Thursday, 16 July 2020

Whether the court can separate trial of accused in dishonour of cheque case?

But the next important question for consideration would be what should happen to the criminal proceeding initiated against the accused if the accused did not turn up even after such service of notice on him and the same having been declared to be sufficient service by the Court. It is needless to point out that the presence of accused in a criminal trial is a must. No criminal trial could proceed in the absence of an accused for the obvious reasons that the plea of the accused has to be recorded and if he pleads not guilty, the trial has to be held in his presence and the statement of the accused if any has to be recorded and that further in case if the accused is to be convicted his presence will be very much required before the Court, more so, when the sentence to be imposed against the accused is the substantive sentence of imprisonment. In this context, a reference may be made to Section 273 of Cr.P.C which prescribes that except as otherwise expressly provided, all evidence taken in the course of the trial 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. That means the evidence in a criminal trial cannot be taken in the absence of an accused except as otherwise provided under law. In other words, a criminal trial cannot be held in the absence of an accused or his counsel when the personal presence of the accused is dispensed with in the manner as recognized under the provisions of Cr.P.C. The only exception to this procedure appears to be the one prescribed under Section 126 of Cr.P.C. But no such exception is made in cases where the plea of the accused has to be recorded, the evidence has to be taken at the trial, the statement of the accused has to be recorded and in the event of the accused being found guilty, his presence will be required for passing an order of conviction and if he is to be sentenced with imprisonment, his presence is required. This being the position in a criminal trial, if the accused did not respond even after the service of notice to him by the other mode of service prescribed under Section 65 or under Section 144 of the Negotiable Instruments Act, the presence of the accused will have to be secured by resorting to the coercive methods like issue of warrants and proclamation in the manner as contemplated under the provisions of the Cr.P.C. This is very much necessary because in the absence of an accused, a criminal trial cannot be proceeded with effectively and the accused cannot be convicted and sentenced to custodial sentence without his personal presence being secured before the Court. There may be cases where even by resorting to such coercive measures, the presence of the accused could not be secured within a reasonable time, then the provisions as contemplated under Chapter IV of the Karnataka Criminal Rules of Practice will have to be resorted to and the case against such accused will have to be split up and it is only for the purpose of invoking the provisions contained in Chapter IV of the Karnataka Criminal Rules of Practice, the Court can resort to the procedure as prescribed under Section 299 of Cr.P.C. of recording the evidence of witnesses in the absence of the accused. Such a procedure is permissible only for the purpose of invoking the provisions contained under Chapter IV of the Karnataka Criminal Rules of Practice and not for the purpose of holding a trial when the presence of the accused could not be secured. Therefore in a criminal trial where the presence of the accused is a must and where the presence of the accused could not he secured in the manner known to law within a reasonable time, the case against such accused will have to be split up in the manner as provided under Chapter IV of the Karnataka Criminal Rules of Practice and the case against the remaining accused who are present before the Court could be proceeded with further in accordance with law. The same will be the procedure applicable even in cases instituted for the alleged offences under Section 138 of the Negotiable Instruments Act. 

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


1. The following questions of law have been referred to this Bench for decision by an order of the Hon'ble Chief Justice:

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 ex parte and a decision may be given ex parte regarding his guilt or otherwise of the matter?

