Ex – Parte Proceedings Against Accused In Cheque Cases

A filed a cheque case complaint. The Magistrate issued summons to the accused. As the accused did not appear, a warrant was issued. Months and years passed by, but the accused did neither appear nor was produced before the Magistrate. The question is can the Magistrate proceed ex- parte in this situation?

In G.H.Abdul Kadri vs Mohammed Iqbal, the Magistrate accepted the affidavit filed by the complainant, dispensed with the statement of the accused under section 313 Cr.P.C and then proceeded to convict and sentence the accused. The Sessions Judge dismissed the appeal against the Magistrate order filed by the accused and observed that the offence under section 138 CrPC is a document based offence and therefore there is no need for waiting for the accused to appear before the court. Both these Courts justified this course of action by placing reliance on the case of Indian Bank Association and Others vs Union of India [(2014) 5 SCC 590].

The Karnataka High Court, while considering revision petition filed by the accused, noted that the judgment in Indian Bank Association does not state that the trial can be held in the absence of the accused. “It is trite to observe here that in the Code of Criminal Procedure, there is no provision for keeping an accused ex parte similar to one found in Code of Civil Procedure which provides for placing a defendant ex parte if there is due service of summons or notice on him. The reason may perhaps be due to requirement that trial is to be held in the presence of the accused.”

The judgment also notes a division bench judgment of the High Court M/S. MAC CHARLES (I) LTD., vs. CHANDRASHEKAR AND AN in ILR 2005 Kar. 3648, in which it was held thus: “In a criminal trial where presence of the accused is a must and where presence of accused cannot be secured in the manner known to law within a reasonable time, case against such accused will have to be split up in the manner as provided in Chapter IV of the Karnataka Criminal Rules of Practice and its application insofar as Negotiable Instruments Act is concerned also came to be examined and has held that the same procedure will be the procedure applicable even in cases instituted for the offence alleged under Section 138 NI Act.”

The court further noticed that the only provision that provides for recording of evidence in the absence of the accused is section 299 CrPC. The court further noted that the legislature must think of bringing suitable amendment to Code of Criminal Procedure or to the special law to enable the court to conduct the proceedings in the absence of the accused. “If for any reason the presence of the 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 the absence of the accused, law requires to be amended. The legislature must think of bringing suitable amendment to Code of Criminal Procedure or to the special law to enable the court to conduct the proceedings in the absence of the accused. The amendment, perhaps, may deter unscrupulous elements who would resort to avoiding service of summons or execution of warrant against them.”, it said. A Bangalore District Court followed this judgment recently and set aside an ex-parte conviction of a cheque case accused.

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