2005 Supreme(Kar) 391

IN THE HIGH COURT OF KARNATAKA AT BANGALORE
(DIVISION BENCH)
B. PADMARAJ AND C.R. KUMARASWAMY, JJ.
MAC CHARLES (INDIA) LIMITED, BANGALORE - Petitioner.
v
CHANDRASHEKAR AND ANOTHER - Respondents.
Reference in Criminal Petition No. 778 of 2005
30th June, 2005

Headnote:Absence of accused

       CRIMINAL JURISPRUDENCE

       Absence of accused - If plea of accused has to be recorded - If evidence has to be recorded - If substantive sentence or fine has to be imposed - Presence of accused is a must.

       [B. Padmaraj and C. R. Kumaraswamy, JJ]: 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 expert procedure as prescribed under the civil law is unknown to criminal law.

       Cases Referred: 2004(4) KCCR 2216.

       Failure to secure accused

       NEGOTIABLE INSTRUMENT ACT, 1881 - Section 144 - Failure to secure accused - Failure to secure accused even by coercive methods - Provisions of Chapter IV of Karnataka Criminal Rules of Practice should be resorted to - Case against absconding accused be splitted and case against the rest be proceeded with.

       [B. Padmaraj and C. R. Kumaraswamy, JJ]: In a criminal trial where the presence of the accused is a must and where the presence of the accused could not be secured in the manner know 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 ill accordance with law. The same will be the procedure applicable even in cases instituted for tile alleged offences under Section 138 of the Negotiable Instruments Act.

       Absence of accused

       CRIMINAL PROCEDURE CODE, 1973

       Section 65 - Absence of accused - Summons as under of the Code - Court declaring it to be sufficient service - Accused not turning up even after that - Trial cannot be held in the absence of accused or when personal appearance is dispensed with, his counsel - Exception to, as recognised under the provisions of the Code.

       [B. Padmaraj & C. R. Kumaraswamy, JJ]: 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.

       Cases Referred: 2004(4) KCCR 2216.

       Substituted service in Criminal trials

       CRIMINAL PROCEDURE CODE, 1973

       Section 65 - Substituted service in Criminal trials - Service of summons by affixing one of duplicate of summons to some conspicuous part of accused s house - Is recognised in law even in Criminal trials - When permitted.

       [B. Padmaraj & C. R. Kumaraswamy, JJ]: 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.

       Procedure under

       CRIMINAL PROCEDURE CODE, 1973

       Section 299 - Procedure under - Can be resorted to only for invocation of provisions of Chapter IV of the Karnataka Criminal Rules of Practice - Not for the purpose of holding trial when the accused is absconding.

       [B. Padmaraj & C. R. Kumaraswamy, JJ]: 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.

       Procedure when accused is absconding

       CRIMINAL PROCEDURE CODE, 1973

       Procedure when accused is absconding - Even by coercive methods accused could not be secured - Provisions of Chapter IV, Karnataka Criminal Rules of practice be invoked and Procedure under Section 299, Criminal Procedure Code, 1973 be followed. See Criminal Procedure Code, 1973 - Section 299, Procedure under and Negotiable Instrument Act, 1881 - Section 138 - Trial procedure.

       Case Referred: 2004(4) KCCR 2216 .

       Trial Procedure

       DISHONOUR OF CHEQUE

       Trial Procedure - Accused absconding - Could not be secured even by coercive methods - Provisions of Chapter IV, Karnataka Criminal Rules of practice be invoked and Procedure under Section 299 be followed - But, absconding accused cannot be proceeded against in his absence if his plea has to be recorded or if substantive sentence or fine has to be imposed if found guilty.

       [B. Padmaraj & C. R. Kumaraswamy, JJ]: 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 III 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.

       Cases Referred: 2004(4) KCCR 2216.

       Invocation of 768

       KARNATAKA CRIMINAL RULES OF PRACTICE, 1968

       Chapter-IV -Invocation of - Procedure as under Section 299, Criminal Procedure Code, 1973 can be resorted to.

       [B. Padmaraj & C. R. Kumaraswamy, JJ]: 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.

       Cases Referred: 2004(4) KCCR 2216. 768

       CRIMINAL JURISPRUDENCE - Absence of accused - Absence of accused - If plea of accused has to be recorded - If evidence has to be recorded - If substantive sentence or fine has to be imposed - Presence of accused is a must. [B. Padmaraj and C. R. Kumaraswamy, JJ]: 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 expert procedure as prescribed under the civil law is unknown to criminal law.

       Cases Referred: 2004(4) KCCR 2216.

       CRIMINAL PROCEDURE CODE, 1973 - Absence of accused - Section 65 - Absence of accused - Summons as under of the Code - Court declaring it to be sufficient service - Accused not turning up even after that - Trial cannot be held in the absence of accused or when personal appearance is dispensed with, his counsel - Exception to, as recognised under the provisions of the Code. [B. Padmaraj & C. R. Kumaraswamy, JJ]: 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.

       Cases Referred: 2004(4) KCCR 2216.

       Negotiable Instrument Act, 1881 - Absence of accused - Section 65 - Absence of accused - Summons as under Section 65 of the Code - Court declaring it to be sufficient service - Accused not turning up even after that - Trial cannot be held in the absence of accused or when personal appearance is dispensed with, his counsel - Accused has to be secured by coercive methods. [B. Padmaraj and C. R. Kumaraswamy, JJ]: 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.

