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2009(1) Crimes 629 (Ker.)
KERALA HIGH COURT
R. Basant, J.
Jain Babu —Petitioner
versus
Joseph —Respondent
Crl. Misc. Case No. 1977 of 2007
Decided on 4.9.2008
(ii) Negotiable Instruments Act, 1881—Section 138—Criminal Procedure Code, 1973—Section 205—Personal attendance of accused executed—Plea of accused can be recorded through his counsel. (Para 20)
(iii) Negotiable Instruments Act, 1881—Section 138—Criminal Procedure Code, 1973—Section 205, 313(1) —Personal attendance of accused exempted—His examination under Section 313(1)(b) can be dispensed with under proviso to Section 313(1) of the Code. (Para 23)
(iv) Negotiable Instruments Act, 1881—Section 138—Criminal Procedure Code, 1973—Section 353(6), (7) —Pronouncement of judgment in absence of accused—Does not vitiate trial—Sentence one of substantive imprisonment—Accused can certainly be directed to personally appear for receiving the judgment. (Para 27)
(v) Negotiable Instruments Act, 1881—Section 138—Criminal Procedure Code, 1973—Sections 205, 389 (3) —Accused exempted under Section 205 Criminal Procedure Code—Judgment of conviction pronounced—Court must direct the accused to appear before court on a specified date—Such date to be fixed allowing accused reasonable time to prefer appeal in meantime. (Para 30)
(vi) Negotiable Instruments Act, 1881—Section 138—Prosecution—Ordinary bailable warrant under section 88 Criminal Procedure Code must be issued at the first instance—On compelling need was Magistrate can resort to deviations showing reasons therefor. (Para 37)
(vii) Negotiable Instruments Act, 1881—Section 138—Criminal Procedure Code, 1973—Section 482—Guidelines issued by the High Court— Procedure not followed by the Trial Court—Aggrieved person may approach to High Court under Section 482 Criminal Procedure Code. (Para 37)
(viii) Negotiable Instruments Act, 1881—Section 138—Criminal Procedure Code, 1973—Section 256—Mere absence of complainant before the court—Does not entail consequences under Section 256 Cr.P.C.—Presence of accused to be insisted only if the progress of the case demands such appearance. (Para 38)
(ix) Criminal Procedure Code, 1973—Section 482—User friendly procedure in trial of offenders having no moral turpitude, who are guilty of technical offences—Not followed by the trial court would amount to dereliction of duty. (Para 39)
Result: Cr. M.C. accordingly allowed.
JUDGMENT
R. Basant, J.—Can there be a criminal offence involving no moral turpitude at all? Is the offence under Section 138 of the Negotiable Instruments Act one such offence? Is a person accused of an offence, in which moral contumaciousness is not significant, entitled to a more humane and less onerous trial procedure? Should an accused facing indictment under Section 138 of the Negotiable Instruments Act be compelled to endure the tedium and trauma of a regular elaborate criminal trial? Is it possible for the system to simplify procedure and achieve the legislative goals without inflicting such unnecessary inconvenience and difficulties on the indictee atleast in such less serious crimes? These questions are thrown up in this case where the petitioner, a woman, laments that she, who faces indictment under Section 138 of the Negotiable Instruments Act, is entitled to a fairer deal from the system.
2. The petitioner, a woman in her late forties, a housewife who has her husband employed abroad having two children - a son and a daughter studying for the engineering course and the B.A.M.S course, and a permanent resident of Alappuzha has received summons from the Judicial Magistrate of the First Class, Hosdurg wherein she has been called upon to appear in person to face the indictment. She submits that she is innocent. The cheque has been misused. The petitioner complains that she is unable to proceed all the way to that distant court. She prays that she may be exempted from personal appearance and her counsel may be permitted to represent her and conduct the case. The counsel on her behalf submits that there is urgent need of general directions under Sections 482 or 483 of the Code of Criminal Procedure to save the petitioner as well as others similarly placed, from their predicament of being compelled to appear in person before court, getting enlarged on bail, executing bonds with sureties, personal appearance on all dates of posting, appearance for examination under Section 313 Cr.P.C. and ultimately to receive judgment. The counsel contends that it is not necessary for a humane and user friendly system to resort to such cumbersome procedure. It is prayed that directions may be issued which will help the petitioner as well as many others similarly placed facing identical predicament to save them of the unnecessary pain inflicted on them by such mindless injustice - of beaten track procedural hassles, trammels and trappings.
3. The contentions raised did appear to me to be impressive. Detailed arguments were heard in identical cases also in which the same question had arisen for consideration. Adv. Sri. G. Priyadarsan Thampi appearing for the petitioner has advanced this contention with conviction. Sri. N. Ratheesh who appears in a similar matter W.P.C 20721/2007 has also advanced his arguments. Perceiving the need for assistance of an amicus curiae Sri. S. Rajeev, a promising young counsel was requested to assist the Court. Detailed arguments have been advanced. All counsel pray that directions may be issued which shall bind all courts so that procedure in the trial of 138 (and similar) cases in the State can be simplified and indictees can be saved of the unnecessary and avoidable trauma and tedium.
4. First of all the learned counsel have drawn my attention to various precedents having a bearing on the question. I shall advert to them specifically later if and when necessary.
But it must now be stated that my attention has been drawn to the following binding precedents.
1. M/s. Bhaskar Industries Ltd. v.
M/s. Bhiwani Denim and Apparels Ltd. and Others.1
2. Helen Rubber Industries & Others v. State of Kerala & Others.2
3. Dinesan v. Baby.3
4. Mathew v. State of Kerala.4
5. Bhanujan v. Jayabhanu.5
6. Raman Nair v. State of Kerala.6
7. Alice George vs. Deputy Superintendent of Police.7
8. Sasikumar v. State of Kerala.8
5. The learned counsel submit that there is urgent necessity to clarify that the very fact
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