Karnataka High Court

Mr. G. H. Abdul Kadri vs Mr. Mohammed Iqbal on 24 May, 2022

Bench: Sreenivas Harish Kumar

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 24 T H DAY OF MAY, 2022           R
                       BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

  CRIMINAL REVISION PETITION NO.1323/2019
     c/w Crl.RP.Nos.1338/2019, 1342/2019,
      1403/2019, 1405/2019 & 1352/2019

In Crl.RP.No.1323/2019:

BETWEEN:

Mr. G.H.Abdul Kadri,
Aged 42 years,
s/o late Hassan Beary,
R/at Guddekeri,
Agumbe, Thirthahalli Taluk,
Shimoga District - 577432
                                          ...Petitioner
(By Sri. P.P.Hegde, Sr.Counsel
for Smt. H.Pavithra, Advocate)

AND:

Mr. Mohammed Iqbal,
Aged 45 years,
s/o Late Sayyad Abubakkar,
R/at No.6/253/1, S.A.Manzil,
Jyothi Nag ar, 9 t h Cross,
Kelarkalab ettu, Udupi Taluk,
Udupi District - 576105
                                         ...Respondent
(By Sri. Shobhith N.Shetty, Ad vocate)

     This Criminal Revision Petition is filed under
Section 397 of r/w 401 Cr.P.C., praying to set aside
the judgment of conviction and the order of sentence
dated 04.12.2018 passed by the III Addl. Civil Judge
                         :: 2 ::


and J.M.F.C., Ud upi in C.C.No.2013/2018 and also    to
set asid e the judgment dated 31.08.2019 p assed     by
the Prl. District and Sessions Judge, Ud upi         in
Crl.A.No.08/2019, dismissing the appeal p referred   by
the petitioner herein and acquit the p etitioner.

In Crl.RP.No.1338/2019:

BETWEEN:

Mr. G.H.Abdul Kadri,
Aged 42 years,
s/o late Hassan Beary,
R/at Guddekeri,
Agumbe, Thirthahalli Taluk,
Shimoga District - 577432
                                          ...Petitioner
(By Sri. P.P.Hegde, Sr.Counsel
for Smt. H.Pavithra, Advocate)

AND:

Mr. Mohammed Iqbal,
Aged 45 years,
s/o Late Sayyad Abubakkar,
R/at No.6/253/1, S.A.Manzil,
Jyothi Nag ar, 9 t h Cross,
Kelarkalab ettu, Udupi Taluk,
Udupi District - 576105
                                         ...Respondent
(By Sri. Shobhith N.Shetty, Ad vocate)

     This Criminal Revision Petition is filed under
Section 397 of r/w 401 Cr.P.C., praying to set aside
the judgment of conviction and the order of sentence
dated 04.12.2018 passed by the III Addl. Civil Judge
and J.M.F.C., Ud upi in C.C.No.2016/2018 and also to
set asid e the judgment dated 31.08.2019 p assed by
the Prl. District and Sessions Judge, Ud upi in
Crl.A.No.07/2019, dismissing the appeal p referred by
the petitioner herein and acquit the p etitioner.
                         :: 3 ::


In Crl.RP.No.1342/2019:

BETWEEN:

Mr. G.H.Abdul Kadri,
Aged 42 years,
s/o late Hassan Beary,
R/at Guddekeri,
Agumbe, Thirthahalli Taluk,
Shimoga District - 577432
                                          ...Petitioner
(By Sri. P.P.Hegde, Sr.Counsel
for Smt. H.Pavithra, Advocate)

AND:

Mr. Mohammed Iqbal,
Aged 45 years,
s/o Late Sayyad Abubakkar,
R/at No.6/253/1, S.A.Manzil,
Jyothi Nag ar, 9 t h Cross,
Kelarkalab ettu, Udupi Taluk,
Udupi District - 576105
                                         ...Respondent
(By Sri. Shobhith N.Shetty, Ad vocate)

     This Criminal Revision Petition is filed under
Section 397 of r/w 401 Cr.P.C., praying to set aside
the judgment of conviction and the order of sentence
dated 04.12.2018 passed by the III Addl. Civil Judge
and J.M.F.C., Ud upi in C.C.No.2018/2018 and also to
set asid e the judgment dated 31.08.2019 p assed by
the Prl. District and Sessions Judge, Ud upi in
Crl.A.No.05/2019, dismissing the appeal p referred by
the petitioner herein and acquit the p etitioner.


