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Andhra High Court · body

2013 DIGILAW 1027 (AP)

J. Ravi v. J. Uma Maheswari

2013-11-19

S.RAVI KUMAR

body2013
JUDGMENT This is a revision against the orders of the Additional Judicial First Class Magistrate, Srikalahasthi dated 11-9-2012 passed in Crl.M.P.No.1159 of 2012 in S.T.C.No.38 of 2009 wherein the learned Magistrate accepted the request of the accused to conduct de nova trial in the case as per the provisions of Section 326 (3) Cr.P.C. 2. The brief facts leading to this revision are as follows: The revision petitioner herein filed a complaint under Section 138 of the Negotiable Instruments Act against the 1st respondent herein before the learned Magistrate, Srikalahasti who proceeded with the trial. In the said case, the 1st respondent herein filed a petition before the learned Magistrate contending that the evidence in the case was recorded by his predecessor and therefore, according to Section 326 (3) Cr.P.C., a de nova trial has to be conducted. 3. The revision petitioner herein resisted the application on the ground that the Negotiable Instruments Act was amended in the year 2002 with regard to the quantum of punishment and in view of that amendment, when the Magistrate feels that the punishment to the accused is to be exceeded by one year, in such case, Magistrate has to adopt summary procedure. 4. On a consideration of the contentions and rival contentions, the learned Magistrate accepted the request of the 1st respondent herein for de novo trial. Aggrieved by the said order, the complainant before the lower court preferred the present revision. 5. Heard both sides. 6. The main argument of the learned counsel for the revision petitioner is that as per the proviso to section 143 of the Negotiable Instruments Act, the learned Magistrate has a power to try the case as a summons case when he or she fees that punishment in that case be for more than one year. He submitted that the trial court erred in holding that there is a bar on relying evidence recorded by his predecessor therefore his order has to be set aside. He further submitted in Section 263 of Cr.P.C., the procedure to be followed in case of summary trial is prescribed. He further submitted that according to this provision, the Magistrate is expected to note some particulars as prescribed in the said section. He further submitted in Section 263 of Cr.P.C., the procedure to be followed in case of summary trial is prescribed. He further submitted that according to this provision, the Magistrate is expected to note some particulars as prescribed in the said section. He further submitted that when the summary procedure is followed, the Magistrate is expected only to record the gist of the evidence but not the entire deposition in verbatim as done in the cases tried under summons procedure or warrant procedure. 7. He further submitted that since the gist is only recorded under the summary trial procedure, the option of conducting de nova trial is given since the succeeding Magistrate do not have any idea about the statements of the witnesses which the predecessor heard. But when the evidence is recorded without recording the gist, there is no necessity for de novo trial. He further submitted that in this case, the learned Magistrate recorded the evidence by following the summons procedure and both chief examination and cross examination were done for the witnesses and therefore, the contention of the accused with regard to de nova trial is not justified. 8. On the other hand, advocate for the 2nd respondent submitted that the trial court permitted de nova trial adhering to the procedure contemplated for summary trials and there is no illegality committed by the trial court. 9. Now the point that arises for my consideration in this appeal is whether the order of the trial court is legal, correct and proper? 10. POINT: Admittedly, the revision petitioner filed a complaint under Section 138 of the Negotiable Instruments Act and in that case, the 2nd respondent herein filed petition under Section 326 (3) Cr.P.C. to conduct a de novo trial on the ground that the present Presiding Officer cannot rely on the evidence recorded by his predecessor under summary trial procedure. 11. Chapter 21 of the Code of the Criminal Procedure deals with summary trials. Section 262 Cr.P.C. contemplates “trials under chapter 21 has to follow the procedure specified for the trial of summons case except in respect of cases mentioned therein. In Clause 2 of the Section, a condition is incorporated, according to which when procedure under Chapter 21 is followed, no sentence of imprisonment exceeding three months shall be passed. Section 262 Cr.P.C. contemplates “trials under chapter 21 has to follow the procedure specified for the trial of summons case except in respect of cases mentioned therein. In Clause 2 of the Section, a condition is incorporated, according to which when procedure under Chapter 21 is followed, no sentence of imprisonment exceeding three months shall be passed. The sentence of imprisonment for offence under Section 138 of the Negotiable Instruments Act is two years as per the amendment and if the Magistrate follows the procedure of summary trial, as prescribed under Section 263 Cr.P.C., he cannot impose sentence of more than three months. So, as rightly pointed out by the advocate for revision petitioner, proviso to Section 143 of the Negotiable Instruments Act gives option to the Magistrate with regard to the procedure to be followed depending upon the facts and circumstances of each case. 12. Admittedly, in this case, the learned Magistrate appears to have followed summons case procedure and recorded the evidence of witnesses but not the gist of evidence as contemplated in respect of summary trial cases. 13. When the Magistrate has recorded the evidence under summons case procedure, there is no need of de novo trial. Even Section 326 (1) Cr.P.C., gives option to the Magistrate to act on the evidence recorded by his procedure wholly or partly and if the succeeding judge feels that further examination of any witnesses whose statements have already been recorded by his predecessor, the officer may re-summon them for further examination or cross-examination or re-examination. There is no bar for the Magistrate to try an offence under Section 138 of the Negotiable Instruments Act as a summons case, on the other hand, it is expressly made permissible by the proviso to section 143 (1) of the Negotiable Instruments Act. When summons procedure is followed, the evidence is to be recorded like taking chief affidavit and recording cross-examination ‘word to word’ instead of noting down the gist or substance of the evidence of witnesses. When the recorded evidence from ‘word to word’ is available on record, the successor officer can act on it and if he or she feels any clarification, the officer has got power to re-summon the witnesses as per Section 326 (1) Cr.P.C. and proviso thereto. 14. When the recorded evidence from ‘word to word’ is available on record, the successor officer can act on it and if he or she feels any clarification, the officer has got power to re-summon the witnesses as per Section 326 (1) Cr.P.C. and proviso thereto. 14. So as rightly pointed out by the learned Advocate for the revision petitioner, the learned Magistrate completely erred in directing the complainant to go for a de novo trial that to on the request of accused. 15. On a scrutiny of the material on record, I am of the considered view that the learned Magistrate committed grave error and his findings are incorrect and not in accordance with the procedure laid down and therefore, the same is liable to be set aside. 16. In the result, this revision is allowed at the admission stage and the impugned order of the learned Magistrate is set aside. The trial Court is directed to proceed further. 17. As a sequel to the disposal of this revision, the Miscellaneous Petitions, if any, pending, shall stand dismissed.