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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
JOHN MICHAEL CUNHA, J.
Gururaj Joshi S/o. Pralhadacharya Joshi – Appellant
Versus
Sri V. Selvaraj, S/o. Vedan - Appellant
Criminal Petition No.8270 of 2014 C/W Criminal Petition No.8269 of 2014
Decided on : 04-04-2019
Negotiable Instruments Act, 1881 - Section 143 – Criminal Procedure Code - Sections 259 and 260 - Dishonor of cheques - Sentence of imprisonment - Whether in facts and circumstances of these cases learned Magistrate was justified in invoking second proviso to Section 143 of Negotiable Instrument Act - Whether nature of case warrants imprisonment exceeding one year or that it is undesirable to try case summarily - Undisputed facts are that petitioner initiated action against respondent under Section 138 of Act for dishonor of cheques issued by respondent - Learned Magistrate took cognizance of said offence and issued summons to respondent - In proof of charge under Section 138 of Negotiable Instruments Act complainant examined himself as PW1 and got marked Exs.P1 to P10 - At that stage before cross-examination of PW1 respondent/accused moved applications under Sections 259 and 260 of Criminal Procedure Code read with Section 143 of Act in both cases - Applications were based on plea that respondent/accused has produced several documents before trial Court in relation to transaction between him and complainant - These proceedings were initiated against complainant before Karnataka State Bar Council as well as before Police Station for having clandestinely misused documents while complainant was representing respondent as his pleader and therefore he proposed to confront these documents to PW1 and hence sought to convert summary trial into a warrant trial – Held, It is clear that jurisdiction to convert summary trial into a warrant trial is conferred on Magistrate only when it appears to Magistrate that nature of case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is for any other reason undesirable to try case summarily - In instant cases it is not case of either of parties nor has Magistrate recorded any finding to effect that nature of case is such that a sentence of imprisonment for a term exceeding one year may have to be passed against accused - On other hand learned Magistrate has proceeded on premise that having regard to defense set up by accused it is undesirable to try case summarily - This reasoning in court view cannot be countenanced - Learned Magistrate failed to note that accused has not entered into defense as on date of making applications - Even otherwise defense set up by accused cannot be a factor to determine whether nature of case warrants imprisonment exceeding one year or that it is undesirable to try case summarily - No doubt in applications respondent/accused had put forth a plea that complainant is guilty of fraud and that he proposed to bring on record necessary documents in support of fraud played by complainant - But it is trite that averments made in applications cannot be construed as a defense set up by accused - As a matter of fact complainant/PW1 was not cross-examined and no defense was suggested to witness - Stage had come for the accused to enter into defense - In said circumstances there was absolutely no basis for learned Magistrate to hold that having regard to defense set up by accused it would be undesirable to try case summarily - Since accused has not entered into defense as on date of making applications learned Magistrate was not entitled to invoke second proviso to Section 143 of Act - To this extent impugned orders cannot be sustained and are liable to be quashed and are accordingly quashed – However it is made clear that during course of trial if learned Magistrate arrives at opinion that having regard to nature of evidence brought on record it is undesirable to try case summarily learned Magistrate shall pass appropriate orders in terms of second proviso appended to Section 143 of Act and proceed in matter in accordance with law - Petitions are disposed of
ORDER :
These two petitions are directed against the orders dated 27.11.2014, passed by XV Additional Chief Metropolitan Magistrate, Bengaluru in C.C.Nos.22292/2011 and 22293/2011 respectively, whereby the learned Magistrate has allowed the applications filed by the respondent/accused under Sections 259 and 260 of Cr.P.C read with Section 143 of Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the Act’) and directed to convert the trial as a warrant trial case.
2. The undisputed facts are that the petitioner (hereinafter referred to as “complainant”) initiated action against the respondent under Section 138 of the Act for dishonour of cheques issued by the respondent. Learned Magistrate took cognizance of the said offence and issued summons to the respondent. In proof of the charge under Section 138 of the Negotiable Instruments Act, the complainant examined himself as PW1 and got marked Exs.P1 to P10. At that stage, before the cross-examination of PW1, respondent/accused moved applications under Sections 259 and 260 of Cr.P.C read with Section 143 of the Act in both the cases. The applications were based on the plea that the respondent/accused has produced several documents before the trial Court in relation to the transaction between him and the complainant. These proceedings were initiated against the complainant before Karnataka State Bar Council as well as before Chikkanayakanahalli Police Station for having clandestinely misused documents while the complainant was representing the respondent as his pleader, and therefore he proposed to confront these documents to PW1 and hence, sought to convert summary trial into a warrant trial.
3. The applications were opposed by the complainant. But, placing reliance on Section 143 of the Negotiable Instrument Act and Section 259 of Cr.P.C., by the impugned orders, the learned Magistrate allowed the applications. Learned Magistrate was of the opinion that the complainant is shielded with legal presumptions contemplated under Sections 118 and 139 of the Act and the said presumption is rebuttal in nature and therefore, heavy burden is placed on the accused to rebut presumption and under the said circumstances, resorting to the provisions of Sections 262 to 265 of Cr.P.C or adopting summary trial in high stake cases, is likely to prejudice the defence of the accused and thus, the learned Magistrate allowed the applications.
4. Learned counsel for the petitioner has placed reliance on the decision of this Court in Crl.P.No.3579/2014 dated 02.08.2008 wherein, this Court following the earlier decisions of this Court in the case of M/s. Mesh Trans Gears Private Limited, Bangalore vs. Dr.R.Parvathreddy reported in ILR 2014 KAR 5237 and in the case of M/s. Leo Granex vs. M/s. Pavillion Granites and Others reported in ILR 2009 KAR 4062, has held that Section 143 of the Act has a mandatory effect which means that the 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 Act. However, in a later decision of this Court in the case of Mahendra Kumar vs. Gangamma B reported in LAWS (KAR) 2018 6 23, it is held that the second proviso appended to Section 143 empowers the Magistrate in peculiar circumstances of a case to try the offence under the Act as a warrant case. Hence, it is contended that in view of these divergent views, the impugned orders are liable to be interfered with.
5. Further, referring to Section 143(3) of the Act, learned counsel for the petitioner has emphasized that the legislature has stipulated a time limit for disposal of the cases filed under the Act. This provision manifests the intention of the legislature that the cases under the Act should always be tried as summary trial and not as warrant trial, as sought to be contended by the respondent/accused. It is the submission of learned counsel for the petitioner that if the ratio laid down by this High Court in Mahendra Kumar’s case (su
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