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2010(1) Bankmann 430 (Kar.)
KARNATAKA HIGH COURT
Jawad Rahim, J.
Leo Granex —Petitioner
versus
Pavillion Granites & Ors. —Respondents
Crl. R.P. No. 1423 of 2006
Decided on 27.1.2009
Counsel for the Parties:
For the Petitioner:Mr. C.V. Nagesh, Advocate.
For the Respondents:Mr. C.H. Hanumantharaya, Advocate.
IMPORTANT POINT
There is no impediment to convert a case from summons case to warrant case for offence u/s 138 of N.I. Act either before commencement of trial or even after trial has commenced.
Headnote:Negotiable Instruments Act, 1881—Sections 138 and 143—Criminal Procedure Code, 1973—Section 259—Dishonour of cheque—Conversion of trial from summary case to one of warrant case—Power to try such cases summarily is conferred statutorily by Section 143—There is no impediment to convert a case from summons case to warrant case for offence u/s 138 of N.I. Act either before commencement of trial or even after trial has commenced—Accused is in a vulnerable position in view of presumptions—When burden is cast on accused to rebut such presumptions a detailed enquiry becomes necessary like in a warrant case—Case has to pass from stage to stage providing him opportunity for defence evidence—Magistrate has been given a free hand to decide which procedure has to be applied and such decision shall depend on nature of charge—Accused made out a case for grant of relief sought—By applying procedure contemplated for warrant case, not prejudice would be caused to complainant—Impugned order not suffering from any infirmity—Revision petition dismissed. (Paras 16 to 24)
Jawad Rahim, J.—Complainant is in revision under Sections 397 and 401. Cr.P.C. questioning the legality and sustainability of the order dated 29.5.2006 passed in C.C. 14009/03 on an application filed under Section 259, Cr.P.C. filed by the 3rd respondent seeking conversion of trial from summary case to one of warrant case.
2. Heard the learned Counsel on both sides. The matter is admitted and taken up for final disposal with consent.
3. The contextual facts are:
(a) Petitioner herein initiated prosecution against the respondents by a petition under Section 200. Cr.P.C. for the offence punishable under Section 138, Negotiable Instruments Act (hereinafter referred to as the Act for short) on the premise that respondent No. 1, a proprietary concern, had business transaction with it and in relation thereto, issued a cheque in a sum of Rs. 8,10,00,000/- towards discharge of the debt and legal liability. The said cheque on presentation was dishonoured for “insufficiency of funds” and consequent action taken by the complainant to call upon the accused to make good the amount by statutory notice as envisaged under Clause (b) of Section 138, was not complied.
(b) Cognizance was taken on the complaint and the presence of respondent-3 was secured as she was shown to represent the company as Managing Director.
(c) In response to the process issued, she was before Court on 10.3.2004 and soon filed an application under Section 259. Cr.P.C. requesting the jurisdictional Magistrate to convert trial of the accused from summary trial to one of warrant trial.
(d) The application faced heavy resistance from the complainant on several grounds, one amongst it was, it is a deliberate attempt of the accused to procrastinate the proceedings by her absence, and also that she had indulged in acts to impede the proceedings and that no relief as sought could be granted under Section 259, Cr.P.C.
(e) Both sides did urge several grounds which were taken into consideration by the Trial Court and by the impugned order, the application has been allowed. Consequent to it, the accused will be subjected to trial and the procedure prescribed for conduct of warrant cases is to be followed. The complainant apprehends it will be seriously affected by such order and is, therefore, in revision questioning the same.
4. Learned counsel, Mr. C.V. Nagesh for the petitioner/complainant, would contend that the Magistrate, while entertaining the application under Section 259, Cr.P.C. had ignored the circumstances in which the provision would become applicable. In this regard, he drew my attention to the phraseology used in Section 259, Cr.P.C. to contend that though under the said provision, power is conferred on the Magistrate conducting trial to convert a summons case into warrant case, but the power could be exercised by the Magistrate only after trial has commenced.
5. Specific reference is made to the language used in the section which reads:
‘259. Power of Court to convert cases into warrant cases:
‘When in the course of the trial of a summons-case relating to an offence punishable with imprisonment for a term exceeding six months, it appears to the Magistrate that in the interests of justice, the offence should be tried in accordance with the procedure for the trial of warrant-cases, such Magistrate may proceed to re-hear the case in the manner provided by this Code for the trial of warrant-cases and may recall any witness who may have been examined.’
Placing emphasis on the words ‘course of trial’ appearing in the said section, it was submitted that in the instant case trial has not commenced; plea of the accused has not been recorded; before such proceedings the accused appeared in response to summons and moved the application. Therefore, he submits, the Magistrate was required to examine the stage of the case and as trial had not commenced, the application should have been dismissed in limine.
6. Secondly, it was urged that exercise of power conferr
