ORDER :

Will the failure to question an accused under Section 313 (1) (b) of the Code of Criminal Procedure vitiate the entire proceedings?

2. The revision petitions are directed against the common judgment in Crl.Appeal Nos.685/2010 and 687/2010 of the Court of the Additional Sessions Judge (Adhoc-II), Ernakulam (Appellate Court) confirming the common judgment in S.T Nos.1125/2005 and 1126/2005 of the Court of the Judicial First Class Magistrate-III, Kochi, (Trial Court), whereby the courts have concurrently convicted and sentenced the revision petitioner for the offence under Section 138 of the Negotiable Instruments Act (‘Act’, in short). As the parties are the same and the complaints and appeals were disposed of by common judgments, these revision petitions were consolidated, jointly heard, and are disposed of by this common order. For convenience, the parties are referred to as per their status before the Trial Court.

Relevant Factual Narrative

3. The complaints were filed against the accused, alleging him to have committed the offence under Section 138 of the Act. The complainant’s common case is that, he is a businessman and is conducting an Oil Mill. The accused had borrowed Rs.10/-lakh from him and in the discharge of the said liability had issued Exts.P2 and P6 cheques. On the cheques being presented to the bank for collection, they got dishonoured, by Exts.P3 and P7 memorandums, due to ‘insufficient funds’ in the accused’s bank account. Even though the complainant had issued Exts.P5 and P9 statutory lawyer notices to the accused, the same were returned with an endorsement as ‘unclaimed’. As the accused failed to pay the demanded amount, he committed the offence.

4. The accused on receipt of the summons, entered appearance and pleaded not guilty to the substance of the accusations read over to him. In the trial, the power of attorney holder of the complainant was examined as PW1 and Exts.P1 to P9 were marked in evidence. The records reveal that the learned Magistrate without questioning the accused under Section 313 (1) (b) of the Code of Criminal Procedure (for brevity, ‘Code’), proceeded with further proceedings. The accused did not let in any defence evidence.

Trial Court common judgment

5. The learned Magistrate, by the common judgment, convicted and sentenced the accused for the above offence.

6. Aggrieved by the common judgment, the accused preferred the appeals before the Appellate Court.

Appellate Court common judgment

7. The Appellate Court, after re-appreciating the materials placed on record, by the impugned common judgment confirmed the conviction but modified the substantive sentence imposed by the learned Magistrate.

8. It is questioning the legality, propriety and correctness of the above common judgments these revision petitions are filed.

9. Heard; Sri. T.Madhu, the learned counsel appearing for the revision petitioner and Smt. Seetha S, the learned Public Prosecutor appearing for the second respondent -State.

Arguments

10. Sri.T. Madhu strenuously argued that the courts below have failed to comply with the mandate under Section 313 of the Code, which is an indefeasible right of the accused. Therefore, the entire proceedings and the impugned judgments are vitiated, and the accused is to be acquitted. He relied on the judgments of the Honourable Supreme Court in Janak Yadav and Others v. State of Bihar[1999 KHC 1499], TGN Kumar v. State of Kerala and Others[2011 (1) KHC 142],Keya Mukherjee v. Magma Leasing Limited and Another[2008 KHC 6282] and Sunil v. State of NCT of Delhi [Crl.Appeal No.688/2011], to fortify his contention. He further argued that the power of attorney holder of the complainant (PW1) was ignorant of the alleged transaction, and there is a lack of pleading in the complaints regarding PW1’s knowledge of the transaction, which is imperative in the light of the law laid down by this Court in Razak Mether v. State of Kerala [2023 (1) KHC 377]. He prayed that the revision petitions be allowed, and the