Procedural irregularities in recording the accused's statement and the complainant's evidence can vitiate the proceedings and lead to the setting aside of judgments.

JUDGMENT

B.M. Shyam Prasad, J. - Heard the learned counsel for the petitioner. The respondent though served, has remained absent. The impugned judgment dated 2nd December 2017 in Criminal Case No.637/2017 (old Criminal Case No.1067/2014) on the file of the V-JMFC, Belagavi, and the judgment dated 23rd April 2018 in Criminal Appeal No.338/2017 on the file of the XI Additional District & Sessions Judge, Belagavi, are perused.

2. The petitioner has been convicted for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the Act') and sentenced to pay compensation of Rs.77,000/- with default simple imprisonment of six months. The learned counsel for the petitioner submits that the proceedings before the learned Magistrate is vitiated because the petitioner - accused's plea is recorded simultaneously with recording the petitioner's statement under Section 313 of the Code of Criminal Procedure (for short, 'Cr.P.C.). On the same day when the petitioner's plea and his statement under Section 313 of Cr.P.C are recorded, the respondent's sworn statement that is recorded earlier is treated as evidence. The petitioner, when his statement is recorded under Section 313 of Cr.P.C, had neither cross-examined the respondent nor led in any evidence. The relevant portion of the order reads as follows:

"Case advanced. Accused present.

The substance of accusation stated to the accused. Accused pleaded not guilty and submitted to he has defence to make.

Considering the decision of Hon'ble Supreme Court reported in ' Indian Bank Association V/s Union of India and others, (2014) 5 SCC 590 (decided on 21.04.2014)'.

The sworn statement of the complainant is treated as the evidence of complainant.

Statement of accused is recorded under Section 313 of Cr.P.C. Accused has chosen to lead his evidence.

Hence for defence evidence.

Call on 19.07.2017."

3. The petitioner did not have any opportunity to cross-examine the complainant-respondent when his statement under Section 313 of Cr.P.C. was recorded, and he is later permitted to cross-examine the respondent on an application.

4. The learned counsel, while asserting that the procedure adopted by the learned Magistrate is contrary to the directions issued by the Hon'ble Supreme Court in 'Indian Bank Association V/s Union of India and others, canvasses that there is a procedural irregularity inasmuch as the statement of the petitioner under Section 313 of Cr.P.C. is recorded much before the completion of the respondent's evidence. The statement under Section 313 of Cr.P.C. should have been recorded after the respondent's evidence was completed including his cross-examination. This irregularity renders the entire proceeding from the stage of recording the accused's plea vitiated. Therefore, neither of the impugned judgments can be sustained. The learned counsel relies upon a decision of this Court in Crl.R.P. No.100241/2018 decided on 13th March 2019 in support of his submission that the impugned judgments will have to be set aside and the case remanded for retrial from the stage of cross-examination of the respondent.

5. On perusal of the records, it is seen the petitioner's statement was recorded under Section 313 of Cr.P.C. when the respondent's evidence was not completed, and that the procedure adopted by the learned Magistrate is not in consonance with the directions of the Hon'ble Supreme Court reported in 'Indian Bank Association V/s Union of India and others supra. There is force in the submission and the request made by the learned Counsel for the petitioner. As such, both will have to be accepted.

6. Therefore, the impugned judgment dated 2nd December 2017 in Criminal Case No.637/2017 (old Criminal Case No.1067/2014) on the file of the V-JMFC, Belagavi, and the judgment dated 23rd April 2018 in Criminal Appeal No.338/2017 on the file of the XI Additional District & Sessions Judge, Belagavi are set aside and the case is restored to the Board of V-JMFC, Belagavi, f