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2012 DIGILAW 888 (KAR)

Badrinath Ladda v. D. Vijaya

2012-10-11

A.N.VENUGOPALA GOWDA

body2012
Judgment 1. This Revision Petition is directed against the judgment dated 25.6.2008 passed by the XXXVI Additional City Civil Sessions Judge at Bangalore, by which, the judgment in C.C.No.14587/2004 dated 17.10.2006 passed by the XXII Additional Chief Metropolitan Magistrate, Bangalore, convicting and sentencing the accused to pay fine of Rs.80,00,000/-, in default, to undergo simple imprisonment for a period of 12 months, for an offence punishable under S.138 of the Negotiable Instruments Act (“the Act” for short), was set aside and the matter was remanded to the Trial Court for decision. 2. Respondent herein is the original complainant and the petitioner herein is the accused. For convenience, the parties would be referred to with reference to their original ranks. 3. According to the complaint, the complainant carried on business in the name of M/s. Sumith Impex. The accused is the proprietor of M/s. Sreenidhi Trading Company. Accused offered to endorse and supply 5o thousand metric tones of iron ore mud and the complainant paid Rs.45,00,000/-for supply of the said material. In view of failure of the accused to supply the said material, complainant asked the accused to refund the said amount and the accused issued a cheque dated 16.4.2004 in favour of the complainant for payment of Rs.45,00,000/-and requested not to present the cheque till second week of June, 2004. The complainant, on 22.6.2004, presented the said cheque for encashment. The cheque was returned unpaid, with memo dated 22.6.2004, for the reason “payment stopped by the drawer”. The complainant got sent a legal notice dated 7.7.2004 calling upon the accused to pay the amount payable under the said cheque. The accused did not pay the cheque amount, but sent a reply. Alleging that the accused has committed an offence punishable under S.138 of the Act, a private complaint under S.200 Cr.P.C., was presented before the Magistrate on 6.8.2004. Cognizance ws taken and case was ordered to be registered against the accused for the offence punishable under S.138 of the Act. In response to the summons, the accused appeared and was enlarged on bail. When the charge framed and was put to the accused, he denied the same. During trial, the complainant got herself examined as PW.1 and marked Exs.P1 to P26. During cross-examination of PW.1, Exs.D1 to D6 were marked. The accused did not appear. In response to the summons, the accused appeared and was enlarged on bail. When the charge framed and was put to the accused, he denied the same. During trial, the complainant got herself examined as PW.1 and marked Exs.P1 to P26. During cross-examination of PW.1, Exs.D1 to D6 were marked. The accused did not appear. Learned Magistrate, on 17.10.2006, passed the order, whereby, the accused was convicted and sentenced, as noticed supra. 4. Assailing the judgment of conviction and order of sentence, the accused filed Crl.A.No.1789/2006 in the City Civil and Sessions Court at Bangalore. Having noticed that the accused has not been examined under S.313 Cr.P.C. and was not provided with an opportunity to lead defence evidence and that without securing the presence of the accused who was absent the judgment of conviction and order of sentence had been passed, taking into consideration the ratio of decisions in the cases of M/s. Mac Charles (I) Ltd., Vs. Chandrashekar and another, ILR 2005 Karnataka, 3648 and Naga alias Nagarajan and another Vs. State of Karnataka, 2003 Crl.L.J. 754, it was held that, remand of the matter to the Trial Court, to decide the case afresh after examining the accused under S.313 Cr.P.C. and also giving an opportunity to the accused to lead defence evidence, if any, is necessary. As a result, the appeal was allowed and the matter was remanded to the Trial Court. 5. Sri C.V.Nagesh, learned Sr. counsel, arguing for the appellant, criticised the manner in which the appellate Court has decided the appeal. He submitted that judgment of the appellate Court is highly improper and unfair, since the appellate Court has considered merits of the case, recorded categorical findings and then remanded the matter to the Trial Court for decision. He drew my attention to various parts of the judgment passed by the appellate Judge, to point out how the Magistrate would be bound by the findings recorded by the appellate Judge and will not be in a position to decide the questions of fact and law, which arise for consideration in the matter. He submitted that the impugned Judgment though is one remanding the matter to the Trial Court for decision, in effect, has concluded the case and the remand is nothing but an empty formality. He further submitted that the impugned Appellate Court Judgment, if not set aside, would result in miscarriage of justice. 6. He submitted that the impugned Judgment though is one remanding the matter to the Trial Court for decision, in effect, has concluded the case and the remand is nothing but an empty formality. He further submitted that the impugned Appellate Court Judgment, if not set aside, would result in miscarriage of justice. 6. Sri M. Veerabhadraiah, learned counsel for the respondent, on the other hand submitted that, since the arguments were addressed before the Appellate Court even on the merits of the case, the Appellate Judge being left with no other option has considered all the contentions. He submitted that, since the matter has been remanded to the Trial Court for deciding the case afresh, no interference in the matter is warranted. He further submitted that the petitioner is resorting to dilatory tactics to delay the trial and decision in the matter and hence, the Trial Court may be directed to decide the case in time-bound manner. 7. Perused the record. In view of the rival contentions, the point for consideration is: “Whether the Appellate Court has committed illegality in regarding findings on the merit of the case and in remanding the matter for decision to the Trial Court?” 