2. The above reference to this Bench arises this way:

A Complaint Petition came to be filed by the complainant under Section 200 of Cr.P.C. against the 12 accused persons alleging the commission of offence under Section 138 of the Negotiable Instruments Act before the trial Court. The accused No. 1 in that case is the company and the accused Nos.2 to 10 are the Directors of the said company who are alleged to be the persons incharge of the day to day affairs of the said company. The accused Nos. 11 and 12, who are the respondents herein are the employees of the first accused/ company. The first accused/company had issued two cheques in favour of the complainant. They were both dated 23.11.1996. The drawer of these two cheques is the company and they are alleged to have been signed on behalf of the company by its employees viz., the accused Nos. 11 and 12. These two cheques on being presented to the Bank have been dishonoured for want of sufficient funds. Thereupon the complainant got issued a legal notice to the accused which was stated to have been duly served on them on 18.3.1994. The accused did not issue any reply, nor did they comply with the terms of the said legal notice issued by the complainant Consequent thereupon, the complainant instituted a complaint before the trial Court against the accused for having committed the alleged offence under Section 138 of the Negotiable Instruments Act. The trial Court took cognizance of the offence alleged against the accused on 11.9.1997 and directed for issue of summons to all the accused. Pursuant to which, the accused Nos. 11 and 12 (the respondents herein) entered appearance in the case through their Counsel and so also the accused No. 10. In the course of the proceedings, the trial Court having found that summons to the accused persons A-1 to A-9 could not be served under due process of law and their presence cannot be secured within a reasonable time, passed an order on 13.3.2000 splitting up of the case against the accused Nos. 1 to 10 from that of the accused Nos. 11 and 12. After the case against the accused Nos. 1 to 10 came to be split up by the trial Court in the manner as contemplated under chapter IV of the Karnataka Criminal Rules of Practice, 1968, the case as against the accused Nos. 10, 11 and 12 was proceeded with further. On 20.5.2000 the plea of the respondents as well as the accused No. 10 had been recorded. The said accused having pleaded not guilty and claimed to be tried, the complainant adduced evidence on his behalf in the case. In the meantime, the accused No. 10 approached this Court challenging the order taking cognizance of the offence against him and the Petition filed by him came to be allowed. Consequently the accused No. 10 stood discharged in the case. As of now, the trial of the case is pending against the respondents herein who are accused Nos. 11 and 12. When the matter was set down for hearing arguments, an application came to be filed before the trial Court challenging the order dated 13.3.2000 by the respondents herein. By that application they also sought for their discharge. That application of the respondents herein came to be dismissed by the trial Court on 5.8.2004. Aggrieved thereby, the respondents herein filed a Revision Petition before the Sessions Court which came to be dismissed on 17.8.2004. Challenging both the orders, the respondents herein came up before this Court by filing a petition under Section 482 of Cr.P.C. The said Criminal Petition after contest, came to be disposed of on 4.1.2005 with a direction to the complainant to take steps to proceed against the accused Nos. 1 to 9 as well, in addition to the accused Nos. 11 and 12. In that Criminal Petition, the learned Single Judge of this Court has however held that the order of splitting up of the case against the accused persons A-1 to A-9 is bad in law. It appears that the said order has become final and conclusive as none of the parties have challenged the said order. Thereafter the respondents herein stated to have filed a memo furnishing the addresses of the accused Nos. 2 to 9 for issue of summons to them before the trial Court. The complainant has however filed an application to take out paper publication against the accused Nos. 1 to 9. That is to say, the complainant sought for issue of notice to them by publication in the local news paper which was in circulation in the locality. The trial Court granted the prayer made in the application of the complainant. It appears that the said order came to be passed by the trial Court pursuant to the observations made by this Court in the criminal petition filed under Section 482 of Cr.P.C by the respondents in Criminal Petition No. 2906/2004. The said order of the trial Court granting the prayer of the complainant came to be challenged in revision by the respondents herein. The said Revision Petition having been allowed, the complainant has come up before this Court by filing a petition under Section 482 of Cr.P.C. In the petition so filed by the complainant under Section 482 of Cr.P.C. in Criminal Petition No. 778/2005, the present reference came to be made by the learned single Judge.
3. We have heard the arguments of the Learned Counsel on either side on the reference made to this Bench at a considerable length and carefully perused the relevant provisions of Cr.P.C, the Karnataka Criminal Rules of Practice and the Negotiable Instruments Act with their assistance.

