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KERALA HIGH COURT
S.S. Satheesachandran, J.
T.Kannan —Petitioner
versus
Narayana Swami —Respondent
Crl. M.C. Nos. 2666 and 2667 of 2012
Decided on 15.11.2012
For the Petitioner:Mr. V.V. Raja and Mr. M.T. Sureshkumar, Advocates.
For the Respondents:Mr. K.G. Anil Babu, Mr. R. Rajesh (Pullikada) & Mr. R. Rema, PP, Advocates.
IMPORTANT POINT
Magistrate is not bound to follow the procedure for summary trial and he has a discretion to follow it or not.
Headnote:Negotiable Instruments Act, 1881—Sections 138 and 143—Offence of cheque bouncing—Power of Court to try cases summarily—Magistrate is not bound to follow the procedure for summery trial and he has a discretion to follow it or not —In the case filed by petitioner evidence of both sides was over and then presiding officer was transferred and another officer took charge—Complainant moved application for de novo tried—Admittedly the case was being trial in a summons trial procedure and not by summary trial—De novo trial was not called for.
Held: The phraseology ‘as far as may be’ used in Section 143 makes it abundantly clear that the Magistrate is not bound to follow the procedure for summary trial and he has a discretion to follow it or not. Second proviso to sub section (1) of Section 143 of the N.I. Act empowers a magistrate’ even in a case which has been commenced in a summary manner, to recall any witness already examined or rehear the case in the manner provided by the Code. What is required is only a primary satisfaction of the magistrate that the nature of the case is such that a sentence for punishment for a term of one year may have to be passed, or, for any other reason it is undesirable to try the case summarily. Only requirement on arriving of such satisfaction to switch over to a different procedure provided under the Code from summary trial already proceeded is recording of an order thereof by the magistrate. The non-obstante clause under sub section (1) of Section 143 of the Act enabling the magistrate to try the offence following the provisions under Sections 262 to 265 of the Code though the punishment for such offence on conviction overrides the interdiction under sub section (2) Section 262 of the Code has necessarily to be examined with reference to the words ‘as far as may be’ which clearly makes out that there is discretion to the magistrate whether to follow summary trial or to proceed with trial for the offence as in a summons case. The aforesaid words ‘as far as may be’ makes it clear that it is not mandatory for the magistrate to follow the procedure for summary trial as contemplated under Sections 262 to 265 of the Code in the trial of the offence under Section 138 of the N.I. Act.
Both sides concede that the two cases were tried following the procedure in a summons case and not by summary trial as under the provisions of Chapter XXI of the, Code. When such be the case, continuation of the trial of the case with the evidence recorded by the predecessor magistrate, and disposal of the cases by the successor magistrate will not be in any way vitiated. An offence under Section 138 of the N.I. Act can be tried only summarily, but, not in a different manner provided by the Code is not the purport of Section 143 of the N.1. Act. That Section only empowers the magistrate to try such offence summarily following the procedure applicable to a petty case as far as practicable. The Apex Court in Nitinbhai Saevatilal Shah’s case referred to above has not expressed any view that the offence under Section 138 of the N.1. Act can be tried only summarily. In fact the head note of that decision is misleading with a statement that ‘cheque cases are to be tried summarily’. No such expression is found in the discussion made by the Apex Court in paragraphs 9 to 16 of that decision. Moreover it is seen that the Apex Court considered and rendered the aforesaid decision in a case for the offence under Section 138 of the N.I. Act which was captioned as a summary case. That is evident from paragraph 6 of the judgment which is indicative that summary trial was followed by the magistrate in that case. The discussion made by the Apex Court in Paragraph 14 of that decision spells out what was considered was a case summarily tried by the magistrate. Punishment provided by the trial court also to some extent indicates that the case was tried by the magistrate summarily. Whatever that be, the Apex Court in the aforesaid reported decision has not laid down any binding principle to be followed that cheque cases involving the offence under Section 138 of the N.I. Act have to be tried only summarily. What could be the effect when an offence is tried summarily was considered in the aforesaid decision with reference to a case involving the offence under Section 138 of the N.I. Act, which had been tried as a summary case. (Para 5 and 6)
In the present cases where both sides concede that the trial was conducted following the procedure governing summons case, de novo trial of such cases is not called for, and the evidence recorded by the predecessor magistrate forming part of the record can be acted upon. However it is open to the successor magistrate, the present incumbent, to re-summon any witness and to have further examination if he is of opinion that such examination is necessary in the interest of justice, as empowered under the proviso to subsection (1) Section 326 of the Code. I make it clear that the endorsement made by the accused to act upon the evidence already recorded is of little merit, and that has no significance in the acceptance of such evidence.
