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2023 DIGILAW 602 (KAR)

Chandrashekar v. H. M. Ningaraju

2023-04-17

S.VISHWAJITH SHETTY

body2023
JUDGMENT 1. This Criminal Revision Petition under Sec. 397 of Code of Criminal Procedure, 1973 (for short 'Cr.P.C') is filed by the accused challenging the judgment and order of conviction and sentence passed by the Court of I Additional Civil Judge & JMFC, Mysuru (for short the 'Trial Court) in C.C.No.3339/2008 dtd. 27/6/2013 and the judgment and order passed by Court of V Addl. Sessions Judge, Mysuru (for short the 'Appellate Court') in Crl.A.No.201/2013 dtd. 28/7/2014. 2. Heard the learned counsel appearing for the parties. 3. Facts leading to filing of this petition as revealed from the records narrated briefly are, the respondentcomplainant had filed a private complaint under Sec. 200 of Cr.P.C., against the petitioner for the offence punishable under Sec. 138 of Negotiable Instruments Act, 1881 ( for short, the 'Act') contending that the petitioner had borrowed a sum of Rs.3.00 lakhs from him in the month of May, 2008 and towards repayment of the said amount, he had issued a cheque bearing no.395136 drawn on the Mandya District Co-operative Central Bank Ltd., Arakere Branch, Mandya. When the said cheque was presented for realization, the same was dishonoured by the drawee bank with shara "Insufficient funds". The respondentcomplainant thereafter got issued a legal notice dtd. 6/9/2008 to the petitioner and in spite of service of the same, the petitioner had not paid the amount demanded in the legal notice nor had issued any reply to the said legal notice. It is under these circumstances, the respondent had filed a private complaint against the petitioner for the offence punishable under Sec. 138 of N.I. Act. In the said proceedings, after service of summons, the petitioner had appeared before the Trial Court and pleaded not guilty. 4. The respondent - complainant to prove his case had examined himself as PW.1 and got marked 6 documents as Exs.P1 to P6. The petitioner however, did not lead any defence evidence. The trial court by its judgement and order dtd. 27/6/2013 had convicted the petitioner for the offence punishable under sec. 138 of the Act and sentenced him to pay fine of Rs.3, 25, 000.00 and in default, to undergo simple imprisonment for a period of 6 months. The appeal filed by the petitioner - accused against the said judgement and order of conviction and sentence passed by the trial court was dismissed by the appellate court in Crl.A.No.201/2013 dtd. 28/7/2014. 138 of the Act and sentenced him to pay fine of Rs.3, 25, 000.00 and in default, to undergo simple imprisonment for a period of 6 months. The appeal filed by the petitioner - accused against the said judgement and order of conviction and sentence passed by the trial court was dismissed by the appellate court in Crl.A.No.201/2013 dtd. 28/7/2014. It is under this factual background, the petitioner is before this Court. 5. Learned counsel appearing for the petitioner submits that the Courts below have erred in convicting the petitioner for the offence punishable under Sec. 138 of N.I. Act. He submits that the answer given by the petitioner during the course of his questioning by the trial Court while recording his statement under Sec. 313 of Cr.P.C are not legible. Noncompliance of requirement of Sec. 313 of Cr.P.C vitiates the entire trial and also the order of conviction passed against the petitioner. Accordingly, he prays to allow the revision petition. 6. Per contra, learned counsel for the respondent has argued in support of the impugned judgment and order of conviction and he prays to dismiss the petition. However, he did not dispute the fact that the answers of accused recorded by the trial Court during the course of recording his statement under Sec. 313 of Cr.P.C are not legible. 7. I have carefully heard the arguments addressed on both sides and also perused the material available on record. 8. The statement of accused under Sec. 313 of Cr.P.C was recorded by the trial Court on 27/3/2013. A perusal of the same would go to show that the trial Court had framed as many as six questions and answer to the said questions have been recorded separately one after the another. Except the answer which was given by the petitioner for question nos.1 and 5, the answer given to the other questions by the petitioner, which has been recorded by the trial Court, are not legible. In the answer to question no.5, the petitioner has stated that he has got defence evidence. Recording of statement of accused under Sec. 313 of Cr.P.C, is a important stage in criminal trial wherein the Court is required to comply the principles of natural justice. In the answer to question no.5, the petitioner has stated that he has got defence evidence. Recording of statement of accused under Sec. 313 of Cr.P.C, is a important stage in criminal trial wherein the Court is required to comply the principles of natural justice. It is trite that recording of Sec. 313 of Cr.P.C is not a empty formality and the court should be cautious and careful to properly record the statement of the accused under Sec. 313 of Cr.P.C. 9. The Hon'ble Supreme Court in the case of SANATAN NASKAR AND ANOTHER V. STATE OF WEST BENGAL - (2010) 8 SCC 249 , at paragraph nos.21 to 23 has observed as follows: "21. The answers by an accused under Sec. 313 CrPC are of relevance for finding out the truth and examining the veracity of the case of the prosecution. The scope of Sec. 313 CrPC is wide and is not a mere formality. Let us examine the essential features of this sec. and the principles of law as enunciated by the judgments which are the guiding factors for proper application and consequences which shall flow from the provisions of Sec. 313 CrPC. 22. As already noticed, the object of recording the statement of the accused under Sec. 313 CrPC 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 the prosecution. At the same time, also permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. The court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory obligation upon the court and, besides ensuring the compliance therewith, the court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simpliciter