4. Learned Counsel for the petitioner has contended that Rule 2 of the Karnataka Criminal Rules of Practice has no application to the proceedings initiated for the offence under Section 138 of the Negotiable Instruments Act. While elaborating this submission, he contended that a separate mode of service of summons has been prescribed under Section 144 of the Negotiable Instruments Act which permits the service of summons by speed post and courier service at the place where the accused has last resided and that being so, the service of summons to the accused by publication in any news paper which is widely in circulation at the place of the accused could also be considered to be one of the recognized or accepted mode of service of summons to the accused either by implication or by analogy. According to the learned Counsel for the petitioner, the institution of proceedings for the offence under Section 138 of the Negotiable Instruments Act mainly being in the nature of the recovery proceedings, they are quasi-criminal in nature and the accepted mode of service of summons in the civil proceedings could by implication be extended to such proceedings also which is mainly in the nature of the recovery proceeding based on contractual rights almost akin to the civil proceedings. He also contended that certain amendments have been introduced to the original enactment of the Negotiable Instruments Act with a view to expedite the proceedings under Section 138 of the Negotiable Instruments Act and hence such a mode of service of summons to the accused is permissible in law and the same cannot be found fault with more so, when Section 144 of the Negotiable Instruments Act as well as Section 65 of Cr.P.C recognizes the other mode of service other than the personal service and the same being treated or declared to be sufficient service by the criminal Court. He however fairly concedes that the proceedings under Section 138 of the Negotiable Instruments Act being the one initiated in accordance with the procedure prescribed under the Cr.P.C. and the offences under the Negotiable Instalments Act being tried as a summary trial, the accused who remains absent and whose presence could not be secured within a reasonable time, the case as against such accused could be split up in the manner known to law and the proceedings against the other accused who are present before the Court could be proceeded with. He also fairly conceded that such a procedure is permissible in a criminal trial in view of the provisions contained under chapter IV of the Karnataka Criminal Rules of Practice. He further contended that when once the other mode of service of summons to the accused other than the personal service is recognized, the proceedings initiated under Section 138 of the Negotiable Instruments Act can be proceeded expert even in the absence of the accused whose presence could not be secured within a reasonable time and the decision could be rendered expert even against the absentee accused by holding him guilty of the offence under Section 138 of the Negotiable Instruments Act and imposing the alternate sentence of fine instead of substantive sentence of imprisonment, more so, when the proceedings initiated under Section 138 of the Negotiable Instruments Act being quasi-criminal in nature and the alternate sentence of imposing of sentence of fine only is permissible under law. He therefore contended that the answers to the Questions Nos. 1 to 3 referred for decision to this Bench may be recorded in the affirmative as the same being permissible in law. In support of his submissions, he sought to draw support from the provisions contained in Sections 126 and 144 of Cr.P.C. He further placed reliance upon a decision of this Court in the case of Percy Fernandes v. Smt. Anita Patrao MANU/KA/0323/2004 : 2004(4) KCCR 2216 wherein the learned single Judge of this Court while dealing with the provision of Section 145 of the Negotiable Instruments Act has held as under:

