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Karnataka High Court · body

2013 DIGILAW 316 (KAR)

Shobhavathi v. Krishnoji Rao

2013-03-12

K.Sreedhar Rao

body2013
ORDER K. Sreedhar Rao, J. The petitioner/accused had issued a cheque for a sum of Rs.50,000/- in favour of the complainant, who is none other her brother-in-law. The cheque was dishonoured. A complaint is filed U/s. 138 of N.I. Act. It is the contention of the complainant that for business purpose loan was borrowed and towards repayment of loan, cheque was issued. The defence contention is to the effect that sister of the accused is the third wife of the complainant. He was pestering his third wife to get money. In that connection, a cheque was issued. In other words, it is the contention that cheque is not supported by any consideration and cheque was issued to prevent cruelty and harassment perpetrated on his third wife. The Trial Court has held the accused guilty of committing offence U/s.138 of N.I. Act. The Appellate Court confirmed the conviction and modified the sentence reducing S.I. for a period of one month and compensation of Rs.1.00 lakh and directed to pay the same to the respondent. The accused has filed this revision. 2. Sri. K.V. Narasimhan, learned Counsel appearing on behalf of the petitioner submits the following contentions to assail the order of conviction: (i) The accused has examined her-self and testified to the effect that cheque was issued to console the complainant and to prevent him from harassing his third wife who is none other the sister of the accused. Therefore cheque is not supported by any lawful consideration. (ii) The imposition of sentence of imprisonment is bad in law. Primarily fine is to be levied and compensation is to be awarded, in default, sentence of imprisonment to be imposed. (iii) The decision of the Supreme Court in the case of Nitinbhai Saevantihlal Shah & Another Vs. Manubhai Manjibhai Panchal reported in 2011 SAR (Criminal) 808 is relied upon. In the said decision, it is held that U/s. 326 of Cr. P.C. in respect of summary trial, it is not permissible for the succeeding Magistrate to rely upon the evidence recorded in part by his predecessor. It is mandatory that the succeeding Magistrate has to hold a de-novo trial. 3. The Supreme Court in the cited case has held that the provisions of Sec. 326 Cr. P.C. do not apply to summary trial. It is mandatory that the succeeding Magistrate has to hold a de-novo trial. 3. The Supreme Court in the cited case has held that the provisions of Sec. 326 Cr. P.C. do not apply to summary trial. In summons, warrant and Sessions cases, where evidence is partly recorded by Judge/Magistrate, the succeeding Judge/Magistrate can proceed to record further evidence of the witness/witnesses onwards. In other words, the evidence partly recorded by the Predecessor Judge remains legal and valid and the succeeding Judge has to continue to record the further evidence from the stage which the Predecessor Magistrate has stopped. But in case of summary trial, Sec. 326 does not apply, therefore, a succeeding Magistrate cannot rely upon the evidence recorded by his Predecessor and he should afresh record the evidence of the witnesses. The Supreme Court has further held that the irregularity of the Succeeding Judge, relying upon the evidence recorded by his Predecessor is not curable U/s.465 Cr. P.C. and has directed de-novo trial. 4. The provisions of Sec. 143 of N.I. Act and Sec. 260(2) of Cr. P.C. are extracted hereinabove for convenient reference: "143. Power of Court to try cases summarily:- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Act 2 of 1974), all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of Section 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials: Provided that in the case of any conviction in a summary trial under this Section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees: Provided further that, when at the commencement of, or in the course of, a summary trial under this section, 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 said Code. (2) The trial of a case under this section shall, so far as practicable, consistently with the interests of justice, be continued from day to day until its conclusion, unless the Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded in writing. (3) Every trial under this section be conducted as expeditiously as possible and an endeavor shall be made to conclude the trial within six months from the date of filing of the complaint." Sec. 260 Cr. P.C.:- Power to try summarily: "(1) x x x x (2) When, in the course of a summary trial it appears to the Magistrate, that the nature of the case is such that it is undesirable to try it summarily, the Magistrate shall recall any witnesses who may have been examined and proceed to re-hear the case in the manner provided by this Code." 5. There appears to be glaring legislative anomaly in mandating the trials in respect of offence U/s. 138 of N.I. Act to be tried as summary cases. In fact, in practice, we do not come across any instance of any Magistrate following summary procedure in respect of summary trials. The provision of Sec. 262 Cr. P.C. declares that the procedure for trial of summons case is to be followed in every summary trial. When the procedure of summons trial is directed to be followed, necessarily the trial of offence U/s. 138 of N.I. Act will have all the trapping summons trial. Therefore, in the very provision relating to summary trials under Chapter XXI, there inheres an element of irreconcilable conflict of logic and procedural flaw. That apart, under sub-section (2) of Sec. 260 Cr. P.C., and also U/s. 143 of N.I. Act, the Magistrate is empowered to record his opinion that the nature of case does not require summary procedure to be followed and it is undesirable to try the case U/s. 138 of N.I. Act summarily, in which event, the case has to be tried as summons case. 6. P.C., and also U/s. 143 of N.I. Act, the Magistrate is empowered to record his opinion that the nature of case does not require summary procedure to be followed and it is undesirable to try the case U/s. 138 of N.I. Act summarily, in which event, the case has to be tried as summons case. 6. The provisions of Section 143 of N.I. Act further declares that the Magistrate at the commencement of or in the course of summary trial, if it appears that sentence of imprisonment for a term exceeding one year may have to be passed or it is "for any other reason" undesirable to try the case summarily and after hearing the parties, record an order to that effect and can proceed to try the case as summons case. 7. There is heavy pendency of cases filed U/s. 138 of N.I. Act in almost all the Courts over the country. The service of summons itself consumes lot of time and some times more than a year. After appearance, the evidence would commence. In the normal administrative procedure, the Magistrate get transferred from one place to other after three years and also some times premature transfers would also takes place. It is always unlikely that the Magistrate has recorded evidence would render judgment in the case. In such given practical situation, the words "for any other reason' should be given liberal interpretation and should include the circumstance of the possibility of trial not being conclude within six months and the desirability to follow the procedure of summons cases. Keeping in view the nature of long drawn contest and also the punishment of imprisonment prescribed being two years, it is, therefore, always desirable that the Magistrate should as far as possible and at the earliest, keeping in view the practical situations when the trial not likely to be concluded within six months should record his opinion that the trial of a case by summary procedure is not desirable and that the case to be tried as a summons case, in which event the legal hurdle U/s. 326 of Cr. P.C. can be overcome. However, in this case there is no order passed by the Magistrate as required under proviso 2 to sub-section (1) of Section 143 of the N.I. Act. The matter is remanded to the Magistrate for de-novo trial. Accordingly, criminal revision petition is allowed. P.C. can be overcome. However, in this case there is no order passed by the Magistrate as required under proviso 2 to sub-section (1) of Section 143 of the N.I. Act. The matter is remanded to the Magistrate for de-novo trial. Accordingly, criminal revision petition is allowed. Registry is directed to circulate this judgment to all the Lower Courts. Registry is directed to send the copy of the judgment to the Union Law Ministry to take note of the observations and to bring about necessary amendment to Section 143 of N.I. Act to declare the trials as summons trial instead of summary trials.