Thursday, 16 July 2020

Whether the court can proceed ex parte against the accused in cheque dishonour case and give exparte decision regarding his guilt or otherwise of the matter?

Indisputably the provisions contained in Section 138 of the Negotiable Instruments Act is a substantive offence which deals with the conviction of the accused on being found guilty of such offence and the imposition of sentence on him on being so convicted thereunder. It is a criminal offence and not merely a recovery proceeding as sought to be argued on behalf of the petitioner and hence the proceedings instituted under Section 200 of Cr.P.C for the alleged offence under Section 138 of the Negotiable Instruments Act like any other criminal trial has to be held in the presence of the accused. It is no doubt true that the trial for such offence should be a summary trial. But summary trial does not mean that the trial could be proceeded in the absence of an accused. Section 143 of the Negotiable Instruments Act does not direct the Court to follow the procedure prescribed for trials under the Civil Procedure Code and on the contrary, it directs the Court to follow the procedure prescribed for trials under the Cr.P.C. Hence it is a criminal trial. Even in the case of summary trials, the plea of the accused has to be recorded and if the accused is found guilty after a regular trial, the accused will have to be convicted and substantive sentence of imprisonment or fine has to be imposed. That apart the evidence has to be taken in the presence of the accused. It is equally true that under Section 144 of the Negotiable Instruments Act, the evidence could be adduced in the form of an affidavit. But then that affidavit has to be countered by the other side in order to hold the accused guilty in case if the substance of the accusations made against the accused are found true and also he will have to be convicted of the substantive sentence for the offence under Section 138 of the Negotiable Instruments Act. All these cannot be done in the absence of an accused. Therefore having regard to the nature of procedure to be undergone in a criminal trial, the presence of the accused is a must. However one exception can be made in the case of an accused which is a company which cannot be convicted with a substantive sentence of imprisonment and could be sentenced with fine only in case if it is found guilty of the offence under Section 138 of the Negotiable Instruments Act. But normally a criminal trial whether it be for the offence under the IPC or under the Negotiable Instruments Act, cannot be held in the absence of an accused as the evidence at the trial has to be taken either in his presence or in the presence of his counsel in case if the personal presence of the accused is dispensed with in accordance with law. It is apparent from Section 4 that the provisions of the Cr.P.C are applicable where an offence under the Penal Code or under any other law is being investigated, inquired into, tried or otherwise dealt with. Section 273 of Cr.P.C makes it obligatory that the evidence for the prosecution and defence should be taken in the presence of the accused. 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 ex parte 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 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 ex parte 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.
IN THE HIGH COURT OF KARNATAKA

Reference in Criminal Petition No. 778/2005

Decided On: 30.06.2005

 Mac Charles (I) Ltd.  Vs.  Chandrashekar and Ors.

Hon'ble Judges/Coram:
B. Padmaraj and C.R. Kumaraswamy, JJ.

Citations: 2006 (1) ALD Cri 44, III (2006) BC 143, 2005 CriLJ 3700, ILR 2005 KAR 3648, 2006 (2) KarLJ 570, MANU/KA/0272/2005
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