In Crl.RP.No.1403/2019:

BETWEEN:

Mr. G.H.Abdul Kadri,
Aged 42 years,
                         :: 4 ::


s/o late Hassan Beary,
R/at Guddekeri,
Agumbe, Thirthahalli Taluk,
Shimoga District - 577432
                                          ...Petitioner
(By Sri. P.P.Hegde, Sr.Counsel
for Smt. H.Pavithra, Advocate)

AND:

Mr. Mohammed Iqbal,
Aged 45 years,
s/o Late Sayyad Abubakkar,
R/at No.6/253/1, S.A.Manzil,
Jyothi Nag ar, 9 t h Cross,
Kelarkalab ettu, Udupi Taluk,
Udupi District - 576105
                                         ...Respondent
(By Sri. Shobhith N.Shetty, Ad vocate)

     This Criminal Revision Petition is filed under
Section 397 of r/w 401 Cr.P.C., praying to set aside
the judgment of conviction and the order of sentence
dated 04.12.2018 passed by the III Addl. Civil Judge
and J.M.F.C., Ud upi in C.C.No.2015/2018 and also to
set asid e the judgment dated 31.08.2019 p assed by
the Prl. District and Sessions Judge, Ud upi in
Crl.A.No.09/2019, dismissing the appeal p referred by
the petitioner herein and acquit the p etitioner.

In Crl.RP.No.1405/2019:

BETWEEN:

Mr. G.H.Abdul Kadri,
Aged 42 years,
s/o late Hassan Beary,
R/at Guddekeri,
Agumbe, Thirthahalli Taluk,
Shimoga District - 577432
                                          ...Petitioner
(By Sri. P.P.Hegde, Sr.Counsel
for Smt. H.Pavithra, Advocate)
                         :: 5 ::


AND:

Mr. Mohammed Iqbal,
Aged 45 years,
s/o Late Sayyad Abubakkar,
R/at No.6/253/1, S.A.Manzil,
Jyothi Nag ar, 9 t h Cross,
Kelarkalab ettu, Udupi Taluk,
Udupi District - 576105
                                         ...Respondent
(By Sri. Shobhith N.Shetty, Ad vocate)

     This Criminal Revision Petition is filed under
Section 397 of r/w 401 Cr.P.C., praying to set aside
the judgment of conviction and the order of sentence
dated 04.12.2018 passed by the III Addl. Civil Judge
and J.M.F.C., Ud upi in C.C.No.2019/2018 and also to
set asid e the judgment dated 31.08.2019 p assed by
the Prl. District and Sessions Judge, Ud upi in
Crl.A.No.06/2019, dismissing the appeal p referred by
the petitioner herein and acquit the p etitioner.


In Crl.RP.No.1352/2019:

BETWEEN:

Mr. G.H.Abdul Kadri,
Aged 42 years,
s/o late Hassan Beary,
R/at Guddekeri,
Agumbe, Thirthahalli Taluk,
Shimoga District - 577432
                                          ...Petitioner
(By Sri. P.P.Hegde, Sr.Counsel
for Smt. H.Pavithra, Advocate)

AND:

Mr. Mohammed Iqbal,
Aged 45 years,
s/o Late Sayyad Abubakkar,
R/at No.6/253/1, S.A.Manzil,
                          :: 6 ::


