The decision that a criminal trial cannot be held in the absence of an accused individual unless there are compelling reasons to do so and that if incriminating evidence occurs in the testimony of the witness, the accused cannot be exempted from examination under section 313 of the Criminal Procedure Code (Cr.P.C) is upheld by the High Court of Karnataka through the learned bench led by HONOURABLE MR. JUSTICE SREENIVAS HARISH KUMAR in the case of Mr. G.H .Abdul Kadri Versus Mr. Mohammed Iqbal (CRIMINAL REVISION PETITION NO.1323/2019).
FACTS OF THE CASE– G.H.Abdul Kadri, the petitioner, had sought the court to challenge the magistrate court’s and the senior district and sessions judge’s orders. Because the petitioner’s cheques for discharging his liability in connection with the loan said to have been obtained by him from the respondent were dishonoured due to a lack of sufficient funds in his bank account, he faced prosecution for an offence under section 138 of the Negotiable Instruments Act. In all of the cases, the magistrate court found that the petitioner failed to appear in court after being served with a summons. As a result of the Supreme Court’s decision in Indian Bank Association and Others vs Union of India [(2014) 5 SCC 590], the respondent’s affidavits were accepted in all of the cases, the statement of the accused under section 313 CrPC was omitted, and the petitioner was found guilty and sentenced in all of them. A case against the petitioner/accused was made out, according to the sessions Judge in appeal, based on the evidence supplied by the complainant and the papers produced by him. The trial court was justified in convicting the petitioner in all circumstances because it has been held in numerous judgments that the offence under section 138 is a document-based offence and hence there is no need to wait for the accused to come before the court.
The counsel for petitioner, P P Hegde, argued that unless the accused requests an exemption from his personal attendance, criminal proceedings must be heard in his presence. He further stated that Section 143 of the Negotiable Instruments Act provides for a summary trial, and that the method set forth in sections 262 to 265 of the Criminal Procedure Code applies to conducting trials. In this case, the recording of the accused’s plea under section 251 of the CrPC is required. The conviction breaches the principle of due process of law found in Article 21 of the Indian Constitution because the trial court did not follow this procedure. He further said that if the accused does not reply to the Magistrate’s summons, his attendance must be obtained through the issuance of a warrant or proclamation. The Supreme Court’s decision in Indian Bank Association does not say that the trial can be place without the presence of the accused, and there is no idea of placing the accused ex parte, as in civil proceedings. Examining the accused under section 313 CrPC is also required, and it may only be avoided in summons trials if the accused’s personal appearance is exempted. That is not the case in this instance.
The counsel for respondent, Shobhith N Shetty said that accused was served with summons, but because he did not appear in court, the trial court had to proceed in his absence.
Referring to section 273 of the CrPC, the bench stated, “The evidence must be taken in the presence of the accused, but it may be recorded in the absence of the accused if the Cr.P.C. expressly allows it. Evidence may be recorded in the presence of the accused’s pleader if the accused’s personal attendance is waived. Furthermore, “Section 299 is the only provision that allows for the recording of evidence in the absence of the accused. As a result, it is apparent that evidence cannot be recorded in the absence of the accused for any cause other than Section 299.
JUDGEMENT– The court granted G.H.Abdul Kadri’s revision petition and overturned the Addl. Civil Judge’s ex–parte conviction and punishment under section 138 of the Negotiable Instruments Act.
JUDGEMENT REVIEWED BY- ATIVA GOSWAMI