Kerala High Court
Indira Gandhi Memorial General ... vs M/S. Abraham Varghese And Company on 3 October, 2012
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
WEDNESDAY, THE 19TH DAY OF MARCH 2014/28TH PHALGUNA, 1935
Crl.MC.No. 3846 of 2012 ()
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AGAINST THE ORDER IN Crl.MC 3157/2012 of HIGH COURT OF KERALA
DATED 03-10-2012.
AGAINST THE ORDER DATED 22-09-2012 IN ST 216/2009 AND ST.NO.129/2010
of J.M.F.C. IV, KOTTAYAM.
PETITIONER/COMPLAINANT:-
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INDIRA GANDHI MEMORIAL GENERAL MARKETING SOCIETY LTD,
(K-900), MEENADOM P.O
KOTTAYAM REPRESENTED BYT ITS SECRETARY SHINY PHILIP
VELIYAPUNCHAL HOUSE, MEENADOM P.O, KOTTAYAM
BY ADV. SRI.M.J.THOMAS
RESPONDENTS/ACCUSED AND STATE:-
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1. M/S. ABRAHAM VARGHESE AND COMPANY,
MEENADOM, REPRESENTED BY ITS MANAGING PARTNER 686616
2. ROYS ABRAHAM,
MALIEKKAL HOUSE, MANAGING PARTNER
M/S ABRAHAM VARGHESE AND COMPANY, M MEENADOM
MALIEKKAL HOUSE, MEENADOM P.O, KOTTAYAM 686510
3. THE STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTRO
HIGH COURT OF KERALA AT ERNAKULAM
R2 BY ADV. SRI.NIRMAL V NAIR
R2 BY ADV. SRI.MANU TOM THOMAS
R3 BY PUBLIC PROSECUTOR SRI.REJI JOSEPH.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
19-03-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Kvs/-
"CR"
P.D.RAJAN, J.
= = = = = = = = = = = =
Crl.M.C.No.3846 of 2012.
= = = = = = = = = = = =
Dated this the 19th March, 2014.
J U D G M E N T
This is a petition filed under Section 482 of the Code of Criminal Procedure to quash Annexure-A4 and A8 in ST.No.216/2009 and ST.No.129/2010 of the Judicial First Class Magistrate Court-IV, Kottayam, (ST.No.216/2009 is the leading case) invoking inherent jurisdiction. Both cases were filed for offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the 'Act'). The allegation is that the accused purchased rubber from the complainant and in discharge of that liability a cheque for Rs.3,21,375/- was given and when it was presented for encashment it was dishonoured due to insufficiency of fund. Even after on issuing statutory notice there was no payment. In the above circumstance, the above cases were filed in the trial court.
Annexure-A1 and A2 are the complaint in both the cases.
2. Both cases were posted for evidence on 14.8.2012 and in view of the decision reported in Nitinbhai Crl.M.C.No.3846/2012.
2Saevatilal Shah v. Manubhai Manjibhai Panchal [2011 (3) KHC 840 (SC)] the accused requested for a de novo trial on the ground that the complaints were filed before different courts and subsequently transferred to Judicial First Class Magistrate Court-IV, Kottayam and a joint trial was allowed in ST.No.216 of 2009. The petitioner's counsel resisted the same, but in view of the above decision the trial court ordered a de novo trial. Petitioner filed an application to allow him to adduce further evidence and requested to cancel the de novo trial. In the above circumstance the complainant approached this Court to quash the order of de novo trial ordered on 14.8.2012 with this petition.
3. Section 326 of Cr.PC, it reads as follows:-
"Conviction or commitment on
evidence partly recorded by one
Magistrate and partly by another:- (1)
Whenever any Judge or Magistrate after having heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein and is succeeded by another Judge or Magistrate who has and Crl.M.C.No.3846/2012.
3who exercises such jurisdiction, the Judge or Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself:
Provided that if the succeeding Judge or Magistrate is of opinion that further examination of any of the witness whose evidence has already been recorded is necessary in the interests of justice, he may re- summon any such witness, and after such further examination, cross-examination and re- examination, if any, as he may permit, the witness shall be discharged.
(2) When a case is transferred under the provisions of this Code from one Judge to another Judge or from one Magistrate to another Magistrate, the former shall be deemed to cease to exercise jurisdiction therein, and to be succeeded by the latter, within the meaning of sub-section (1).
(3) Nothing in this section applies to
summary trials or to cases in which
proceedings have been stayed under section 322 or in which proceedings have been submitted to a superior Magistrate under section 325."
The learned counsel appearing for the petitioner contended that the procedure for summons trial was followed in this case, in such circumstance it is the discretion of the learned Magistrate to start a de novo trial. No circumstances are Crl.M.C.No.3846/2012.