Jyothi Nag ar, 9 t h Cross,
Kelarkalab ettu, Udupi Taluk,
Udupi District - 576105
                                         ...Respondent
(By Sri. Shobhith N.Shetty, Ad vocate)

     This Criminal Revision Petition is filed under
Section 397 of r/w 401 Cr.P.C., praying to set aside
the judgment of conviction and the order of sentence
dated 04.12.2018 passed by the III Addl. Civil Judge
and J.M.F.C., Ud upi in C.C.No.2017/2018 and also to
set asid e the judgment d ated 31.08.2019 p assed by
the Prl. District and Sessions Judge, Ud upi in
Crl.A.No.10/2019, dismissing the appeal p referred by
the petitioner herein and acquit the p etitioner.

     These Criminal Revision Petitions pertaining to
Beng aluru Bench having b een heard & reserved on
05.04.2022, coming on for pronouncement this day,
the Court sitting at Kalaburagi Bench through video
conferencing p ronounced the following:

                        ORDER

All these revision petitions are disposed of by

a common order as the parties and the question to

be decided are common.

2. The Principal District and Sessions Judge,

Udupi, by his common judgment dated 31.8.2019

dismissed Criminal Appeals 5 to 10/2019 preferred

by the petitioner herein challenging the judgment

of conviction passed by Judicial Magistrate First

Class ('Magistrate' for short'), Udupi, in C.C.Nos.

:: 7 ::

2013/2018, 2015/2018, 2016/2018, 2017/2018,

2018/2018 and 2019/2018. The petitioner being

the accused in all these criminal cases faced

prosecution for the offence under section 138 of

the Negotiable Instruments Act as the cheques

issued by him for discharging his liability in

connection with the loan said to have been

obtained by him from the respondent were

dishonoured for want of sufficient funds in his

bank account.

3. It has been held by the Magistrate in all

the cases that the petitioner did not appear before

the court in spite of service of summons on him.

Therefore the Magistrate, following the judgment

of the Supreme Court in the case of Indian Bank

Association and Others vs Union of India

[(2014) 5 SCC 590], accepted the affidavits filed

in all the cases by the respondent,

dispensed with the statement of the accused under :: 8 ::

section 313 Cr.P.C and then proceeded to convict

and sentence the petitioner in all the cases.

Except referring to the judgments of the Supreme

Court in Indian Bank Association,

T.Vasanthakumar vs Vijayakumari [(2015) 8

SCC 378], K.Subramani vs Damodar Naidu

[(2015) 1 SCC 99] and Heinz India Private

Limited vs State of Uttar Pradesh [(2012) 5

SCC 443], the learned Magistrate has not

discussed the facts and the evidence.

4. The learned Sessions Judge has held that

from the evidence given by the complainant and

the documents produced by him, a case against

the petitioner/accused was made out. The Sessions

Judge has observed that as it is held in various

judgments that offence under section 138 is a

document based offence and therefore there is no

need for waiting for the accused to appear before :: 9 ::

the court, the trial court is justified in convicting

the petitioner in all the cases.

5. Sri P.P.Hegde, learned senior counsel for

the petitioner, assailing the judgment of the

Sessions Court as also of the Magistrate urged the

following grounds for consideration in these

revision petitions : -

5.1. The trial court erred in holding the trial

in the absence of the accused; unfortunately the

Sessions Court also affirmed the findings of the

trial court without noticing the fact that the

accused was not secured at all. Criminal trials

must be held in the presence of the accused unless

the accused seeks exemption of his personal

appearance.

5.2. Section 143 of the Negotiable

Instruments Act provides for summary trial and it

is clearly mentioned in the said section that the

procedure prescribed in sections 262 to 265 of the :: 10 ::

Code of Criminal Procedure shall apply for

conducting trials. In this view, recording plea of

the accused under section 251 of Cr.P.C is

compulsory. Since the trial court has not followed

this procedure, the judgment of conviction violates

the concept of due procedure of law found in

Article 21 of the Constitution of India.

