The deliberate absence and failure to avail opportunities for defense by the petitioner amounted to a voluntary decision, justifying the trial court's judgment and sentence. The availability of an effective alternative remedy of filing an appeal under section 148 of the N.I. Act.

JUDGMENT :

Samir J. Dave, J.

1. By way of this petition filed under Articles 226 & 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, the petitioner has prayed to quash and set aside the order dated 05.05.2023 passed by the Court of learned Addl. Chief Metropolitan Magistrate, Court No.34 (N.I.), Ahmedabad in Criminal Case No.1264 of 2014 whereby, the petitioner, original accused, has been convicted for the offence u/s. 138 of the Negotiable Instruments Act, 1881 (for short, “the N.I. Act”) and has been sentenced to undergo simple imprisonment for six months and to pay compensation of Rs.10 Crores along with interest at the rate of 09% per annum to the respondent-original complainant and in default to undergo further imprisonment for a period of three months.

2. The facts in brief are as under;

The petitioner herein and M/s. Rachana Global Excavation Ltd. had availed Cash Credit Loan of Rs.5 Crores and Term Loans of Rs.4.07 Crores and Rs.3.55 Crores from S.M.E. Branch, Mehesana of respondent-State Bank of India. Subsequently, the petitioner herein and said Firm had failed to repay the amount of loans. The petitioner herein, as authorized person of the said Firm, issued Cheque No.00077 dated 15.03.2014 of Rs.10 Crores in favour of the respondent Bank. However, the same got returned on 18.03.2014 with the endorsement of “insufficient funds”. After following due process, the respondent Bank filed complaint u/s. 138 of N.I. Act against the petitioner herein and said Firm before the Metropolitan Magistrate Court, Ahmedabad, which was registered as Criminal Case No.1264 of 2014.

2.1 It is the say of the petitioner that the proceedings before the trial Court were conducted in an ex-parte manner inasmuch as the petitioner was not granted sufficient opportunity to defend himself and hence, the Fundamental Right guaranteed under Article 21 of the Constitution of India stood violated. However, by way of the impugned judgment and order dated 05.05.2023, the trial Court disposed of Criminal Case No.1264 of 2014 by convicting and sentencing the petitioner herein as aforesaid. Hence, this petition.

3. Learned advocate for the petitioner submitted that the trial proceedings before the Court below were conducted in an ex-parte manner. It was pointed out that except section 299 of Cr.P.C., there is no provision for recording of evidence of the complainant in the absence of accused; however, in the present case, the evidence has been recorded in the absence of the petitioner. It was submitted that the petitioner was very much available during the trial and was never declared an absconder and therefore also, the evidence of the complainant could not have been recorded u/s.299 of Cr.P.C.

3.1 It was pointed out by learned advocate for the petitioner that the examination-in-chief filed by the representative of the complainant named Mr. Ganesh Bhanarkar was received by the advocate of the petitioner on 22.02.2018. However, thereafter, the representative of the complainant had changed and the new representative of the complainant named Mr. Pradip Patel filed another examination-in-chief on 13.01.2020. Even said Mr. Pradip Patel had retired on 06.08.2021 and the complainant had sought time to give name of another representative but no such name was provided. Thus, the examination-in-chief filed Mr. Pradip Patel had also become redundant and it was, accordingly, submitted that there was no examination-in-chief of the complainant on record. It was further submitted that the right of the petitioner to crossexamine the complainant was closed on 20.06.2019 and thereafter, the same was not opened.

3.2 Learned advocate for the petitioner submitted that the trial Court has erred in law and on facts in closing the stage of Further Statement (F.S.) in complete breach of the provisions of section 313 of Cr.P.C. It was contended that such closure of the stage of Further Statement would render the trial void inasmuch as the right of F