denial or, in the alternative, to explain his version and reasons for his alleged involvement in the commission of crime. This is the statement which the accused makes without fear or right of the other party to cross-examine him. However, if the statements made are false, the court is entitled to draw adverse inferences and pass consequential orders as may be called for in accordance with law. This is the statement which the accused makes without fear or right of the other party to cross-examine him. However, if the statements made are false, the court is entitled to draw adverse inferences and pass consequential orders as may be called for in accordance with law. The primary purpose is to establish a direct dialogue between the court and the accused and to put every important incriminating piece of evidence to the accused and grant him an opportunity to answer and explain. Once such a statement is recorded, the next question that has to be considered by the court is to what extent and consequences such statement can be used during the enquiry and the trial. Over the period of time, the courts have explained this concept and now it has attained, more or less, certainty in the field of criminal jurisprudence. 23. The statement of the accused can be used to test the veracity of the exculpatory nature of the admission, if any, made by the accused. It can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case. The provisions of Sec. 313(4) CrPC explicitly provide that the answers given by the accused may be taken into consideration in such enquiry or trial and put in evidence for or against the accused in any other enquiry into or trial for any other offence for which such answers may tend to show he has committed. In other words, the use is permissible as per the provisions of the Code but has its own limitations. The courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this sec. should not be considered in isolation but in conjunction with evidence adduced by the prosecution." 10. In the case of SATBIR SINGH AND ANOTHER V. STATE OF HARYANA - (2021) 6 SCC 1 , in paragraph no.38.6 has observed as follows: "38.6. It is a matter of grave concern that, often, trial courts record the statement under Sec. 313 CrPC in a very casual and cursory manner, without specifically questioning the accused as to his defence. In the case of SATBIR SINGH AND ANOTHER V. STATE OF HARYANA - (2021) 6 SCC 1 , in paragraph no.38.6 has observed as follows: "38.6. It is a matter of grave concern that, often, trial courts record the statement under Sec. 313 CrPC in a very casual and cursory manner, without specifically questioning the accused as to his defence. It ought to be noted that the examination of an accused under Sec. 313 CrPC cannot be treated as a mere procedural formality, as it is based on the fundamental principle of fairness. This aforesaid provision incorporates the valuable principle of natural justice "audi alteram partem" as it enables the accused to offer an explanation for the incriminatory material appearing against him. Therefore, it imposes an obligation on the court to question the accused fairly, with care and caution." 11. In the case of NAR SINGH V. STATE OF HARYANA - (2015) 1 SCC 496 , in paragraph no.11, the Hon'ble Supreme Court has observed as follows: "11. The object of Sec. 313(1)(b) CrPC is to bring the substance of accusation to the accused to enable the accused to explain each and every circumstance appearing in the evidence against him. The provisions of this sec. are mandatory and cast a duty on the court to afford an opportunity to the accused to explain each and every circumstance and incriminating evidence against him. The examination of the accused under Sec. 313(1)(b) CrPC is not a mere formality. Sec. 313 CrPC prescribes a procedural safeguard for an accused, giving him an opportunity to explain the facts and circumstances appearing against him in the evidence and this opportunity is valuable from the standpoint of the accused. The real importance of Sec. 313 CrPC lies in that, it imposes a duty on the court to question the accused properly and fairly so as to bring home to him the exact case he will have to meet and thereby, an opportunity is given to him to explain any such point." 12. From perusal of the Sec. 313 of Cr.P.C statement recorded in the present case, it is very clear that the answers given by the petitioner/accused to the questions which were asked to him by the Court have not been recorded properly. Out of the six, the answers given by the petitioner for four questions are not legible. 13. From perusal of the Sec. 313 of Cr.P.C statement recorded in the present case, it is very clear that the answers given by the petitioner/accused to the questions which were asked to him by the Court have not been recorded properly. Out of the six, the answers given by the petitioner for four questions are not legible. 13. Learned counsel for the petitioner, as well as the learned counsel for the respondent after going through the records have also expressed their inability to read the answers recorded by the trial Court. It is trite law that in a case where non-compliance of mandatory provisions of Sec. 313 of Cr.P.C, statement is found and if the same has caused prejudice the accused, then the matter has to be remanded to the trial Court for re-trial from the stage of recording statement of accused. Under the circumstance, I am of the considered view that the impugned judgment and order of conviction and sentence passed by the Courts below which are vitiated for non-compliance of requirement of Sec. 313 of Cr.P.C, cannot be sustained. Accordingly, the following:- ORDER The judgment and order of conviction and sentence passed by the Courts below are set-aside and the matter is remitted to the Court of I Additional First Civil Judge and JMFC, Mysuru for retrial from the stage of recording statement of accused under Sec. 313 of Cr.P.C and for disposal of the matter in accordance with law. Since the case is of the year 2008, the trial Court shall make endeavour to dispose of the case at the earliest but not later than a period of 4 months from the date of receipt of certified copy of this order.