2005(2) Bankmann 239
KARNATAKA HIGH COURT
B. Padmaraj and C.R.
Kumaraswamy, JJ.
M/s Mac Charles (I) Ltd. — Petitioner
versus
Chandrashekar and
another — Respondents
Ref. in Cri Petn. No. 778 of 2005
Decided on 30.6.2005.

IMPORTANT POINT
Criminal Trial whether it be for offence under IPC or under the Negotiable Instruments Act cannot be held in absence of accused and as such no ex parte decision regarding guilt or otherwise of accused can be recorded in absence of accused.

Headnote:Criminal Procedure Code, 1973—Sections 65 r/w Section 144 of Negotiable Instruments Act, Section 273—Karnataka Criminal Rules of Practice—Chapter IV—Prosecution for offence of dishonour of cheque—Cheque was issued by accused company No. 1 of which accused 2 to 10 were the directors and accused 11 and 12 were employees who were signatory of cheque—Accused 11 and 12 appeared before Court pursuant to summoning order but presence of accused 2 to 10 could not be secured—Trial Court split up the case against accused 1 to 10 from accused No. 11 and 12—Revision by accused 11 and 12—Questions referred to by Single Judge—Where for a considerable period the accused could not be apprehended despite efforts, whether case against him could be separated in terms of Rule 2 of Chapter IV of Karnataka Criminal Rules of Practice? Yes—Whether substituted service was permissible in Criminal Case? Yes—Whether accused could be proceeded ex parte and decision could be given ex parte regarding his guilt? No.

       Held: For the sake of convenience, we shall deal with Question Nos. 1 and 2 together as they are inter-related. 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 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 recognized under law even in criminal trials. Hence the answer to Question No. 2 shall be in the affirmative. Similarly Section 144 of the Negotiable Instruments Act recognizes the alternate mode of service of summons to the accused either by speed post or through courier service. In this context, a reference may be made to the provisions contained under Section 144 of the Negotiable Instruments Act which prescribes that notwithstanding anything contained in the Code of Criminal Procedure, and for the purposes of this chapter, a Magistrate issuing a summons to an accused or a witness may direct a copy of summons to be served at the place where such accused or witness ordinarily resides or carries on business or personally works for gain, by speed post or by such courier services as are approved by a Court of Session and Sub-section (2) of Section 144 says where an acknow-ledgment purporting to be signed by the accused or the witness or an endorsement purported to be made by any person authorized 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 hold or declared to be sufficient as in the case of Section 65 of Cr.P.C. It is to be concluded therefore that substituted mode of service to an accused is recognized in a criminal trial whether it be an offence under the IPC or under the Negotiable Instruments Act. (Paras 8 and 9)

       Held further: In this context, a reference may be made to Section 273 of Cr.P.C. which prescribes that except as otherwise expressly provided, all evidence taken in the course of the trial or other proceedings shall be taken in the presence of the accused, or, when his personal attendance is dispensed with in the presence of his pleader. That means the evidence in a criminal trial cannot be taken in the absence of an accused except as otherwise provided under law. In other words, a criminal trial cannot be held in the absence of an accused or his counsel when the personal presence of the accused is dispensed with in the manner as recognized under the provisions of Cr.P.C. The only exception to this procedure appears to be the one prescribed under Section 126 of Cr.P.C. But 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 or under Section 144 of the Negotiable Instruments Act, 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. 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. Therefore 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 known 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 the alleged offences under Section 138 of the Negotiable Instruments Act. Indisputably the 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 in the absence of an accused.(Para 9)

       Therefore having regard to the nature of procedure to be undergone in a criminal trial, the presence of the accused is a must. However one exception can be made in the case of an accused which is a company which cannot be convicted with a substantive sentence of imprisonment and could be sentenced with fine only in case if it is found guilty of the offence under Section 138 of the Negotiable Instruments Act. But normally a criminal trial whether it be for the offence under the IPC or under the Negotiable Instruments Act, cannot be held in the absence of an accused as the evidence at the trial has to be taken either in his presence or in the presence of his counsel in case if the personal presence of the accused is dispensed with in accordance with law. It is apparent from Section 4 that the provisions of the Cr.P.C. are applicable where an offence under the Penal Code or under any other law is being investigated, inquired into, tried or otherwise dealt with. Section 273 of Cr.P.C. makes it obligatory that the evidence for the prosecution and defence should be taken in the presence of the accused. The Rule enacted in this Section makes it imperative that all evidence in an inquiry or trial shall be taken in the presence of the accused. That being so, no ex parte decision regarding the guilt or otherwise of the accused can be recorded in the absence of the accused. This being the clear position of law in case of criminal trial, it is to be held that 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 ex parte procedure as prescribed under the civil law is unknown to criminal law. In this view of the matter, our answer to Question No. 3 must necessarily be in the negative. (Para 9)

       Result: Reference answered accordingly.