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SUPREME COURT OF INDIA
Ranjana Prakash Desai and N.V. Ramana, JJ.
J.V. Baharuni and Ors. —Appellants
versus
State of Gujarat and Ors. —Respondents
Criminal Appeal Nos. 2221 to 2223 of 2014 (Arising out of Special Leave Petition (Crl.) Nos. 5623 & 3332 of 2012 and 734 of 2013)
Decided on 16.10.2014
(B) Negotiable Instruments Act, 1881—Sections 138 and 143—Criminal Procedure Code, 1973—Sections 263, 264 and 326—Dishonour of cheque—Summary trial—If case in substance was not tried in a summary way, though was triable summarily and was tried as a summons case, it need not be heard de novo and succeeding Magistrate can follow procedure contemplated under Section 326(1) of Code—But where even in a case that can be tried summarily, Court records the evidence elaborately and in verbatim and defence was given full scope to cross-examine, such procedure adopted is indicative that it was not summary procedure and succeeding Magistrate can rely upon evidence on record and de novo enquiry need not be conducted. (Paras 37 and 38)
(C) Negotiable Instruments Act, 1881—Sections 138 and 143—Criminal Procedure Code, 1973—Sections 263, 264 and 326—Dishonour of cheque—Summary trial—There is no strait jacket formula to try cases falling under N.I. Act—Law provided therefor is so flexible that it is up to prudent judicial mind to try case ‘summarily’ or otherwise—Second proviso to Section 143 of the Act specifies that in case Magistrate does not deem the case fit to try summarily, he shall record an order to that effect after hearing parties—Just because this directive is not followed scrupulously by Trial Court would itself not vitiate entire trial and appellate Court should not direct for a de novo trial merely on ground that Trial Court had not recorded order for not trying the case summarily. (Para 44)
(D) Constitution of India—Article 21—Speedy trial—Speedy trial’ and ‘fair trial’ to a person accused of a crime are integral part of Article 21 of Constitution of India—There is qualitative difference between right to speedy trial and accused’s right of fair trial—Unlike accused’s right of fair trial, deprivation of right to speedy trial does not per se prejudice accused in defending himself—Right to speedy trial is in its very nature relative—It depends upon diverse circumstances—Each case of delay in conclusion of a criminal trial has to be seen in facts and circumstances of such case—Mere lapse of several years since commencement of prosecution by itself may not justify discontinuance of prosecution or dismissal of indictment. (Para 49)
(E) Constitution of India—Article 21—Speedy trial—Factors concerning accused’s right to speedy trial have to be weighed vis-a-vis impact of crime on society and confidence of people in judicial system—Speedy trial secures rights to an accused but it does not preclude rights of public justice—Nature and gravity of crime, persons involved, social impact and societal needs must be weighed along with right of accused to speedy trial and if balance tilts in favour of former long delay in conclusion of criminal trial should not operate against continuation of prosecution and if right of accused in facts and circumstances of case and exigencies of situation tilts balance in his favour, prosecution may be brought to an end—These principles must apply as well when appellate Court is confronted with question whether or not retrial of an accused should be ordered. (Para 49)
(F) Negotiable Instruments Act, 1881—Sections 138 and 143—Criminal Procedure Code, 1973—Sections 263, 264 and 326—Dishonour of cheque—Summary trial—De novo trial should be the last resort and that too only when such a course becomes so desperately indispensable—It should be limited to extreme exigency to avert failure of justice—Any omission or even illegality in procedure which does not affect core of case is not a ground for ordering de novo trial— Superior Court which orders de novo trial cannot afford to overlook realities and serious impact on pending cases in trial courts which are crammed with dockets and how much that order would inflict hardship on many innocent persons who once took all trouble to reach Court and deposed their versions in very same case—Re-enactment of whole labour might give impression to litigant and common man that law is more pedantic than pragmatic—Law is not an instrument to be used for inflicting sufferings on people but for process of justice dispensation. (Para 58)
Result: Appeals allowed. Matter remitted to High Court for fresh consideration.
N.V. Ramana, J.— Leave granted.
2. The undisputed facts of the appeal arising out of S.L.P. (Cri.) No. 5623 of 2012 arc that appellant No.2 is the owner of appellant No. I Company. The respondent No.2, who is in the business of manufacture, process and marketing of petroleum products has a Company Owned Company Operated retail outlet at Village Gadu, Maliya Hatina Taluq, District Junagadh, Gujarat. Appellants entered into a contract with the Respondent No.2 Corporation for performing various contractual jobs. As per the terms of the contract, the appellants were required to undertake the contracted jobs and to deposit the money out of sale proceeds on a daily basis in the State Bank of India, Veraval Branch. The business dealings between the parties were going on since 1996 and in terms of the contract appellants furnished to the Respondent No.2, two Cheques bearing Nos. 884572 and 884574, dated 24th June, 2000 for Rs. 10 lakhs and Rs. 25 lakhs, respectively. When the cheques were presented for realization, they bounced with the endorsement “not arranged for”. Hence, respondent No.2 initiated criminal proceedings under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the N.I. Act’) against the appellants and filed Criminal Complaint No. 2131 of 2000.
3. Before the Trial Court it was argued on behalf of Respondent No. 2 Corporation that the cheques in question were issued by the appellants to discharge their part liability for clearing the dues whereas the case of the appellants was that there were no dues payable to the Respondent Corporation and the Cheques were taken by the complainant Corporation as ‘guarantee’ and misused the same.
4. The Trial Court acquitted the appellant No. 2 accused under Section 255(1) of the Criminal Procedure Code (Cr.P.C.) holding that considering the facts and circumstances and taking into account the evidence and the settled principles of law, complainant has failed to prove the charge against the accused and under the circumstances, it is not possible to hold the accused guilty for the offence punishable under Section 138 of the Act.
5. Aggrieved by the judgment of the learned Trial Judge, the respondent No. 2complainant challenged it in an appeal before the High Court of Gujarat under Section 378, Cr.P.C. It was contended before the High Court on behalf of the complainant Corporation that the evidence was recorded by one Magistrate and relying on the same evidence, his successor Magistrate delivered the judgment. Therefore, the trial was vitiated as the case was tried ‘summarily’ under Section 143 of the N.I. Act, and the successor Magistrate could not have relied upon the evidence recorded by his predecessor. Placing reliance on this Court’s decision in Nitinbhai Saevatilal Shah v. Manubhai Manjibhai Pancha, lAIR 2011 SC 3076.the complainant submitted that the matter be remanded to the Trial Court for a de novo trial.
6. The High Court observed that the learned Magistrate who delivered the judgment was not in a position to appreciate the evidence properly and decide the matter effectively to do substantial justice as he formed the opinion relying upon the evidence recorded by his predecessor. It, therefore, caused serious prejudice to the complainant as an order of acquittal was passed. Hence, the High Court allowed the appeal and remanded the matter to the Trial Court for a fresh trial in accordance with law after giving opportunity to the parties.
7. Dissatisfied with the High Court’s judgment, the accused appellants assailed it in appeal before this Court. On 6th August, 2012, this Court while issuing notice, stayed proceedings going on before the learned Magistrate in pursuance of the remand order passed by the High Court.
8. The brief facts of S.L.P. (Cri) No. 3332 of 2012 are that at the relevant time, the complainant Jayesh Thakker was the Manager of Respondent No.1 firm (D.M. Finance). Appellant Nos. 2 to 5 were Directors of the Appellant No.1 Company which runs
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