4explained in Annexure-A4 for ordering the de novo trial.
But the learned counsel appearing for the respondent strongly resisted the contention and contended that according to Section 143 of the Act, all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate summarily and the provisions of Section 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials. The proviso also says that if any summary trial under such section is ordered, it is for the Magistrate to consider and pass orders for a term not exceeding one year and an amount of fine exceeding five thousand rupees. Therefore, no necessity to interfere in Annexure-A4 and A8.
4. Section 143 of the NI Act reads as follows:
"Power of Court to try cases
summarily:- (1) Notwithstanding anything
contained in the Code of Criminal Procedure, 1973 (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 sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials:
Crl.M.C.No.3846/2012.5
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 shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint."
It is clear that if the Magistrate adopted summary trial procedure he has to follow the procedure under Section 262 Crl.M.C.No.3846/2012.
6to 265. The words 'as far as may be' used in Sec.143 gives discretion to the Magistrate to follow a summary trial or summons trial. This Court in Kannan v. Narayana Swami (2012 (4) KLT 737) held that, the Magistrate is vested with the discretion either to follow a summary trial or summons trial in paragraphs 5 and 6 which reads as follows:
"5. Whether the aforesaid section commencing with a non obstante clause mandates trial of the offence under S.138 of the N.I.Act summarily, or is it only an empowerment of the magistrate to try such offence even summarily, enabling him to do so, is the question to be examined. The marginal heading of the Section states of the empowerment of the court to try the cases summarily. Sub-s.(1) of that Section mandates that the offences under the Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate . In the trial of the case for such offence it is stated the provisions of Ss.262 to 265. both inclusive, of the Code of Criminal Procedure shall 'as far as may be' applied. Is there any significance for the words 'as far as may be' which is added to while providing for a trial following the provisions of Ss.262 to 265 of the Code? That has to be looked into with reference to the aforesaid sections.S.262 of the Code governs the procedure for summary trial. Sub-s.
(1) of that section states that the procedure for trial of a summons case has to be followed with the exceptions mentioned in the following sections under Chap.XXI. Under the Code when Crl.M.C.No.3846/2012.7
an offence is tried summarily on conviction the maximum sentence of imprisonment can be only three months. But with respect to the offence under Se.138 of the N.I.Act, even if such offence is tried summarily, the magistrate is competent to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding the limit fixed under S.29 of the Code. Code contemplates of summary trial in petty offences for which the maximum punishment that can be imposed is only three months. Speedy trial of such petty offences enabling the magistrate to record the substance of the evidence, dispensing with recording of evidence as in a regular trial, is provided for in petty cases. However, sub-s.(2) of S.260 of the Code makes it abundantly clear that during the course of such summary trial in a petty case if it appears to the magistrate that it is undesirable to try the case summarily he shall recall the witness already examined and proceed to rehear the case in the manner provided by the Code. So much so, even in a petty case which could be tried summarily the magistrate if it appears that such trial is undesirable, can switch over to other procedure provided by the Code. So much so, even in cases commenced as summary trial the Code empowers to switch over to a different procedure provided. The phraseology 'as far as may be' used in S.143 makes it abundantly clear that the magistrate is not bound to follow the procedure for summary trial and he has a discretion to follow it or not. Second proviso to sub-s.(1) of S.143 of the N.I.Act empowers a Magistrate even in a case which has been commenced in a summary manner, to recall any witness already examined or rehear the case in the manner provided by the Code. What is Crl.M.C.No.3846/2012.
8required is only a primary satisfaction of the magistrate that the nature of the case is such that a sentence for punishment for a term of one year may have to be passed, or, for any other reason it is undesirable to try the case summarily. Only requirement on arriving of such satisfaction to switch over to a different procedure provided under the Code from summary trial already proceeded is recording of an order thereof by the magistrate. The non obstante clause under sub-s.(1) of S.143 of the Act enabling the magistrate to try the offence following the provisions under Ss.262 to 265 of the Code though the punishment for such offence on conviction overrides the interdiction under sub-s.(2)S.262 of the Code has necessarily to be examined with reference to the words 'as far as may be' which clearly makes out that there is discretion to the magistrate whether to follow summary trial or to proceed with trial for the offence as in a summons case. The aforesaid words 'as far as may be' makes it clear that it is not mandatory for the Magistrate to follow the procedure for summary trial as contemplated under S.262 to 265 of the Code in the trial of the offence under S.138 of the N.I.Act.
6. Both sides concede that the two cases were tried following the procedure in a summons case and not by summary trial as under the provisions of Chap.XXI of the Code. When such be the case, continuation of the trial of the case with the evidence recorded by the predecessor magistrate, and disposal of the cases by the successor magistrate will not be in any way vitiated. An offence under S.138 of the N.I.Act can be tried only summarily, but, not in a different manner provided by the Code is not the Crl.M.C.No.3846/2012.
