Shiva Kumar vs The State

Anand Byrareddy, J.—Heard the learned counsel for the petitioner and the respondent.

The petitioner was the accused before the Trial Court for an offence punishable u/s 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ''the NI Act'', for brevity). The matter was contested. It transpires that trial was on and the evidence was recorded partially. The Presiding Officer was transferred and the next Presiding Officer who took charge, continued with the proceedings, drawing sustenance from Section 326 of the Code of Criminal Procedure (hereinafter referred to as ''the Cr.P.C.'' for brevity) and ultimately had convicted the present petitioner, which was challenged in appeal.

The Appellate Court in turn has affirmed the said conviction which is sought to be challenged in the present case on hand.

The question whether in a circumstance where during the course of the trial if part of the evidence has been recorded and the Presiding Officer stands transferred, whether the next Presiding Officer could continue with the proceedings in terms of Section 326 of the Cr.P.C. stands answered 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 above opinion is expressed on a close examination of the legal provisions and decided case law. Therefore, though the object of Chapter-IV of the NI Act is to ensure speedy disposal of cases instituted for offences punishable u/s 138 of the NI Act, it is inevitable that by going by the letter of the law, the matter would have to be remanded for a fresh enquiry.

It is also to be noticed that in the present case on hand, on verification, the counsel would submit that the Magistrate did not state that the case which is required to be tried summarily was being tried as a summons case which was a requirement if had been complied with, it was possible to draw sustenance from Section 326 of the Cr.P.C. That exercise not having been carried out, the procedure followed is not in accordance with law. Hence, the matter stands remanded to the Trial Court.

It is noticed that the proceedings in respect of complaints for an offence punishable u/s 138 of the NI Act are usually long-drawn out and take the same course as other criminal cases. Therefore, attention of the Trial Court is drawn to the special procedure prescribed under Sections 138 to 147 of the NI Act, which enables the Court to adjudicate expeditiously in respect of the complaint, unlike other criminal complaints. This may kindly be kept in view and the matter on remand be disposed of with expedition.

With that observation, the petition is allowed.