Judgment

B.K. NAYAK, J.

Order dated 17.02.2012 passed by the learned J.M.F.C., Khallikote in I.C.C. No.2 of 2006 directing the complainant to come ready with his witnesses on the next date for evidence de novo has been assailed in this criminal revision.

2. The complaint case in question is one under Section 138 of the Negotiable Instruments Act, 1981 (in short “the N.I. Act”). The trial of the complaint case began on 22.08.2008 by following summons procedure as contained in Chapter-XX of the Code of Criminal Procedure,1973 by the then J.M.F.C. When the complaint case had been fixed for argument after closure of evidence from both sides, the present J.M.F.C., Khallikote joined on transfer in place of his predecessor-in-office. Without hearing arguments, the learned J.M.F.C. passed the impugned order holding that in terms of Section 143 (1) of the N.I. Act a complaint case under Section 138 of the said Act is to be tried in summary procedure as provided in Sections 262 to 265 of the Cr. P.C. and that departure from summary procedure is possible only when the requirement of the second proviso to Section 143(1) of the N.I. Act is satisfied, that is to say, if the Magistrate passes an order after hearing both parties that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or for any other reason it was undesirable to try the case summarily. The learned J.M.F.C. has stated in the order that neither at the commencement nor in course of trial under the section any such order has been passed. He, therefore, instead of hearing arguments, fixed the complaint case for de novo trial to 29.02.2012 and directed the complainant to come ready with his witnesses in view of the provision prescribed in Section 326(3), Cr. P.C.

3. The learned counsel for the accused-petitioner contended that since the trial of the complaint case was held by following summons procedure and not summary procedure, Section 326 (3) of the Cr. P.C. was not a bar for the learned J.M.F.C. to proceed further from the stage of argument of the case. It is also his submission that adoption of summary procedure in terms of section 143(1) of the N.I. Act for trial of the complaint case is not mandatory in view of the expression, “as far as may be” occurring in sub Section (1) of Section 143 of the Act read with the second proviso, and therefore, the trial conducted in the instant complaint case by following summons procedure cannot be said to be illegal and, therefore, the impugned order directing for de novo trial is unsustainable.

The learned counsel appearing for the complainant-opposite party also supports the contention raised by the learned counsel for the petitioner.

4. Since the matter relates to interpretation of the provisions of the N.I. Act, particularly Section 143 thereof, the learned Advocate General was requested to address the Court. According to him, the mandate of sub Section (1) of Section 143 is to adopt summary procedure for trial of complaint case under Section 138 of the N.I. Act and the only exception has been carved out in the second proviso to Section 143(1) which visualizes two contingencies for departing from summary procedure at the commencement or at any stage of trial only if the Magistrate passes an order to that effect after hearing the parties.

5. In the instant case for coming to the conclusion that he cannot act upon the evidence recorded by his predecessor-in-office, the learned J.M.F.C. has held that since his predecessor-in-office commenced the trial by following summons procedure without passing any order as required under the second proviso to Section 143 (1) of the N.I. Act, the procedure so adopted shall be regarded as evidence being recorded under Chapter-XXI of the Cr. P.C., that is, summary procedure and, therefore, in view of the bar contained in Section 326(3) of the Cr. P.C. he cannot act upon the evidence recorded by his predecessor-in-office and hence a de novo tri