9purport of S.143 of the N.I.Act. That Section only empowers the magistrate to try such offence summarily following the procedure applicable to a petty case as far as practicable. The Apex Court in Nitinbhai Saevatilal Shah's Case referred to above has not expressed any view that the offence under S.138 of the N.I.Act can be tried only summarily. In fact the head note of that decision is misleading with a statement tht 'cheque cases are to be tried summarily'. No such expression is found in the discussion made by the Apex Court in paragraph 9 to 16 of that decision. Moreover it is seen that the Apex Court considered and rendered the aforesaid decision in a case for the offence under Sec.138 of the N.I.Act which was captioned as a summary case. That is evident from paragraph 6 of the judgment which is indicative that summary trial was followed by the Magistrate in that case. The decision made by the Apex Court in Paragraph 14 of that decision spells out what was considered was a case summarily tried by the magistrate. Punishment provided by the trial court also to some extent indicates that the case was tried by the magistrate summarily. Whatever that be, the Apex Court in the aforesaid reported decision has not laid down any binding principle to be followed that cheque cases involving the offence under S.138 of the N.I.Act have to be tried only summarily. What could be the effect when an offence is tried summarily was considered in the aforesaid decision with reference to a case involving the offence under S.138 of the N.I.Act, which had been tried as a summary case. Whether a magistrate can try an offence under S.138 of the N.I.Act otherwise than by a summary trial, with reference to S.143 of the Negotiable Instruments Crl.M.C.No.3846/2012.
10Act, was not the issue, nor projected for consideration, before the Apex Court in the aforesaid decision. So much so, the head note given 'cheque cases are to be tried summarily' which is not in any way supported by the discussion of the Apex Court in the decision hs to be treated only as a misnomer. Another reported decision rendered by this court, namely, Balan's case, referred to above, following the decision of the Apex Court, relied by counsel for petitioner, was also rendered in a case, as seen from the judgment, where the magistrate had adopted the procedure prescribed for summary trial (paragraph 7). Where the procedure adopted by the magistrate is one of summary trial then of course the decision rendered by the Apex Court has to be followed; but, in other cases where trial proceeded as in as summons case no reliance can be placed on the aforesaid decision of the Apex Court to seek for a de novo trial on transfer of presiding officer in the midst of trial."
The Apex Court in Nitinbhai Saevatilal Shah v.
Manubhai Manjibhai Panchal [2011(3) KHC 840 (SC)] held, that transfer of the Magistrate who had heard and recorded the whole of evidence, the successor Magistrate has no authority to proceed with the trial from a stage at which his predecessor has left it. The Magistrate has to try the case de novo. The scope and ambit of 326 (1) & (3) Cr.PC was discussed by this Court in K.Jayachandran Crl.M.C.No.3846/2012.
11v. O.Nargeese (1987 Crl.LJ 1997) and held as follows:
"5.The provision has to be interpreted in the background of the legislative intent to avoid delays in the trial and disposal of cases and also to avoid prejudice to the accused. In this connection it is worth remembering that even though the procedure for trial in summons cases and summary trial cases is practically the same, the legislature in its wisdom did not think it fit to exclude summons trial cases from the purview of S.326(1). What is excluded is only 'summary trials' and not cases that could be tried in a summary way. That means cases tried under the provisions of Chap.XXI alone are intended to be excluded. This is a case in which judgment was not pronounced and therefore the only evidence available to decide what procedure was actually followed by the Magistrate is the procedure adopted by him in the trial of the case. No record was maintained under S.263 of the Code. If actually trial was under Chap.XXI there must have been a register under S.263 in which items
(a) to (g) mentioned therein ought to have been entered. So also in cases tried in a summary way the Magistrate is bound to record only a substance of the evidence of witnesses, but in this case the entire evidence of all the witnesses was recorded in full. The fact that after hearing the case the Magistrate reserved judgment also, though not conclusively, establishes that he wanted to write a considered judgment on analysing the evidence recorded in full on both sides. Thus the records show that trial was conducted under Chap.XX relating to trial of Summons Cases and not under Chap.XXI relating to Summary trials.
Crl.M.C.No.3846/2012.
