The omission to record the statement of the accused under Section 242 of the Code was a curable defect and did not cause prejudice to the petitioner.

JUDGMENT :

1. The petitioner herein is accused in a complaint filed by the respondent under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter “the Act”) before the Chief Judicial Magistrate, Ganderbal (“the trial Court”). When the trial Court took up the complaint for final disposal after both sides had adduced their evidence, it was found that at the time of commencing the trial statement of the accused under Section 242 of the Code of Criminal Procedure (“the Code”) had not been recorded. The trial Court brought this fact to the notice of the learned counsel appearing for the parties. Learned counsel for the petitioner submitted before the trial Court that there was no need to record his statement under Section 242 of the Code nor the same could be recorded when the trial had already reached its final stage. He further submitted that failure to record statement of the accused under Section 242 of the Code is defect, which is fatal to the complaint and the trial court has no option but to dismiss the complaint. Learned counsel for the petitioner, therefore, urged the trial Court to acquit the petitioner. Per contra, learned counsel appearing for the respondent submitted that omission pointed out could not be made a ground for dismissal of the complaint and acquittal of the petitioner otherwise than on merits. The trial Court allowed the learned counsel for the parties to debate the issue.

2. The trial Court after hearing the rival contentions came to the conclusion that failure to record statement of the accused under Section 242 of the Code was a curable defect and that the statement of the accused could still be recorded before the matter is taken up for final consideration, accordingly, fixed the complaint for recording statement of the accused i.e. petitioner herein.

3. Feeling dissatisfied and aggrieved by the order of the trial Court dated 10.11.2018, the petitioner filed a revision petition before the Principal Sessions Judge, Ganderbal (hereinafter “the Revisional Court”). The Revisional court concurred with the view taken by the trial Court and vide its order dated 26.12.2018 dismissed the revision petition and, thus, paving the way for the trial Court to proceed to record the statement of the petitioner under Section 242 of Code and conduct further proceedings as per the procedure prescribed therefor. It is this order of the Revisional Court as well as order dated 10.11.2018 passed by the trial Court, which are assailed by the petitioner by invoking the inherent powers of this Court vested under Section 561-A of the Code.

4. Heard learned counsel for the respondent and perused the record.

5. Of late there has been no representation on behalf of the petitioner. On 28.08.2019, 15.01.2020 and 16.12.2020 there was no representation on behalf of the petitioner. As a matter of fact, in order dated 16.12.2020, this Court directed listing of the case “for dismissal” on 29.03.2021. It is because of this order, Mr. Wani Manzoor, Advocate caused appearance for the petitioner and made a statement that he was recently engaged and, therefore, matter be adjourned. On his request, the matter was adjourned and listed today for consideration. Today, when the case was called twice before and after break, nobody turned up to represent the petitioner. Be that as it is, the disposal of the revision petition raising a short point cannot be left at the mercy of the petitioner.

6. The issues involved for adjudication in this revision petition are:-

(i) Whether non-recording of statement of accused under Section 242 of the Code is fatal to the case, even if the accused seeking benefit of such omission has not suffered any prejudice on such account? and;

(ii) Whether statement of the accused under Section 242 of the Code can be recorded even after the evidence in the complaint has been led and the matter is fixed for final consideration?

7. As is provided under Section 143 of the Act, complaint under Section 138 may be tried summarily n