"In view of provisions of Section 145 of N.I. Act and other provisions, and the opening words of Section 145 of N.I. Act, Section 145 of N.I. Act will have over riding effect on the provisions of Cr.P.C. So, not withstanding any thing contained in Cr.P.C evidence of complainant could be given by him on affidavit and it could be read in evidence in any enquiry, trial or other proceeding under Cr.P.C. but subject to all exceptions."
5. In response, the Learned Counsel for the respondents has contended that in the criminal petition filed before this Court, it was held that the order of splitting up of the case against the other accused is bad in law and the said decision between the parties has become final and conclusive, which cannot be reopened on the factual aspects of the case. The Learned Counsel for the respondents would however fairly concede on the question of law that such a procedure is recognized under Chapter IV of the Karnataka Criminal Rules of Practice in criminal trials as the personal presence of the accused is very much required in a criminal trial and when the personal presence of some of the accused could not be secured in the manner known to law, the case against such accused may be split up in the manner as contemplated under Chapter IV of the Karnataka Criminal Rules of Practice. Learned Counsel for the respondents would however add that in such circumstances the accused against whom the proceedings will be continued will be seriously prejudiced by such splitting up of a case, more so, when the case against a company is to be split up of which the respondents are only the employees. But the Learned Counsel for the respondents would however fairly concede that in a criminal trial the splitting up of a case against the accused whose presence could not be secured within a reasonable time in the manner known to law, is permissible under Chapter IV of the Karnataka Criminal Rules of Practice. Learned Counsel for the respondents has further contended that though there is no specific provision for service of summons to the accused by paper publication, the provisions contained in Section 65 of Cr.P.C as well as Section 144 of the Negotiable Instruments Act gives necessary guidance that such a mode of service of summons to the accused is a recognized mode of service of summons to the accused. Learned Counsel for the respondents would however contend that though substituted service is permissible in a criminal trial under Section 65 of the Cr.P.C, as well as under Section 144 of the Negotiable Instruments Act, the trial of offence charged against the accused cannot be held in his absence and the presence of the accused has to be secured for the purpose of trial by resorting to the coercive measures as contemplated under law and inspite of such coercive measures being taken against the accused if his presence could not be secured, the case against such accused has to be split up in the manner as contemplated under Chapter IV of the Karnataka Criminal Rules of Practice. Learned Counsel would therefore contend that the criminal trial whether it be for the offences under the IPC or under the Negotiable Instruments Act cannot be proceeded ex parte as in the case of the civil proceedings. According to the Learned Counsel for the respondents the answer to Question No. 3 must necessarily be in the negative inasmuch as a criminal trial against an accused cannot be held ex parte.

6. We have also heard the learned SPP in this reference to assist the Court in arriving at a correct decision and he has effectively assisted the Court.

7. It has to be stated at the outset that our decision in the matter shall be confined only to the questions of law referred to us for decision and we are not supposed to go into the factual aspects of the case and the same will have to be dealt with by the learned single Judge in the criminal petition pending before him after this reference is answered. The questions which have been referred to this Bench for decision are general in nature, in the sense they are generally related to a criminal trial and they are not specified to the proceedings initiated under Section 138 of the Negotiable Instruments Act. Keeping these things in mind, we shall now proceed to deal with the questions of law referred for decision to this Bench.

8. For the sake of convenience, we shall deal with Question Nos. 1 and 2 together as they are inter-related.

9. Section 65 of Cr.P.C. prescribes that if service cannot by the exercise of due diligence be effected as provided in Sections 62, 63 or 64, the serving officer shall affix one of the duplicates of the summons to some conspicuous part of the house or homestead in which the person summoned ordinarily resides; and thereupon the Court, after making such inquiries as it thinks fit, may either declare that the summons has been duly served or order fresh service in such manner as it considers proper. Indisputably the mode of service as prescribed under Section 65 of Cr.P.C. is substituted service viz., by affixture of one of the duplicates of the summons to some conspicuous part of the house of the accused. Such a mode of service of summons to the accused could be resorted to when the service of summons to the accused in the manner as contemplated under Sections 62, 63 or 64 cannot be effective. In other words, when the summons to the accused cannot be served under the due process of law, the same could be served by substituted method of service as contemplated under Section 65 of Cr.P.C. No doubt such a mode of service as prescribed under Section 65 of Cr.P.C could be resorted to only after exhausting the other mode of service of summons under Sections 62, 63 or 64 and the same having been found to be ineffective. But the fact of the matter is that the service of summons to the accused other than the personal service is recognized under law. That is to say, service of summons to an accused even in criminal trial could be effected by substituted service by affixture of one of the duplicates of the summons to some conspicuous part of the house in which the accused ordinarily resides. There cannot be any dispute that such a mode of service is recognised under law even in criminal trials. Hence the answer to Question No. 2 shall be in the affirmative. Similarly Section 144 of the Negotiable Instruments Act recognises the alternate mode of service of summons to the accused either by speed post or through courier service. In this context, a reference may be made to the provisions contained under Section 144 of the Negotiable Instruments Act which prescribes that notwithstanding anything contained in the code of criminal procedure, and for the purposes of this chapter, a Magistrate issuing a summons to an accused or a witness may direct a copy of summons to be served at the place where such accused or witness ordinarily resides or carries on business or personally works for gain, by speed post or by such courier services as are approved by a Court of Session and Sub-section (2) of Section 144 says where an acknowledgement purporting to be signed by the accused or the witness or an endorsement purported to be made by any person authorised by the postal department or the courier services that the accused or the witness refused to take delivery of summons has been received, the Court issuing the summons may declare that the summons has been duly served. Therefore in terms of Section 144 of the Negotiable Instruments Act, the service of summons to an accused could be effected by resorting to one of the modes prescribed therein and such a service could be held or declared to be sufficient as in the case of Section 65 of Cr.P.C. It is to be concluded therefore that substituted mode of service to an accused is recognized in a criminal trial whether it be an offence under the IPC or under the Negotiable Instruments Act. 

