Remanded

Sri Raju Tandel v. Sri Krishna Puthran

Karnataka HC7 Nov 2023CRL.RP/711/2020

Case brief

AI extract

What is this about?

In a criminal revision, the High Court set aside ex-parte judgments convicting an accused for cheque dishonour where the trial court failed to secure his presence despite issuing warrants. The court held the procedure violated the right to a fair trial and remand the matter.

What did the court decide?

The impugned judgments and orders were set aside and the matter remanded to the trial court for fresh disposal after securing the accused's presence.

Sri Raju Tandel Vs Sri Krishna Puthran — Cheque Dishonour | Karnataka HC (2023)

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CRL.RP No. 711 of 2020 NC: 2023:KHC:39655

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MS JUSTICE J.M.KHAZI CRIMINAL REVISION PETITION NO.711 OF 2020

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BETWEEN:

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SRI RAJU TANDEL S/O NARAYANA TANDEL 34 YEARS, RESIDING AT NADUMASKERI POST GANGAVALI KUMTA TALUK UTTARAKANNADA DISTRICT

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…PETITIONER

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(BY SMT. HEGDE SUMANA MAHADEV, ADVOCATE)

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AND:

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Digitally signed by MADHURI S Location: High Court of Karnataka

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SRI KRISHNA PUTHRAN S/O SOMAPPA PUTHRAN AGED ABOUT 39 YEARS, R/O GURU ANUGRAHA KOLA, MALPA, UDAPI TALUK, DISRICT UDUPI

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(RESPONDENT - SERVED)

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…RESPONDENT

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THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF CR.PC PRAYING THAT THE JUDGMENT DATED 03.10.2018 IN CRIMINAL CASE NO.2381/2012 PASSED BY THE COURT OF III ADDITIONAL CIVIL JUDGE & JMFC, UDUPI AND WHICH IS CONFIRMED IN CRIMINAL APPEAL NO.101/2018 ON 11.05.2020 BY THE COURT OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, UDUPI DISTRICT, UDUPI OPINED ON MERITS, BE SET ASIDE BY ALLOWING THIS CRIMINAL PETITION, WITH COST THROUGHOUT IN THE INTEREST OF JUSTICE AND EQUITY.

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CRL.RP No. 711 of 2020 NC: 2023:KHC:39655

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THIS PETITION, COMING ON FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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In this petition filed under Section 397 r/w Section 401 Cr.P.C, petitioner who is accused before the trial Court has challenged the impugned judgment and order of the trial Court, convincing and sentencing him for the offence punishable under Section 138 of N.I. Act, which came to be confirmed by the Sessions Court in Criminal Appeal filed by the petitioner/accused.

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For the sake of convenience, the parties are referred to by their rank before the trial Court.

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Before the trial Court, the complainant filed a complaint under Section 200 Cr.P.C alleging that he stood

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as guarantor to the accused for the purchase of fish from different boats on different occasion for total worth of Rs.1,08,614/-. When accused failed to pay the amount due to the owners of boats, on their insistence complainant paid the sum due from the accused and in

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3 - CRL.RP No. 711 of 2020 NC: 2023:KHC:39655

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this regard accused issued a cheque dated 14.10.2012 for

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a sum of Rs.1,08,614/-. When it was presented for encashment, it came to be dishonored for want of "sufficient funds". Despite service of legal notice, accused did not bother to pay the amount due and therefore complaint is filed.

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Though the accused appeared before the trial Court and pleaded not guilty subsequently he remained absent. Observing that accused has intentionally remained absent, the trial Court proceeded to pass ex-parte order, convicted and sentenced the accused to pay a fine of Rs.2,22,228/- with the default sentence.

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The appeal filed by the accused before Sessions Court came to be dismissed, holding that the matter was pending before the trial Court for more than one and half years, but accused has not utilised the opportunities provided to him in a proper way. Aggrieved by the same, the accused is before this Court, contending that the impugned judgments and orders are contrary to law, facts

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and probabilities of the case. Since the accused was not in a position to engage services of counsel, he approached the legal services authority and contested the matter through the counsel provided to him by the legal services authority. After securing bail for him, there was no communication by his counsel and thereafter he came to know about the orders passed by the trial Court.