       Cases Referred: 2004(4) KCCR 2216.

       Negotiable Instrument Act, 1881 - Failure to secure accused - Section 144 - Failure to secure accused - Failure to secure accused even by coercive methods - Provisions of Chapter IV of Karnataka Criminal Rules of Practice should be resorted to - Case against absconding accused be splitted and case against the rest be proceeded with. [B. Padmaraj and C. R. Kumaraswamy, JJ]: In a criminal trial where the presence of the accused is a must and where the presence of the accused could not be secured in the manner know 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 tile alleged offences under Section 138 of the Negotiable Instruments Act.

       Negotiable Instrument Act, 1881 - Substituted service - Substituted service - Service of summons by affixing one of duplicate of summons to some conspicuous part of accused s house as under Section 65 Criminal Procedure Code, 1973 is permitted. [B.Padmaraj & C.R. Kumaraswamy, JJ]: 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.

       Negotiable Instrument Act, 1881 - Trial Procedure - Section 138 -Accused absconding - Trial Procedure - Can his affidavit be taken into consideration and proceeded against? No. [B. Padmaraj and C. R. Kumaraswamy, JJ]: 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.

       Negotiable Instrument Act, 1881 -Trial of offence under IPC -Section 138 -Trial of offence under IPC -Cheque was returned for alteration in date and difference in signature -If such alterations are intentionally made and if the case is in the preliminary stage and charges are yet to be framed, it is always open for the Court to frame charge for an offence under Section 420, IPC. [Mohan Shanthana Goudar, J]: The cheque may also come within the purview of Section 420 of IPC in these cases as he would be committing the offence of cheating, if he intentionally issued the cheques in question. As the criminal cases are still in the preliminary stage and charges are yet to be framed, it is always open for the Court below to frame charge for the offence under Section 420 of IPC, if the material on record at that stage of the proceedings disclose such offence. It is to be noted that the first information or complaint is not an encyclopedia to contain all the particulars and the sections under which the offences are committed. Mere omission to mention any or more penal Sections in FIR would not ipso facto deter the concerned Court to proceed further for the concerned offences. It is always open to the Court to frame charges for different offences, other than and in addition to the offences which are mentioned in the FIR, if ultimately the material on investigation discloses such offences. Thus the criminal proceedings cannot be scuttled, on that technical score, at this initial stage. If the process is stopped at this stage, it may lead to travesty of justice. The substance of the allegations found in the first information or complaint is relevant and not mere format or the sections, for the purposes of proceeding further. In view of the same, there is no bar for the Court below to proceed further as the complaint also discloses the offence punishable under Section, 420 of Indian Penal Code along with the offence under Section 138 of the Negotiable Instruments Act.

       Cases Referred: 1999 AIR SCW 881. Distinguished: 2005 SCR (Cri) 567; AIR 1999 Supreme Court 1952; 1998(4) ALL MR 287; 2002 (4) Crimes 289; 2001 (2) Crimes 273; 1998 Company Cases page-549- Vol. 94; 1993 Company Cases Page -797 Vol. 78; 1999 Company Cases Page -13- Vol. 97 Relied: AIR 2002 Supreme Court 182.

       KARNATAKA CRIMINAL RULES OF PRACTICE, 1968 - Chapter-IV - Invocation of 768 - Chapter-IV -Invocation of - Procedure as under Section 299, Criminal Procedure Code, 1973 can be resorted to. [B. Padmaraj & C. R. Kumaraswamy, JJ]: 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.

       Cases Referred: 2004(4) KCCR 2216.

       Absence of accused

       NEGOTIABLE INSTRUMENT ACT, 1881 - Section 65 - Absence of accused - Summons as under Section 65 of the Code - Court declaring it to be sufficient service - Accused not turning up even after that - Trial cannot be held in the absence of accused or when personal appearance is dispensed with, his counsel - Accused has to be secured by coercive methods.

       [B. Padmaraj and C. R. Kumaraswamy, JJ]: 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.

       Cases Referred: 2004(4) KCCR 2216.

       Trial Procedure

       NEGOTIABLE INSTRUMENT ACT, 1881 - Section 138 -Accused absconding - Trial Procedure - Can his affidavit be taken into consideration and proceeded against? No.

       [B. Padmaraj and C. R. Kumaraswamy, JJ]: 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.

       Procedure to be followed when the accused is absconding

       NEGOTIABLE INSTRUMENT ACT, 1881 - Section 138 - Procedure to be followed when the accused is absconding - Chapter IV of Karnataka Criminal Rules Of Practice be invoked - Procedure under Section 299 be followed.

       [B. Padmaraj and C. R. Kumaraswamy, JJ]:In a criminal trial where the presence of the accused is a must and where the presence of the accused could not be secured in the manner know 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 ill accordance with law. The same will be the procedure applicable even in cases instituted for tile alleged offences under Section 138 of the Negotiable Instruments Act.

       Trial of dishonour of cheque case

       NEGOTIABLE INSTRUMENT ACT, 1881 - Section 143 - Trial of dishonour of cheque case - Is a Criminal Procedure under Criminal Procedure Code, 1973 and not under Civil Procedure Code, 1908 that has to be followed.

       [B. Padmaraj and C. R. Kumaraswamy, JJ]: 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 III 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.