Maruthi Finance Enterprises vs T. Lakshmi

Anand Byrareddy, J.—These petitions are filed after a delay of 18 days by the same petitioner against two respondents in respect of distinct cheques which have been dishonoured. The petitioner had brought a complaint for an offence punishable u/s 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ''the NI Act'', for brevity) in respect of each individual cheques and the same having been tried together, initially, the Trial Court had convicted the accused. Hence, an appeal was preferred by the accused. The Appellate Court has held that the court below has not followed the procedure as prescribed under the NI Act in conducting the trial and it had noticed that Section 143 of the NI Act prescribes that, notwithstanding anything contained in the Code of Criminal Procedure, 1973(hereinafter referred to as ''the Cr. P.C., for brevity), all offences under Chapter-IV of the NI Act shall be tried by a Judicial Magistrate of the First Class or the Metropolitan Magistrate and the provisions of Sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials.

Therefore, in the instant case on hand, the Appellate Court had noticed that the evidence had been recorded by one Magistrate and before the trial had been concluded, the Magistrate having been transferred, another Magistrate had continued the procedure drawing inspiration from Section 326 of the Cr. P.C. This, the Appellate Court has found was not in accordance with law, as sub-section (1) of Section 143 of the NI Act has come in for interpretation by this Court in Crl. P. 8943/2010 decided on 22.03.2013 in the case of M/s. Mesh Trans Gears Private Limited vs. Dr. R. Parvathreddy, and this Court has opined as follows:

"In every case tried summarily, in which the accused does not plead guilty, the Magistrate shall record the substance of the evidence and a judgment containing a brief statement of the reasons for the finding. A successor Magistrate can act on the evidence recorded by his predecessor, either in whole or in part. There is no need to conduct a retrial or a de novo trial, where the case was conducted as a summons case. Therefore, if the Magistrate, records the evidence, as is done in a regular summons case the succeeding Magistrate can act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself.

If a case u/s 138 of the NI Act is in fact, tried as regular summons case it would not come within the purview of section 326(3) of Cr. P.C. In other words, if the case in substance was not tried in a summary way, though was triable summarily, and was tried as a regular summons case, it need not be heard de novo and the succeeding Magistrate can follow the procedure contemplated u/s 326(1) of the Code. However, where a case is tried in a summary way by following the procedure contemplated by the provisions of Chapter XXI of the Code and in particular sections. 263 and 264, then it would be excluded from the purview of section 326(1) of the Code.

Section 143 has a mandatory effect though the provision opens with a non obstante clause. This means that provisions of section 259 of Cr. P.C. regarding a warrant trial shall have no application in respect of an offence u/s 138 of the NI Act. There is no room for doubt that for the purposes of trial of an offence falling under the Act, the provisions of a summary trial under the Code would be applicable and a summary trial cannot be converted into a trial for a warrant case. The evidence adduced by the parties could be by way of affidavits u/s 145 of the Act. And on the application of the prosecution or the accused the Court may summon or examine any person giving evidence as to the facts contained thereunder.

When at the commencement of, or in the course of, a summary trial, it appears to the Magistrate 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 that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the Code of Criminal Procedure.

An option is left with the Magistrate to try the case in the manner provided under Sections 262 to 265 of the Code of Criminal Procedure or otherwise as a regular trial. The phraseology used in the section ''as far as may be'' denotes that there is an option available to the Magistrate. There may be circumstances wherein after recording the evidence, the Magistrate may gather an impression that the case calls for a higher punishment and in such a circumstance, the Magistrate can elect to try the case as a summons case."

The Appellate Court having remanded the matters for a fresh consideration, therefore cannot be faulted.

The question of law if it requires to be answered, is in the affirmative. The Appellate Court has rightly held that the procedure followed was not in accordance with law. It is unfortunate that in the result, the complainant would have to go through the process over again when originally, the complaint having been filed in the year 2002, it is indeed unfortunate to relegate the petitioner over again to the Trial Court.

But, the point of law raised is such that it cannot be overlooked. Accordingly, there is no merit in these cases. Consequently, there is no need to issue notice on LA. 1/2014 seeking condonation of delay. The same is allowed for the reasons stated. However, the petitions do not merit consideration and are accordingly rejected.