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Hence, he filed an appeal before the Sessions

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Court. However without appreciating the grounds urged by him, the Sessions Court also dismissed the appeal and confirmed the impugned judgment of the trial Court. After accused failed to appear before the trial Court, instead of securing his presence and providing him an opportunity, the trial Court proceeded to pass ex-parte order and convicted him. The procedure adopted is contrary to the principles of criminal trial and prays to allow the criminal revision petition, set aside the impugned judgments and orders and remand the matter for fresh trial in accordance with law.

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CRL.RP No. 711 of 2020 NC: 2023:KHC:39655

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In this case though duly served with notice respondent/complainant has remained absent.

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Heard arguments of learned counsel for

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petitioner and perused the record.

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It is pertinent to note that after the service of summons, when accused remained absent, the trial Court has issued a bailable warrant against him. However, the accused got the matter advanced and appeared before the trial Court. He was granted bail. In fact on the same day, his plea was recorded, wherein he has pleaded not guilty and claimed trial. However, later on he remained absent. Therefore, the trial Court has issued Non-bailable warrant on 03.09.2018. After observing that the accused has intentionally remained absent, the trial Court has taken the cross-examination of PW-1 as –Nil-, dispensed with recording a statement under Section 313 Cr.P.C and pronounced the judgment convicting the accused and sentenced him.

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CRL.RP No. 711 of 2020 NC: 2023:KHC:39655

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In this regard, learned counsel for accused has relied upon the decision of the Division Bench of this Court in the matter of Mac Charles (I), Ltd Vs Chandrashekar and another ( Mac Charles )¹ , wherein it was held that as per Section 273 Cr.P.C, the evidence is required to be recorded in the presence of accused or his counsel when his presence is exempted. The accused shall be provided an opportunity to cross-examine the prosecution witnesses. Section 313 Cr.P.C mandates that the accused shall be questioned generally on the evidence led by the prosecution putting the incriminating evidence and record his answers which would give him an opportunity to explain the circumstances leading to the commission of the offence. After the closure of evidence of the complainant/prosecution side, the accused should be provided an opportunity to lead defence evidence if he so desire. Only after this stage, after hearing arguments of both sides, if any, the trial Court may proceed to pass the

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1 ILR 2005 KAR 3648

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judgment. However, the trial Court has given a go by to all these mandatory requirements of providing reasonable opportunity to the accused. If the accused has remained absent intentionally, then he loses his right to remain on bail and the trial Court is at liberty to take coercive measures and secure the presence of accused and proceed with the matter. If the trial Court is of the opinion that intentionally the accused is protracting the proceedings, then it may cancel the bail granted to the accused and take him to custody and proceed with the matter.

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In the present case, the trial Court has given a go by to all this mandatory requirements. By making an observation that intentionally the accused has remained absent and has failed to appear before the Court, despite issue of NBW, proceeded to decide the matter ex-parte. The procedure adopted by the trial Court is erroneous. The right of the accused for fair trial is denied to him. The Sessions Court also without examining these aspects has simply proceeded to dismiss the appeal by observing that

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accused has failed to utilise several opportunities available to him. In the result the impugned judgment and orders of

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the trial Court as well as the Sessions Court are liable to be set aside. The matter requires remand to the trial Court for fresh disposal in accordance with law after providing reasonable opportunity to the accused and accordingly the following:

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ORDER

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(i) Criminal Revision Petition is allowed.

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(ii) The impugned judgments and orders dated 03.10.2018 in C.C.No.2381/2012 on the file of III Addl. Civil Judge & JMFC, Udupi and dated 11.05.2020 in Crl.A.No.101/2018 on the file of Prl.District and Sessions Judge, Udupi are set aside.

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(iii) The matter is remanded back to the trial Court with a direction to secure the presence of complainant and proceed with the matter.

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(iv) Petitioner/accused is directed to appear before the trial Court on 04.12.2023 without awaiting for any notice.

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CRL.RP No. 711 of 2020 NC: 2023:KHC:39655

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(v) The Registry is directed to send back the trial Court record along with copy of this order forthwith.

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Sd/JUDGE

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RR/MDS List No.: 1 Sl No.: 46

Sri Raju Tandel v. Sri Krishna Puthran

Case brief

What is this about?

What did the court decide?

Sri Raju Tandel v. Sri Krishna Puthran

Case brief

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What did the court decide?

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