TMI Blog2022 (6) TMI 371X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the trial court - the case 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 nearby 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 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19/2018. 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 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 fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 nearby 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 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 imperati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs: (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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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