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CALCUTTA HIGH COURT
Shib Sadhan Sadhu, J.
Debashis Maity —Petitioner
versus
The State of West Bengal & Anr. —Opp. Parties
C.R.R. No.2966 of 2014
Decided on 29.1.2015
For the Petitioner:Mr.Prabir Mitra, Mr.Pinaki Mitra, Ms.Ujjaini Chatterjee, Advocates
For the Opp.Party No.2:Mr.Arijit Dey, Advocate
IMPORTANT POINT
There cannot be any combination of summons trial and summary trial in same proceeding.
Headnote:Negotiable Instruments Act, 1881—Sections 138 and 143—Criminal Procedure Code, 1973—Section 326(3)—Dishonour of cheque—Summary trial—Trial Magistrate had adopted procedure for summons trial from very commencement of trial—Succeeding Magistrate also followed same procedure and concluded trial after taking evidence of accused/petitioner—Once summons trial was followed, it cannot be changed in midst of trial—There cannot be any combination of summons trial and summary trial in same proceeding—Magistrate is to follow either procedure of summons trial or of summary trial—When procedure for summons trial has been adopted, trial has to be completed following that procedure only and for that reason no question of claiming any benefit under Exception of Section 326(3)Cr.P.C. can be allowed to be surfaced at all—Impugned order affirmed. (Paras 11 to 13)
Result: Revision Petition dismissed.
Shib Sadhan Sadhu, J.—This is a petition filed under Section 482 of the Code of Criminal Procedure, 1973 to quash/set aside the impugned order dated 09.07.2014 passed by the Learned Additional Sessions Judge, redesignated Court, Paschim Medinipur in Criminal Revision No.381 of 2013 dismissing the revision preferred by the present petitioner challenging the order dated 04.09.2013 passed by the Learned Judicial Magistrate, 4th Court, Paschim Medinipur, in connection with case No. CR 662 of 2009.
2. The CR Case No.662 of 2009 was filed for offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the “Act”). The allegation is that the accused /petitioner was granted a loan of Rs.5,50,000/- by the complainant (O.P.No.2) on condition of repayment within the month of May, 2009. The petitioner/accused issued a cheque on 16.06.2009 for Rs.5,50,000/- in favour of the complainant (O.P.No.2). When it was presented for encashment it was dishonoured due to insufficiency of fund. Even after issuance of statutory notice, there was no payment. In such circumstances, the aforesaid case was filed before the Trial Court. Annexure A (Page-15) is the complaint in that case.
3. The Learned Chief Judicial Magistrate, Paschim Medinipur, after taking cognizance on perusal of the aforesaid complaint transferred the same to the Court of Learned Judicial Magistrate, 4th Court, Paschim Medinipur for disposal. Thereafter, he proceeded with the case and held the trial after recording plea of the accused under Section 251 Cr.P.C. and after recording deposition of witnesses. During the midway that Learned trying Magistrate was transferred. The Learned succeeding Magistrate proceeded with the trial without ordering for a de novo trial. So being aggrieved the petitioner/accused filed an application before the Learned Magistrate praying for de novo trial in terms of Section 143 of the Act read with Section 326 (3) of the Cr.P.C.
4. By an order dated 15.09.2012, the Learned Magistrate rejected the said application. Thereafter the Learned Presiding Magistrate was transferred and the petitioner/accused preferred a second application for de novo trial before the Learned succeeding Magistrate. But that second application was also rejected by an order dated 04.09.2013 by the Learned Judicial Magistrate, 4th Court, Paschim Medinipur refusing to grant de novo trial in violation of the principles of section 326(3) of the Cr.P.C.
5. Being dissatisfied with such order the petitioner preferred a revision being Criminal Revision No.381 of 2013 before the Learned Additional Sessions Judge, Paschim Medinipur, by passing the impugned order dated 09.07.2014 dismissed the revision. Being aggrieved by the said order the petitioner has now approached this Court with the instant revisional application.
6. I have heard Mr. Prabir Mitra, Learned Senior Advocate appearing for the petitioner and Mr. Arijit Dey, Learned Advocate appearing on behalf of the Opposite Party No.2. I have also perused all the available materials on record including the impugned order and judgment with meticulous care.
7. Mr. Mitra, Learned Advocate appearing on behalf of the petitioner, submitted that the Learned Magistrate proceeded with the trial in terms of the procedure as prescribed under Section 143 of the Act which mandates that the Court is to try offences under Section 138 of the Act in a summary manner as laid down in Sections 262 to 265 of the Criminal Procedure Code. But both the Learned Courts below ignored such statutory mandate without recording any order for deviating from the usual procedure of trying the case summarily and also without following the mandatory procedure provided by the Sub-section 3 of Section 326 of the Cr.P.C. which specifically bars the succeeding Magistrate to act upon the recordings of the findings of the former Magistrate and thereby the principles of natural justice have been violated. Therefore, according to him the impugned order