5.3. The trial court has referred to many

judgments of the Supreme Court, but it has failed

to understand the actual principles laid down in

them. The Sessions Judge, sitting in appeal,

should have meticulously examined whether the

judgment of the trial court challenged before him

could actually be sustained. Even the approach of

the Sessions Judge appears to be very mechanical.

5.4. If the accused does not respond to the

summons issued by the Magistrate, his presence

must be secured by issuing warrant or

proclamation. The judgment of the Supreme Court :: 11 ::

in Indian Bank Association does not state that

the trial can be held in the absence of the

accused, there is no concept of placing the

accused ex-parte as is prevalent in civil trials.

Examination of the accused under section 313

Cr.P.C is also mandatory and it can be dispensed

with only in summons trials if the personal

appearance of the accused is exempted. This is

not the case here. Thus both the courts have

failed to follow the procedure and thereby

deprived the accused of an opportunity to defend

himself. In this view, all the petitions require to

be allowed and the judgments of the appellate

court as also the trial court are to be set aside and

the trial court be directed to hold fresh trial.

6. Sri Shobhith N Shetty, learned counsel

for the respondent in all the cases, argued that

actually summons was served on the accused, he

did not appear before the court and in this view :: 12 ::

the trial court had to proceed further in his

absence. The Magistrate has followed the

procedure laid down by the Supreme Court in

Indian Bank Association. There is no legal

infirmity in the judgment of the trial court which

has been rightly confirmed by the appellate court.

Therefore the petitions are to be dismissed.

7. I have carefully considered the

arguments of the learned counsel for the parties.

The judgment of the sessions court in the appeal,

as has been already observed, is since mechanical

affirmation of the findings of the trial court, it is

better to examine the findings recorded by the

trial court.

8. In the beginning itself, unhesitatingly, it

can be stated that the judgment of the trial court

is a very good example as to how justice suffers if

the judges blindly place reliance on case law

without understanding the true purport of the :: 13 ::

principles laid down in those decisions with utter

disregard for the first principles of law.

9. The reasoning portion of the judgment of

the trial court starts from para 16. The trial court

has drawn presumption in favour of the respondent

under sections 118 and 139 of the Negotiable

Instruments Act observing that the petitioner

being the accused failed to rebut the evidence

given by the respondent. Following the judgment

of the Supreme Court in the case of Indian Bank

Association, the trial court adopted the affidavit

filed by the respondent at the inception as

sufficient compliance of evidence to be adduced

post summons stage, and of course there is no

legal infirmity in it. But the trial court has

proceeded on the ground that the Hon'ble Supreme

Court in the case of Indian Bank Association has

held that there is no need to secure the presence

of the accused. This is the wrong committed by :: 14 ::

the trial court. If the entire judgment of the

Supreme Court in the said case is read, no where

it is found that in case the accused fails to appear

before the court having received summons, the

trial can be held in his absence. In the guidelines

the Hon'ble Supreme Court has set out, guideline

Nos.2,3 and 4 read as below:

         "23.2.        MM/JM      should       adopt      a
    pragmatic and realistic approach                   while
    issuing     summons.       Summons          must     be

properly addressed and sent by post as well as by e-mail address got from the complainant. The Court, in appropriate cases, may take the assistance of the police or the nearby Court to serve notice on the accused. For notice of appearance, a short date be fixed. If the summons is received back un-served, immediate follow up action be taken.

23.3. Court may indicate in the summons that if the accused makes an application for compounding of offences at the first hearing of the case and, if :: 15 ::

such an application is made, the Court may pass appropriate orders at the earliest.

23.4. The Court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice under Section 251 Cr.P.C. to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for re-calling a witness for cross-examination."

