1. The petitioner approached this Court calling in question the orders passed by the 66th Addl. City Civil and Sessions Judge, Bengaluru in Crl. R.P. No. 674/14 in setting-aside the orders passed by the 12th Addl. ACMM, Bengaluru under Section 259 Cr.P.C. dated 31.05.2017 in C.C. No. 32891/14 and directing the learned Magistrate to convert the case in to a warrant case, though the proceedings are under Section 138 of the Negotiable Instruments Act (for short ‘the Act’).

2. Though Section 259 of Cr.P.C. is not strictly applicable but Section 143 of the Act empowers the Magistrate even to try the offence under Section 138 of the Act as if a warrant case, if any case is made out under Section 143 of the Act.

3. Learned counsel for the petitioner has relied upon a decision of this court in Criminal Petition No. 8943/2010 where in this court has observed at page 74 that:

“Section 143 has a mandatory effect though the provision opens with a non-obstante clause. This means that provisions of Section 259 of Cr.P.C. regarding a warrant trial shall have no application in respect of an offence under Section 138 of the NI Act. There is no room for doubt that for the purposes of trial of an offence falling under the Act, the provisions of a summary trial under the Code would be applicable and a summary trial cannot be converted into a trial for a warrant case. The evidence adduced by the parties could be by way of affidavits under Section 145 of the Act.”

4. In another reported ruling of this Court in M/s Leo Granex vs. M/s Pavillion Granites and Others, ILR 2009 Kar. 4062, this Court has very lengthily discussed with regard to the application of Section 259 and also Section 143 of the Act. At Head Note (b) the Court has expressed as under:

“Section 259 - Power of Court to convert summons cases into warrant cases - Application - Order of the Trial Court converting a summons case into a warrant case while dealing with an offence under Section 138 of the Negotiable Instruments Act - Revision against - HELD, If the provision of Section 259, Cr.P.C. is applied, then the power conferred on the Magistrate is exercisable “during the course of Trial” whereas by virtue of the second proviso to Section 143 of the Negotiable Instruments Act, power conferred is exercisable by the Magistrate even “at the commencement of trial.” Further Held, From the gamut of the provisions of Cr.P.C. and of Section 143 of the Act, it is clear that, the Magistrate has been give a free hand to decide which procedure has to be applied and such decision shall depend on the nature of charge in a case relating to offences under Indian Penal Code and the nature of charge as also dispute between the parties in an action under Section 138 of the N.I. Act. - In a case relating to prosecution under Section 138 of the Act, particularly when the stakes are high and the accused intends to establish that the dispute is of civil nature or that there was no existing debt or legal liability, he may have to rely on certain documents and witnesses to substantiate his defense. The scope of enquiry therefore, becomes enlarged and the Magistrate has to weigh defense evidence against prosecution evidence. If summary procedure is applied, it is likely that the accused may not get full opportunity and ultimately fail in substantiating his defense. The accused had made out a case for grant of relief sought for and the decision to try the case as warrant case is fully justified.”

5. In this background, before adverting to the factual aspects of the case, it is just and necessary to have a birds eye view of Section 143 reads:

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of Sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials:

Provided that in the case of any convict