru for the offence punishable under Section 138 of N.I Act.
4. After contesting the matter, the respondent herein who was the complainant before trail court got examined himself as P.W.1 and got marked documents at Ex.P.1 to 8. The appellant herein who was the accused before trial court not adduced any evidence before trial court and he was absent before the trial 4 Crl.A No. 2049/2019 court. Hence, the trial court dispensed recording of statement U/S 313 of Cr.P.C and passed judgment on 01.07.2019 convicting the appellant herein and sentenced to pay fine of Rs.2,95,000/ and in default to under go simple imprisonment for a period of 6 months. Aggrieved by the said judgment of the trial court the appellant herein has preferred present appeal.
5. In the ground of appeal it is contended by appellant that, the judgment passed by the trial court is erroneous and oppose to the facts and circumstances of the case and liable to be set aside. It is also contended that the trial court has committed serious error by allowing the complaint without giving sufficient opportunities to the accused to put forth his defence. It is also contended that without recording the statement of accused U/S 313 of Cr.P.C the judgment was passed which is oppose to law which is prevailing in dispensation of justice. Even though, there is no legally enforceable debt, the accused was convicted by the trial court which cannot be justified and same has been set aside. Even though, the complainant has not produced any such bills for 5 Crl.A No. 2049/2019 having supplied materials to the accused only on the basis of cheque the conviction order is passed which is not sustainable. The relevant documents which are produced by the respondent herein do not attract the offence U/S 138 of N.I Act but conviction order is passed which is erroneous and liable to be set aside. Hence, the impugned judgment passed by trail court is liable to be set aside and prayed to allow the appeal.
6. Heard arguments on both the sides and perused the LCR .
7. The following points arises for my consideration;
1. Whether the appellant made out sufficient grounds to set aside the judgment passed by trial court in CC.No.5710/2018 since, statement U/S 313 of Cr.P.C was not recorded ?
2. Whether the trial court has rightly convicted the accused for the offence punishable U/S 138 of N.I Act in CC.No.5710/2018 ?
3. Whether the judgment passed by trial court in CC.No. 5710/2018 is to be interfered by this court ?
4. What order?
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Crl.A No. 2049/2019
8. My answer to the above points are as follows:
POINT No.1 & 3 In the Affirmative
POINT No.2 In the Negative
POINT No.4 As per final order for the following:
REASONS
9. POINT No.1 to 3 : Since, these three points are
interconnected to each other, they have been taken together for discussion in order to avoid repetition of the facts and findings to be given there under.
10. The case of the complainant before the trial court is that, complainant is Limited Company registered under the Companies Act and complainant is leading and largest distributor for wide range of pipes and tubes and other allied products. The accused was the regular customer of the complainant has purchased materials as per requirements worth of Rs.2,35,425/ and in order to pay the said amount accused has issued cheque No.700639 dated: 24.08.2018 for a sum of Rs.2,35,000/ drawn on Syndicate Bank, Main Road, 7 Crl.A No. 2049/2019 Moodabidri, Manglor District in the name of complainant agreeing to honor the same whenever presented for encashment. Later the said cheque was presented by complainant for encashment through his banker Kotak Mahindra Bank, Vishveshpuram Branch, Bengaluru which was dishonored stating that "Exceeds arrangements" and issued memo dated:
09.10.2018. Later the complainant had issued statutory notice to the accused as contemplated under law on 20.10.2018 calling up the accused to pay cheque amount. But the said notice sent by RPAD was returned unserved. Hence, without any alternative the complainant had invoked Sec.200 of Cr.P.C and filed complaint against the accused on the file of XXIV Addl. Small Causes Judge and XXII ACMM (SCCH26), Bengaluru for the offence punishable under Section 138 of N.I Act.
11. After contesting the matter, the respondent herein who was the complainant before trail court got examined himself as P.W.1 and got marked documents at Ex.P.1 to 8. The appellant herein who was the accused before trial court not 8 Crl.A No. 2049/2019 adduced any evidence before trial court and he was absent before trial court. Hence, the trial court dispensed recording of statement U/S 313 of Cr.P.C and passed judgment on 01.07.2019 convicting the appellant herein and sentenced to pay fine of Rs.2,95,000/ and in default to under go simple imprisonment for a period of 6 months.