10. The above observations clearly indicate

that summons must be sent to the proper address

of the accused and that the summons may also be

served by sending it to the email address of the

accused; and in appropriate cases, the assistance

of the police or the near by court may be sought

for service of summons. It is further stated that if

the summons served is received back unserved,

immediate follow up action must be taken. That :: 16 ::

means, if summons is not served, the reason for

non-service must be ascertained and then

summons may be re-issued or warrant may be

issued. This para does not indicate that if the

accused does not appear before the court in spite

of service of summons on him, the trial can be

held in his absence. Contextually, reliance may be

placed on the judgment of the Division Bench of

this court in M/s Mac Charles (I) Limited vs

Chandrashekar and Another [ILR 2005 KAR

3648], where it is held :

"9. ...... The Rule enacted in this Section makes it imperative that all evidence in an inquiry or trial shall be taken in the presence of the accused. That being so, no exparte decision regarding the guilt or otherwise of the accused can be recorded in the absence of the accused. This being the clear position of law in case of criminal trials, it is to be held that no criminal trial where the plea of the accused has to be :: 17 ::

recorded, the evidence has to be taken at a trial and the accused if found guilty will have to be convicted and sentenced either with imprisonment or fine, could be effectively held in the absence of the accused. In other words, the exparte procedure as prescribed under the civil law is unknown to criminal law. In this view of the matter, our answer to Question No. 3 must necessarily be in the negative."

11. 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 :: 18 ::

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.

Explanation.- In this section," accused" includes a person in relation to whom any proceeding under Chapter VIII has been commenced under this Code."

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.

:: 19 ::

12. 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 ex parte similar to one

found in Code of Civil Procedure which provides for

placing a defendant ex parte 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 :: 20 ::

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 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.

13. 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 :: 21 ::

another judgment of the Supreme Court in the

case of Basavaraj R Patil and Others vs State

of Karnataka and Others [(2000) 8 SCC 740]

and of the coordinate Bench of this court in M/s

Cheminova India Limited vs Jajee Pesticides

and Others [ILR 2013 KAR 5395]. 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.

14. 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 :

:: 22 ::

"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 physical 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 :: 23 ::

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 it is clear that Basavaraj R Patil does

not dispense with examination of the accused

under section 313 Cr.P.C.

15. The facts in Cheminova India Limited

show that the trial court dispensed with the

examination of the accused under section 313 :: 24 ::

Cr.P.C, but that aspect did not actually emanate

for discussion before the coordinate bench. The

scope of section 145 of Negotiable Instruments Act

was the point of discussion and no where it is held

that examination of the accused under section 313

Cr.P.C can be dispensed with. Thus it is clear that

both the courts below have misapplied the

principles laid down in the above referred

decisions.

16. Conclusion therefore is that trial cannot

be held in the absence of an accused unless

personal appearance is dispensed with for valid

reasons and there cannot be dispensation of

examination of an accused under section 313

Cr.P.C if incriminating evidence appears in the

evidence of the witness. Speedy trial does not

take the meaning of jumping the stages in criminal

trial. In view of this discussion, I hold that all

these revision petitions deserve to be allowed for :: 25 ::

the purpose of disposal of all the cases afresh by

the trial court. Hence, the following :

ORDER The revision petitions are allowed.

(i) Judgment dated 31.8.2019 in Criminal Appeals 5 to 10/2019 on the file of Principal District and Sessions Judge, Udupi, is set aside, consequently the appeals are allowed, the judgments of III Addl. Judicial Magistrate, First Class, Udupi, in C.C.Nos.

                 2013/2018,                         2015/2018,
                 2016/2018,                 2017/            2018,

2018/2018 and 2019/2018 are set aside, and all the cases are remanded to the court of III Addl. Judicial Magistrate, First Class, Udupi, for disposal afresh.

         (ii)    The parties are directed to appear
                 before     the      Magistrate        Court       on

27.6.2022, and that the accused subject to provision as to bail after his appearance before the :: 26 ::


              Magistrate,         is     given    liberty    to
              apply          under      section       145    of
              Negotiable          Instruments         Act    for
              cross-examining             the complainant
              and      his    witnesses.         He   is also