8. Since the accused remained absent, he was not examined under S.313 Cr.P.C. and an opportunity to lead defence evidence was not granted. Learned trial Judge has denied reasonable opportunity of hearing to the accused. In effect, it is an exparte decision. The course adopted by the learned Magistrate is contrary to the ratio of decision in the case of M/s. Mac Charles (I) Ltd., (supra), wherein, the following questions were considered by the Division Bench: “(1) Where for a considerable period, the accused cannot be apprehended, despite efforts by Court, whether case against him may be separated in terms of Rule 2 of Chapter IV of the Karnataka Criminal Rules of Practice? (2) Whether substituted service is permissible in a criminal case? (3) Whether an accused can be proceeded exparte and a decision may be given exparte regarding his guilt or otherwise of the matter? (2) Whether substituted service is permissible in a criminal case? (3) Whether an accused can be proceeded exparte and a decision may be given exparte regarding his guilt or otherwise of the matter? While answering question Nos.1 and 2 in the affirmative and question No.3 in the negative, it has been held as follows: ] “………..no criminal trial where the plea of the accused has to be 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.” (Emphasis supplied by me) In the circumstances of the case, the Appellate Court is justified in interfering with the judgment of conviction and order of sentence passed by the learned Magistrate and in remanding the case to the Trial Court for decision in accordance with law. 9. However, the judgment passed by the appellate Judge, recording findings even on the merits of the case, is illegal. The submission made by Sri C.V. Nagesh that in the impugned Judgment, the Appellate Court has recorded clear findings on questions relating to the merits of the case and then remanded the matter to the Trial Court for decision, which is prejudicial to the interest of the accused and the remand is nothing but an exercise of futility in view of clear findings recorded against the accused on questions relating to the merit of the case, in my opinion, is well founded. 10. The appellate Court rightly found that the procedure which was adopted by the Magistrate was illegal, being against the ratio of the decision in the case of M/s. Mac Charles (I) Ltd., (supra). The Appellate Court is justified in holding that there is denial of reasonable opportunity to the accused. Since the judgment of conviction and order of sentence passed by the Trial Court was illegal for denial of reasonable opportunity to the accused, it is improper on the part of the Appellate Judge, while remanding the case for fresh decision by the Magistrate, to have recorded the findings on the merits of the case/defence of the accused. Since the judgment of conviction and order of sentence passed by the Trial Court was illegal for denial of reasonable opportunity to the accused, it is improper on the part of the Appellate Judge, while remanding the case for fresh decision by the Magistrate, to have recorded the findings on the merits of the case/defence of the accused. No doubt the learned counsel who has appeared for the appellant has made submissions both regarding denial of reasonable opportunity and also on the merits of the matter. The Appellate Court having been satisfied that the procedure followed was illegal and there is denial of reasonable opportunity to the accused and having arrived at the opinion that the accused should be granted reasonable opportunity to putforth defence, is not justified in recording any finding on the merits of the case. In view of the findings recorded by the Appellate Court on the defence of the accused, the Trial Court will not be in a position to decide the questions of fact, since it is bound to be the finding/observations contained in the Judgment of remand and consideration of the case by the Trial Court would be an empty formality. There is Jurisdiction error committed by the Appellate Court and if its Judgment, impugned herein, is allowed to remain will result in miscarriage of justice. In the circumstances, the judgment of the Appellate Court to the extent of the findings recorded by it on the merits of the case warrants interference. For the foregoing reasons, the revision petition is allowed. Judgment dated 25.6.2008 rendered by the learned Sessions Judge in Crl.A.No.1789/2006 is hereby set aside. However, the matter is remanded to the Trial Court, to proceed from the stage of examination of the accused under S.313 Cr.P.C. and for decision in accordance with law. The record shows that the accused has caused delay in the matter of trial of the case. Since the matter is quite old, the petitioner/accused is directed to remain present before the Trial Court, when required, without fail. If the accused fails to remain present, it would be open to the learned Magistrate to take necessary steps including issuance of NBW for securing the presence of the accused. Since the matter is quite old, the petitioner/accused is directed to remain present before the Trial Court, when required, without fail. If the accused fails to remain present, it would be open to the learned Magistrate to take necessary steps including issuance of NBW for securing the presence of the accused. Having regard to the fact that the case is of 2004, the learned Magistrate is directed to take up the case on priority basis and conclude the proceedings expeditiously, without granting unnecessary and unwarranted adjournments. Both the parties are directed to appear before the Trial Court on 31.10.2012 and receive orders. It is needless to say that, all questions are left open and the learned Trial Judge to decide the matter in accordance with law uninfluenced by any of the findings recorded and observations made by the learned Sessions Judge.