De novo trial of the cases was requested by the petitioner/complainant only on the basis of the decision of the Apex Court as if that decision mandates trial of cheque cases summarily. When that is not so the request for de novo trial is not at all entertainable.
Petitions are dismissed with direction to the magistrate to take note of the observations made above and to dispose the two cases expeditiously, in accordance with law. (Paras 7 to 9)
Result: Petitions dismissed.
S.S. Satheesachandran, J.— Common petitioner is the complainant in two cheque cases, wherein the accused are different. Those accused are the respective party respondent in the above two petitions. In both complaint cases evidence on both sides is over. Presiding officer of the court was then transferred, and another officer, present incumbent, took charge. Complainant thereupon moved separate application in both cases for de novo trial. Those applications were filed under Section 311 of the Code of Criminal Procedure, for short, ‘the Code’ stating that the Apex Court in ‘Nitinbhai Saevatilal Shah and Another v. Manubhai Manjibhai Panchal and Another1 has held that cheque cases are to be tried summarily. In the midst of trial of cheque cases if the officer who recorded the evidence partly or fully is transferred such evidence cannot be acted upon, and the new officer has to commence the trial afresh, otherwise it will vitiate the proceedings, was the case canvassed for de novo trial. Accused in both complaints, opposed the applications filing written objections contending that the decision is- not applicable to the cases. Learned Chief Judicial Magistrate thereupon passed the order, similar in both cases, as hereunder.
“No objection in continuing the trial. Endorsed. Hence, C.M.P closed.”
That order passed in the respective case is challenged by the complainant in these two petitions.
2. Learned counsel for the complainant referring to Nitinbhai Saevatilal Shah’s case, referred to above, contended that the observations made by the Apex Court spell out that even if the trial proceeds on the consent of parties, and not objected to by the accused, still, that will not empower the court to act upon the evidence recorded by the previous presiding officer, and, therefore, a fresh trial has to be conducted in the two cases. A reported decision rendered by this court in Balan C. v. Preetha N.P. and Ors.2 following the decision rendered by the Apex Court referred to above ordering a de novo trial in a cheque case, is also relied by the counsel to contend that a fresh trial has to be proceeded with, and the cases cannot proceed on the evidence already recorded, for their disposal. Per contra, learned counsel appearing for the respective accused in, the two cases contended that the accused, both of them, have no objection in continuation of the trial and disposal of the cases relying on the evidence already recorded. According to the learned counsel what has been brought out during the cross-examination of the complainant and his witnesses in the two cases is so detrimental to the complainant and, so much so, to eschew the consideration of that evidence and to bring in new materials applications under Section 311 of the Code relying on the aforesaid decision of the Apex Court have been moved by the complainant in the two cases. The accused have endorsed that they have no objection in continuing with the trial on the evidence already recorded. Acceptance of that endorsement by the magistrate to proceed with the trial for disposing them, as reflected in the two orders passed separately in the cases, does not call for any interference, is the further submission of the counsel.
3. The offence under Section 138 of the Negotiable Instruments Act, for short the ‘Act’, arising on dishonour of a cheque has been inserted in the Act with a view to enhance the acceptability of the cheques and to punish the drawer on bouncing of cheques if payment of the sum under the cheque is not paid within the period stipulated after receipt of a statutory notice intimating dishonour and demand for such sum. Chapter XVII of the Act with Sections 138 to 142 was newly inserted by way of the amendment, namely, the Banking and Public Financial Institutions and the Negotiable Instruments Laws (Amendment) Act, 1988 (66 of 1988). The aforesaid provisions inserted by amendment came into effect from 01.04.1989. However, soon it was realized that the punishment