126. When in the interest of expediency in disposal of cases the legislature did not want to exclude any other case including Summons Cases from the operation of S.326(1), the exclusion of Summary trial could only be on account of the possible prejudice to the accused and the difficulty of the successor Magistrate in deciding the case fairly and properly with the evidence on record. This prejudice and difficulty could only be on account of the fact that under S.264 the Magistrate need only record the substance of the evidence. From the substance of the evidence so recorded, the person who recorded the same could have had a full and complete picture because he had the advantage of hearing the evidence in full and seeing the witness in the box as well as forming an opinion. These advantages may not be there to the successor and he could gather information only from the substance of the evidence before him. That may be the reason why summary trials alone were excluded from the proviso of S.326(1) while summons cases and other serious trials are not excluded. If that is the position, the possibility of that prejudice to the accused or the difficulty of the successor are not there in this case since the evidence was recorded in full. In construing S.326(3) we are more concerned with the substance than with the form. If in substance the case was not tried in a summary way but as a regular summons case it cannot, come within the exclusion of 'Summary Trials' because cases tried in a summary way alone could come under 'Summary Trials', Cases though titled as Summary Trial Cases but not tried as such cannot come within the exclusion because the object and purpose of the provision is not to exclude any case tried in the ordinary Crl.M.C.No.3846/2012.
13way namely, summons cases, warrant cases instituted on police report and warrant cases instituted otherwise than on police report, which are the only other types of cases coming up before Magistrates. In this connection S.274 of the Code authorising the Magistrate to make a memorandum of the substance of the evidence of witnesses in certain proceedings including trial of Summons Cases is of no avail because it is clear from S.326 itself that the memorandum of the substance of the evidence recorded could be made use of by the successor also as held in 1969 Crl.L.J. 711. What is stated in S.264 is only substance of the 'evidence' whereas what is stated in S.274 is 'memorandum of the substance of the evidence'. That memorandum could be used by the successor was not a moot point also. Even such a memorandum is not necessary in a summary trial.
7. What S.326(1) has done is only authorising the successor to act on the evidence partly or wholly recorded by the predecessor. In this respect also discretion is given to the successor, in the interest of justice, to re- summon and examine any witness already examined. I do not think that in this case the Magistrate was entitled to anything more than what S.326(1) provides because even though the case was numbered as an S.T. case the witnesses were examined and the evidence was recorded in full as if it was a summons case not tried in a summary way. Section 329 of the Code authorises conversion of a summons case into a warrant case even in the course of trial. Trial in a summary way by certain categories of Magistrates specified in S.260 is only discretionary and that procedure need be Crl.M.C.No.3846/2012.
14adopted only if the Magistrate thinks fit to do so. So also S.260(2) authorises the Magistrate during trial in a summary way to recall the witnesses and proceed to rehear the case in the manner provided by the Code if it appears to him that it is desirable to do so. Only certain categories of cases are allowed to be tried in a summary was and even in such cases it is for the Magistrate to consider whether the summary procedure would be appropriate to the case or not. Normally summary procedure should be confined to cases of simple nature where much evidence is not needed and which are not hotly contested."
5. Considering the above legal preposition it is clear that the trial Magistrate had recorded the evidence of Pw1 following summons trial and thereafter he was transferred from his office. When a new Magistrate has took charge remitted the case to de novo trial. When the case is not tried in a summary manner, the provisions of Sec.326(1) are squarely applicable in this case. The only reason stated by the second respondent is that since it is a case under Sec.138 of the NI Act based upon a special statute, it will give privilege than the general statute and the trial can be only summary. I cannot agree with that ratio since summons trial was ordered and adopted it cannot be changed Crl.M.C.No.3846/2012.
15into another way in the midst of the trial. Therefore half summons trial and half summary trial is not possible in a criminal case. The Magistrate has to either follow the procedure in a summons trial or follow the summary trial.
If summons trial is ordered, the Magistrate shall complete the trial according to that procedure. Since the procedure of summons trial is adopted there is no question of getting the benefit of the exception of Sec.326(3) Cr.PC.
6. The evidence recorded by his predecessors were following the procedure of summons trial and in the interest of justice, it has to be followed till the end. The ordeal of a retrial will only harass the accused and the de facto complainant, and unnecessary retrial will be at any rate not entertainable, which amounts to abuse of process. The learned Magistrate ignoring that statutory responsibility ordered de novo trial by virtue of Annexure-A4 and declined to interfere by virtue of order in Annexure-A8. Therefore, I quash Annexure-A4 and A8. The Magistrate is directed to dispose the case according to the evidence already in Crl.M.C.No.3846/2012.
16record subject to the provision under Sec.326(1) and the proviso thereto.
7. The second respondent accused contended that Exts.B19 to B23 were marked in the trial court not in his presence. He seeks to cross examine Pw1 to that limited purpose. Considering that submission, I am of the opinion that if any application is made by the learned counsel for the accused in the trial court, the learned Magistrate shall consider that application and dispose the matter in accordance with law after giving opportunity to both parties at any rate within a period of six months from the date of receipt of this judgment.
Crl.MC is disposed of as above.
P.D.RAJAN, (Judge) Kvs/-