Provision of delivering judgment in the absence of accused:
This article written by Lokendra Rana, Advocate founder of Rana & Rana Law Firm.
Introduction:
Negotiable Instruments Act 1881 regulates the different types of negotiable instruments like Promissory notes, Bills of Exchange and Cheques. According to Section 13 of the Act, negotiable instrument means ‘a Promissory Note, Bills of Exchange or Cheque payable either to order or to bearer’. Thus, Negotiable Instrument in simple terms means any written document which is transferable on delivery. Section 138 of the act talks about punishment for dishonoring of Cheques. When the Cheque is dishonored for insufficiency of funds or for any of the prescribed reasons, the one who is at defaulter can be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the Cheque, or both. This is also a non-cognizable offence.
Section 138 of Negotiable Instruments Act 1881 states:
"Dishonor of Cheque for insufficiency, etc., of funds in the account:—Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for
(a term which may be extended to two years) or with fine which may extend to twice the amount of the Cheque, or with both:History of Curative Petition and Its Scope In India and in Reference To Nirbhaya Case and Ayodhya Case.
Provided that nothing contained in this section shall apply unless:
⇛ 1- the Cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
⇛ 2-the payee or the holder in due course of the Cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice; in writing, to the drawer of the Cheque,
[within thirty days] of the receipt of information by him from the bank regarding the return of the Cheque as unpaid; and⇛ The drawer of such Cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the Cheque, within fifteen days of the receipt of the said notice."
Thus from the above section it is inferred that dishonoring of Cheques due to insufficient fund in the account or any other reason is a punishable offence.Procedure: Procedure that is followed in matters with regard to Section 138 of the Act is as follows:
⇛ i-A legal notice is to be issued to the drawer within 15 days of dishonor of Cheque by registered post with all relevant facts. The drawer is given a time of 15 days to make the payment, if the payment is made then the matter is served and the issue is settled. On the other hand if the payment is not made then the complainant is to file a criminal case process under Section 138 of the Act, against the drawer within 30 days from the date of expiry of 15 days specified the notice, with the concerned magistrate court within the jurisdiction.
⇛ ii-The complainant or his authorized agent should appear in the witness box and provide relevant details for filing the case. If the court is satisfied and finds substance in the complainant, then summons will be issued to the accused to appear before the Court.
⇛ iii-If after being served with the summons the accused abstains himself from appearing, then the court may issue a bailable warrant. Even after this if the drawer does not appear a non-bailable warrant may be issued.
⇛ iv-On appearance of the drawer/accused, he may furnish a bail bond to ensure his appearance during trial. After which the plea of accused is recorded. In case he pleads guilty, the court will post the matter for punishment. If the accused, denies the charges then he will be served with the copy of complaint.
⇛ v-The Complainant may present his evidence by way of affidavit and produce all documents including the original in support of his complaint. The complainant will be cross examined by the accused or his counsel.
⇛ vi-The accused will be given an opportunity to lead his evidence. The accused will also be afforded an opportunity to submit his documents in support of his case, as well as witnesses in his support. Accused and his witnesses will be cross examined by the complainant.
⇛ vii-The last stage of the proceeding is that of the arguments after which the court will pass a judgment. If the accused is acquitted then the matter ends, but the complainant can go on further appeal in the High Court, similarly if the accused is convicted he can file an appeal in the Sessions Court.
It must be noted that the offence under Section 138 of the Act, has been made compoundable.On 8 June, 2020 the Ministry of Finance proposed decriminalizing various minor offence
“for improving business sentiment and unclogging court processes”,which also include Section 138 of Negotiable Instruments Act, 1881.
Can a Judgement/decision be passed ex-parte under Section 138?
The trials cannot be held in the absence of the accused as per the law and no decision can be passed, our Legal Advisory Team resaerch on the above said matter and find out some judgment, which will be very helpful, go through with below mention judgments.
⇛ Mac Charles (I) Ltd. vs Chandrashekar And Anr. 2006 (1) ALD Cri 44, III (2006) BC 143, 2005 CriLJ 3700, ILR 2005 KAR 3648, 2006 (2) KarLJ 570
⇛ One of the questions before the High Court in this case was: Whether an accused can be proceeded ex-party and a decision may be given ex-party regarding his guilt or otherwise of the matter?
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⇛ The Court answered:
“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-party 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 trials, 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-party 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.”
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⇛ Badrinath Ladda vs. D. Vijaya : (11.10.2012 - KARHC): MANU/KA/1940/2012
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.
⇛ Mohsin Shariff vs. Blitz Hotels and Resorts Private Limited: (08.04.2019 - KARHC) : MANU/KA/2814/2019
"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."
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Conclusion:
The offense committed under Section 138 of the Negotiable Instruments Act is a substantive offence under which the accused may be awarded imprisonment when found guilty. Furthermore as per Section 143 of the Negotiable Instruments Act the trial for these proceedings is carried out under Section 200 of Cr.P.C. similar to any other criminal trial. Hence such trials cannot be held in the absence of the accused and no decision can be passed. From submitting evidences to countering adduced affidavits, the presence of accused is mandatory and any decision passed ex-party under criminal law is not valid including decision under Section 138 of the Negotiable Instruments Act.
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