Back
KERALA HIGH COURT
P.D. Rajan, J.
Indira Gandhi Memorial General Marketing Society Ltd. —Petitioner
versus
M/s. Abraham Varghese & Company & Ors. —Respondents
Crl. M.C. No. 3846 of 2012
Decided on 19.3.2014
(ii) Negotiable Instrument Act 1881, Section 138- Criminal Procedure Code 1973 Section 326(3) read with Section 260 and 262 to 265- Dishonour of Cheque- Benefit of exception under Section 326(3)- Once the Court adopts the procedure of summons cases, no benefit of that Section will be available. (Paras 3 , 5, 6 and 7)
Facts of the case
Where the accused issued cheque for Rs. 321375 in favour of the complainant in discharge of his legal liability which was dishonoured on account of insufficient funds and accordingly after issuing statutory notice complaint was filed. The accused requested for Decided On : novo trial on the grind that complaints were filed before different Courts and in view of the Supreme Court decision in 2011(3) KHC 840(SC), Decided On : novo trial ordered, against which writ petition was filed for quashing the said order.
Findings of the Court
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-S.(1) of S. 143 of the Act enabling the magistrate to try the offence following the provisions under Ss. 262 to 265 of the Code though the punishment or such offence on conviction overrides the interdiction under Sub-s. (2) S. 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 S. 262 to 265 of the Code in the trial of the offence under S. 138 of the N.I. Act. When the case is proceeded as summary trial, proviso of Section 326(1) is not applicable. When case is not tried in a summary manner, the provisions of Sec. 326(1) are squarely applicable in this case. The only reason stated by the second respondent is that since it is a case under Sec. 138 of the NI Act based upon a special statute, it will give privilege than the general statute and the trial can be only summary. The Court did not agree with the said ratio since summons trial was ordered and adopted it cannot be changes into another way in the midst o the trial. Therefore half summons trial and half summary trial is not possible in a criminal case. The Magistrate has to either follow the procedure in a summons trial or follow the summary trial. If summons trial is ordered, the Magistrate shall complete the trial according to that procedure. Since the procedure of summons trial is adopted there is no question of getting the benefit of the exception of Sec. 326(3) Cr.P.C.
Result : Petition Allowed.
P.D. Rajan, J.—This is a petition filed under Section 482 of the Code of Criminal Procedure to quash Annexure-A4 and A8 in ST.No.216/2009 and ST.No.129/2010 of the Judicial First Class Magistrate Court-IV, Kottayam, (ST.No.216/2009 is the leading case) invoking inherent jurisdiction. Both cases were filed for offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the ‘Act’). The allegation is that the accused purchased rubber from the complainant and in discharge of that liability a cheque for Rs.3,21,375/- was given and when it was presented for encashment it was dishonoured due to insufficiency of fund. Even after on issuing statutory notice there was no payment. In the above circumstance, the above cases were filed in the trial court. Annexure-A1 and A2 are the complaint in both the cases.
2. Both cases were posted for evidence on 14.8.2012 and in view of the decision reported in Nitinbhai Saevatilal Shah v. Manubhai Manjibhai Panchal, 2011 (3) KHC 840 (SC) the accused requested for a de novo trial on the ground that the complaints were filed before different courts and subsequently transferred to Judicial First Class Magistrate Court-IV, Kottayam and a joint trial was allowed in ST.No.216 of 2009. The petitioner’s counsel resisted the same, but in view of the above decision the trial court ordered a de novo trial. Petitioner filed an application to allow him to adduce further evidence and requested to cancel the de novo trial. In the above circumstance the complainant approached this Court to quash the order of de novo trial ordered on 14.8.2012 with this petition.
3. Section 326 of Cr.PC, it reads as follows:-
“Conviction or commitment on evidence partly recorded by one Magistrate and partly by another:- (1) Whenever any Judge or Magistrate after having heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein and is succeeded by another Judge or Magistrate who has and who exercises such jurisdiction, the Judge or Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself:
Provided that if the succeeding Judge or Magistrate is of opinion that further examination of any of the witness whose evidence has already been recorded is necessary in the interests of justice, he may re- summon any such witness, and after such further examination, cross-examination and re- examination, if any, as he may permit, the witness shall be discharged.
(2) When a case is transferred under the provisions of this Code from one Judge to another Judge or from one Magistrate to another Magistrate, the former shall be deemed to cease to exercise jurisdiction therein, and to be succeeded by the latter, within the meaning of sub-section (1).
(3) Nothing in this section applies to summary trials or to cases in which proceedings have been stayed under section 322 or in which proceedings have been submitted to a superior Magistrate under section 325.”
The learned counsel appearing for the petitioner contended that the procedure for summons trial was followed in this case, in such circumstance it is the discretion of the learned Magistrate to start a de novo trial. No circumstances are explained in Annexure-A4 for ordering the de novo trial. But the learned counsel appearing for the respondent strongly resisted the contention and contended that according to Section 143 of the Act, all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate summarily and the provisions of Section 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials. The proviso also says that if any summary trial under such section is ordered, it is for the Magistrate to consider and pass orders for a term not exceeding one year and an amount of fine exceeding five thousand rupees. Therefore,
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