But the next important question for consideration would be what should happen to the criminal proceeding initiated against the accused if the accused did not turn up even after such service of notice on him and the same having been declared to be sufficient service by the Court. It is needless to point out that the presence of accused in a criminal trial is a must. No criminal trial could proceed in the absence of an accused for the obvious reasons that the plea of the accused has to be recorded and if he pleads not guilty, the trial has to be held in his presence and the statement of the accused if any has to be recorded and that further in case if the accused is to be convicted his presence will be very much required before the Court, more so, when the sentence to be imposed against the accused is the substantive sentence of imprisonment. In this context, a reference may be made to Section 273 of Cr.P.C which prescribes that except as otherwise expressly provided, all evidence taken in the course of the trial 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. That means the evidence in a criminal trial cannot be taken in the absence of an accused except as otherwise provided under law. In other words, a criminal trial cannot be held in the absence of an accused or his counsel when the personal presence of the accused is dispensed with in the manner as recognized under the provisions of Cr.P.C. The only exception to this procedure appears to be the one prescribed under Section 126 of Cr.P.C. But no such exception is made in cases where the plea of the accused has to be recorded, the evidence has to be taken at the trial, the statement of the accused has to be recorded and in the event of the accused being found guilty, his presence will be required for passing an order of conviction and if he is to be sentenced with imprisonment, his presence is required. This being the position in a criminal trial, if the accused did not respond even after the service of notice to him by the other mode of service prescribed under Section 65 or under Section 144 of the Negotiable Instruments Act, the presence of the accused will have to be secured by resorting to the coercive methods like issue of warrants and proclamation in the manner as contemplated under the provisions of the Cr.P.C. This is very much necessary because in the absence of an accused, a criminal trial cannot be proceeded with effectively and the accused cannot be convicted and sentenced to custodial sentence without his personal presence being secured before the Court. There may be cases where even by resorting to such coercive measures, the presence of the accused could not be secured within a reasonable time, then the provisions as contemplated under Chapter IV of the Karnataka Criminal Rules of Practice will have to be resorted to and the case against such accused will have to be split up and it is only for the purpose of invoking the provisions contained in Chapter IV of the Karnataka Criminal Rules of Practice, the Court can resort to the procedure as prescribed under Section 299 of Cr.P.C. of recording the evidence of witnesses in the absence of the accused. Such a procedure is permissible only for the purpose of invoking the provisions contained under Chapter IV of the Karnataka Criminal Rules of Practice and not for the purpose of holding a trial when the presence of the accused could not be secured. Therefore in a criminal trial where the presence of the accused is a must and where the presence of the accused could not he secured in the manner known to law within a reasonable time, the case against such accused will have to be split up in the manner as provided under Chapter IV of the Karnataka Criminal Rules of Practice and the case against the remaining accused who are present before the Court could be proceeded with further in accordance with law. The same will be the procedure applicable even in cases instituted for the alleged offences under Section 138 of the Negotiable Instruments Act. 

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.

10. To conclude, our answers to Question Nos. 1 and 2 shall be in the affirmative whereas our answer to Question No. 3 shall be in the negative.

11. The reference is answered accordingly and the matter will have to be placed now before the learned single Judge to decide the case on merits with reference to the facts and circumstances of the case, in the light of the reference being answered by us in the manner as indicated above. The reference thus stands disposed of as above.




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