12. It is argued by learned counsel for appellant herein that, the trial court has not provided sufficient opportunity to the accused to put forth his defence and to rebut the presumption available U/S 139 of Negotiable Instrument Act. It is also argued by learned counsel for appellant that, there is procedural lapses on the part of trial court in passing judgment since, statement U/S 313 of Cr.P.C was not recorded and even thought, there is no such provision to dispense recording of statement U/S 313 of Cr.P.C. The trial court has abruptly proceeded to dispense recording of statement U/S 313 of Cr.P.C and in the absence of accused the trial court has passed judgment which is not provided under the law. It is also argued by learned counsel for 9 Crl.A No. 2049/2019 appellant that even though there is no legally enforceable debt, the conviction order is passed which has to be set aside.
13. On perusal of trial court records it is pertinent to note that, after recording of evidence of complainant as PW.1 and marking of documents as per Ex.P.1 to 8 there is no such opportunity was provided to the accused to put forth his defence and in the absence of accused recording of statement U/S 313 of Cr.P.C was dispensed and in the absence of accused the trial court has proceeded to pass judgment which is not provided under law. The proviso of Section 313 of Cr.P.C says that, (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;
(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:
Providing that in summonscase, where the court has dispensed with the personal attendance of the accused, it may also dispense 10 Crl.A No. 2049/2019 with his examination under clause (b).
(2) No oath shall be administered to the accused when he is examined under subsection (1).
(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.
(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he ha committed.
After recording of evidence of complainant the trial court ought to have recorded the statement of accused U/S 313 of Cr.P.C before passing judgment and there is no such provision under law to dispense recording of statement U/S 313 of Cr.P.C after recording the evidence of complainant in criminal case trial. But the trial court erred in not recording such statement of accused before passing the judgment as provided U/S 313 of Cr.P.C and further proceeded to pass judgment in the absence of accused which is not sustainable.
14. The trial court ought to have secured the accused by 11 Crl.A No. 2049/2019 taking coursive steps as provided under law and after recording of statement U/S 313 of Cr.P.C in the presence of the accused the trial court would have passed the judgment. Hence, judgment passed by the trial court is perverse and erroneous and further without following the procedure prescribed under Cr.P.C. Hence, without going into merits of the case and without disclosing the merits of the case the matter has to be remanded to the trial court to consider the procedural lapses on the part of the trial court in not recording the statement of accused as provided U/S 313 of Cr.P.C and after providing reasonable opportunity to the accused to put forth his defence, the trial court has to pass judgment in the presence of the accused as contemplated under law. On going through the LCR it is pertinent to note that, since accused has absconding the procedural lapses have happened while disposing of case on merits by the trial court. Hence, for causing inconvenience to the court proceeding and also to the complainant suitable cost may be imposed on the accused with a direction to appeared before the trial court and cooperate in disposal of the case on merits. Thus, there is no impediment to 12 Crl.A No. 2049/2019 remand the case for fresh trial by recording the statement of accused U/S 313 of Cr.P.C and after providing reasonable opportunity to the accused to lead his evidence. The trial court shall dispose of the case on merits expeditiously within the time fixed by this court and to dispose of the same on merits inaccordance with law. Accordingly, I hold Point No.1 & 3 as Affirmative and Point No.2 as Negative.
15. POINT NO. 3: In view of my findings in point No. 1 to 3 above, I proceed to pass the following:
ORDER The appeal preferred by the appellant under Section 374 (3) of Cr.P.C is hereby allowed on cost of Rs.5,000/ payable by the accused to the complainant.
The judgment and order dated: 01.07.2019 passed by XIII ACMM, Bengaluru XXIV Addl. Small Causes Judge and XXII ACMM (SCCH26), Bengaluru in CC.No. 5710/2018 is hereby set aside.
Consequently, sentence awarded by the trial court while passing judgment is set aside.13
Crl.A No. 2049/2019 The trial court is hereby directed to dispose of the matter within 6 months from the date of this order after providing reasonable opportunity to the accused to put forth his evidence and by recording statement of accused as provided U/S 313 of Cr.P.C.
The appellant is hereby directed to appear before the trial court on 30.01.2021 without awaiting notice of the trial court and shall cooperate with the complainant in disposal of the case on merits within the time stipulated.
Send back LCR along with copy of this judgment to the trial court fourth with.
[Dictated to the Stenographer, transcript thereof corrected, signed and then pronounced by me, in the Open Court on this the 18th day of January 2021] [N.Sunil Kumar Singh] LXXV Additional City Civl and Session Judge Bengaluru