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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.1367/2023physical 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.1367/2023CC.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.
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