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TMI Blog2023 (2) TMI 1385X X X X Extracts X X X X X X X X Extracts X X X X ..... owed a loan of Rs. 45,000/- from the respondent/complainant during November, 2000 and had passed on a cheque for Rs. 45,000/- dated 02.02.2001, towards repayment of the loan. On the instructions of the petitioner, the respondent presented the cheque for encashment, but it was dishonored on 06.02.2001 due to insufficient funds. The respondent issued a notice of demand on 20.02.2001 which was served on the petitioner, who failed to reply to the said notice and repay the amount payable under the cheque. The respondent therefore initiated steps to prosecute the petitioner for the offence punishable under Section 138 of N.I. Act. 3. The Trial Court took cognizance of the offence and issued process to the petitioner who appeared and obtained bail. The substance of the accusation was read over to the petitioner who pleaded not guilty and claimed to be tried. The respondent was examined as PW. 1 and he marked documents as Exs. P1 to P10. The evidence was recorded in the absence of the petitioner/accused on 23.01.2003 and the case was listed for cross-examination of the respondent on 06.03.2003 on which date the respondent was absent and the case was listed on 08.04.2003. On 08.04.2003, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cr.P.C., there is no requirement of recording the statement of the accused under Section 313 of Cr.P.C., and in the present case, since the accused had consistently remained absent throughout the proceedings and the attempts made by the Trial Court to secure his presence turned futile, the Trial Court had no other option than to decide the case in his absence. She relied upon the Judgment of the Hon'ble Apex Court In SUO MOTU WRIT PETITION (CRL.) NO.2 OF 2020 in "Re: EXPEDITIOUS TRIAL OF CASES UNDER SECTION 138 OF N.I. ACT 1881" and contended that the Apex Court has proscribed the practice of converting a summary trial into a summons trial without passing appropriate orders as provided under Section 143 of N.I. Act. 7. I have considered the submissions made by the learned counsel for the petitioner and the learned Amicus Curiae for the respondent. 8. Chapter XVII was inserted into the Negotiable Instruments Act, 1881 by Act 66 of 1988. This chapter sets out the circumstance under which an offence of dishonour of cheque is said to be committed and it also lays down the procedure to be adopted while taking cognizance of offences, the Court entitled to take cognizance, the mode ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affidavit." The reliance placed by the learned counsel for the petitioner on the Judgment of the Division Bench of this Court in MAC CHARLES (2) LTD., (supra) is therefore inapplicable. 10. In the case on hand, the evidence of respondent was recorded by the Trial Court in the absence of the petitioner but the petitioner did not appear before the Court, which compelled the Court to hold that the petitioner had no cross examination of the respondent and posted the case for recording the statement of the petitioner under Section 313 of Cr.P.C. The petitioner did not again appear and therefore the Trial Court issued non-bailable warrant against him, which due to various reasons could not be executed. The records of this case disclose that fullest opportunity was granted to the petitioner to participate in the trial. The Trial Court was therefore justified in passing a judgment based on the available material. 11. The contention of the learned counsel for the petitioner that the presence of the petitioner must have been secured by the Trial Court at the time of recording the statement of the petitioner / accused under Section 313 Cr.P.C and at the time of pronouncing judgment and imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the directions issued by the Hon'ble Apex Court is issued for compliance by all Courts in the State of Karnataka while dealing with cases under Section 138 of N.I. Act. i) Whenever a complaint is henceforth filed alleging an offence punishable under Section 138 of the N.I Act, the complainant shall furnish the residential address of the accused and the address of his/her/its business if he/she/it conducts any business and the address of his/her employer if he/she is employed. ii) The Magistrate shall for the purpose of Section 202 (1) of Cr.P.C., permit evidence of the complainant and his/her/its witnesses to be adduced by affidavit. If the Magistrate himself conducts an enquiry for the purpose of Section 202 (1) of Cr.P.C, it is not compulsory for him/her to examine the witnesses. The Magistrate can examine the documents placed along with the private complaint and record satisfaction regarding the sufficiency of the grounds to proceed under Section 202 (1) of Cr.P.C. iii) If the accused or any of the accused is residing outside the jurisdiction of the Court, then the Magistrate shall first examine the complainant and his/her/its witnesses by way of an affidavit and thereaft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, where, the accused has failed to reply to the notice of demand, then such accused shall disclose the reasons why he desires to examine the person giving evidence. The Magistrate shall then allow such accused to examine the witnesses. xii) If the accused / drawee is a Company, then it shall indicate in definite terms, before commencement of trial, as to who is in-charge and responsible for the conduct of its business along with supporting documents, for the purpose of Section 141 of N.I. Act. If all the Directors of the Company are arrayed as accused, then the Magistrate shall drop the prosecution against the unconcerned Directors and restrict the prosecution to the Company and the concerned Director. xiii) Once the witnesses are examined, the Court shall not record the statement of the accused under Section 313 of Cr.P.C. xiv) All cases shall be tried summarily and the provisions of Sections 262 to 265 of Cr.P.C., as far as may be, shall be applicable to such trials. However, if the Magistrate considers it undesirable to try the case summarily, then appropriate orders shall be passed setting out reasons for doing so. It is only thereafter that the Magistrate shall try the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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