The court upheld the conviction under Section 138 of the N.I. Act, emphasizing the accused's failure to utilize opportunities for defense and the discretion of the magistrate to dispense with the 313 statement.

CAV ORDER

1. Heard the learned counsel for revision petitioner and the learned counsel for the respondent.

2. This revision petition is filed against the conviction and sentence order in C.C.No.16747/2017 on the file of XVIII Addl. C.M.M, Bengaluru for the offence punishable under Section 138 of N.I Act wherein the accused was sentenced to pay fine of Rs.7,60,000/- and in default he shall undergo simple imprisonment for a period of one year and out of compensation Rs.10,000/- has to be defrayed to the State exchequer and also against the order of confirmation passed in Crl.A.No.1748/2018 on the file of LXVIII Addl. City Civil and Sessions Judge, Bengaluru.

3. The factual matrix of case of complainant before the Trial Court that this revision petitioner has availed a hand loan of Rs.6,00,000/- on 06.10.2015 to meet his financial commitments and family necessities and had undertaken to repay the same within six months with interest at 18% per annum. But, the accused has not kept up his promise and he demanded the repayment, he issued a Cheque dated 13.03.2017 for an amount of Rs.6,00,000/- and on presentation of Cheque, the same was dishonored with an endorsement ‘Funds insufficient’. Thereafter, he had issued the legal notice making demand to pay the amount and inspite of service of notice, he did not comply the demand and hence filed the complaint. The Trial Court took the cognizance and secured the accused and he did not plead guilty, but he did not cross examined the PW1 and his 313 statement was dispensed and he was convicted and the same was challenged before the First Appellate Court and the First Appellate Court also having appreciated both oral and documentary evidence placed on record, dismissed the appeal confirming the judgment of the Trial Court, hence the present revision petition is filed before this Court.

4. The main contention of the counsel appearing for revision petitioner before this Court is that the Trial Court committed an error in dispensing the 313 statement and ought to have been secured and recorded the 313 statement and the same ground was also raised before the First Appellate Court that he has not been given reasonable opportunity to defend himself and committed an error in dispensing the 313 statement of the accused, if he has afforded an opportunity to defend himself, the result would be otherwise and counsel prays this Court to remand the matter to follow the procedure.

5. The counsel in support of his argument he relied upon the judgment reported in(2022) 4 KarLJ 467 in case of Mr.G.H.Abdul Kadri V/s Mr.Mohammed Iqbal wherein this Court having considered the material on record, comes to the conclusion that it is not in dispute that petitioner did not appear before the Court and held that no other resource was availed to secure him and record the evidence in his presence and comes to the conclusion that if any reason presence of accused cannot be secured, despite exhausting every mode of service, especially in relation to offences under special laws, including Negotiable Instruments Act and if evidence is to be recorded in absence of accused, law requires to be amended. The legislature must think of bringing suitable amendment to Code of Criminal Procedure or to special law to enable Court to conduct proceedings in the absence of accused. The amendment, perhaps, may deter unscrupulous elements who would resort to avoiding service of summons or execution of warrant against them and set-aside the order directed the parties to appear before the Magistrate for disposal of the matter in a fresh and also given liberty to apply under Section 145 of N.I Act for cross examining the complainant and his witnesses and also given liberty to adduce defence evidence. The counsel relying upon this judgment would contend that an opportunity has to be provided to the petitioner to cross examining the witness and adduce his evidence. Though complainant has represented through counsel, the counsel did not appear befo