Kerala High Court
C.Balan vs N.P.Preetha on 29 November, 2011
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
TUESDAY, THE 31ST DAY OF JANUARY 2012/11TH MAGHA,1933
CRA.No. 2062 of 2011 ( )
------------------------
AGAINST THE ORDER/JUDGMENT IN CRLP.986/2011 DATED 29-11-2011
STC.12515/2008 of J.M.F.C.-III,KANNUR
APPELLANT/COMPLAINANT:
------------------------
C.BALAN, S/O. LATE KUNHIRAMAN,
SHEELALAYA, PURAKKALAM, P.O.KUTHUPARAMBA
KANNUR.
BY ADV. SRI.P.P.RAMACHANDRAN
RESPONDENTS/ACCUSED:
----------------------
1. N.P.PREETHA,
PUNATHIL, L.S.PURAM, NEAR KODIYERI PANCHAYATH
OFFICE, KODIYERI, THALASSERY-670.
2. STATE OF KERALA, REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA
ERNAKULAM-682 018.
R1 BY SRI.P.M.HABEEB
R2 BY PUBLIC PROSECUTOR SMT.S.HYMA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31-01-
2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
V.K.MOHANAN, J.
-------------------------------
Crl.A.No.2062 of 2011
-------------------------------
Dated this the 31st day of January, 2012.
J U D G M E N T
The complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant since he is aggrieved by the judgment dated 5.8.2011 in S.T.C.No.12515 of 2008 of the court of Judicial First Class Magistrate-III, Kannur, by which the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C.
2. The case of the complainant is that, the accused borrowed a total sum of Rs.5 lakhs from the complainant during the month of August 2006 and issued a post dated cheque dated 9.10.2006 towards the discharge of the said liability and when the said cheque presented for encashment, the same was returned dishonoured for the reason, 'funds insufficient' in the account maintained by 2 Crl.A.No.2062 of 2011 the accused and the accused has not repaid the dishonoured cheque amount, inspite of the statutory notice served on the accused and thus according to the complainant, the accused has committed offence punishable under section 138 of the N.I.Act.
3. With the above allegation, by filing a complaint, the complainant approached the court of Judicial First Class Magistrate-I, Kannur, wherein cognizance was taken and instituted S.T.C.No.269 of 2007 and subsequently, when the accused appeared before the court in pursuance to the process issued, the plea of the accused was recorded. Subsequently, the trial was proceeded further and the complainant was examined as PW1 and Exts.P1 to P5 were marked. After closing the prosecution evidence, the accused was examined under section 313 of Cr.P.C. and accordingly, her statement was recorded under Section 313. That being the procedural position of the trial, the case was made over to the court of Judicial First Class Magistrate-III, Kannur, where the trial of the case was resumed and started defence 3 Crl.A.No.2062 of 2011 evidence, during which DW1 was examined and Exts.C1, C1
(a) and C1(b) were marked. Finally, the present trial court after having considered the evidence and materials, came into a conclusion that accused has not committed the offence punishable under Section 138 of the N.I.Act and accordingly she is acquitted under section 255(1) of Cr.P.C. It is the above judgment of the trial court and the findings and order of acquittal that are challenged in this appeal.
4. I have heard Sri.P.P.Ramachandran and Sri.P.M.Habeeb, learned counsels for the appellant and the respondent respectively, and I have also perused the judgment of the trial court.
5. Without going into the merits of the case, the learned counsel for the appellant, after having invited my attention to Section 326(3) of Cr.P.C., and especially in the light of the decision of the Honourable Apex Court reported in Nitinbhai Saevatilal Shah and another Vs. Manubhai Manjibhai Panchal and another (2011(3) KHC 840) submitted that, the matter requires reconsideration by the 4 Crl.A.No.2062 of 2011 trial court after remanding the same, as the proceedings adopted by the trial court vitiated the findings. On the other hand, the learned counsel for the respondent submitted that the decision relied on by the counsel for the appellant is applicable only in case the accused is prejudiced due to the non-compliance of the procedure prescribed under section 326(3) of Cr.P.C. but in this case, the respondent/accused has no such grievance.
6. I have carefully considered the arguments advanced by the learned counsel for the appellant and the respondent. I have also perused the judgment of the trial court and carefully gone through the decision of the Honourable Apex Court cited supra.
7. It is beyond dispute that, cognizance for the offence punishable under section 138 of the N.I.Act based upon the complaint preferred by the appellant, was taken by the learned Magistrate of the court of Judicial First Class Magistrate-I, Kannur, wherein S.T.C.No.269 of 2007 was instituted and the case was further proceeded, by adopting 5 Crl.A.No.2062 of 2011 the procedure prescribed for summary trial. While so, the above case was made over to the present trial court, after the stage of recording the 313 statement of the accused and in the present trial court the trial was resumed by recording the defence evidence. In effect, the prosecution evidence was recorded by the learned Magistrate of the original court and the defence evidence is recorded by another learned Magistrate of the present trial court. Section 326 of Cr.P.C. envisages about the conviction or commitment of a case, when the evidence was partly recorded by one Magistrate and partly by another Magistrate. The said section prescribes various procedures to be followed under the situation contemplated therein. But Sub Section 3 of Section 326 of Cr.P.C., in an unequivocal language declares that the procedure prescribed in Section 326 of Cr.P.C. is not applicable to summary trial of the category of cases mentioned in that sub section. If that be so, the procedure adopted in this case cannot be legally recognised and therefore the findings and the order of acquittal recorded by 6 Crl.A.No.2062 of 2011 the trial court is liable to be set aside. In the decision of the Honourable Apex Court cited supra, particularly in paragraph 14 it has held as follows :-
"The mandatory language in which Section 326(3) is couched, leaves no manner of doubt that when a case is tried as a summary case a Magistrate, who succeeds the Magistrate who had recorded the part or whole of the evidence, cannot act on the evidence so recorded by his predecessor. In summary proceedings, the successor Judge or Magistrate has no authority to proceed with the trial from a stage at which his predecessor has left it. The reason why the provisions of sub-section (1) and (2) of Section 326 of the Code have not been made applicable to summary trials is that in summary trials only substance of evidence has to be recorded. The Court does not record the entire statement of witness. Therefore, the Judge or the Magistrate who has recorded such substance of evidence is in a position to appreciate the evidence led before him and the successor Judge or Magistrate cannot appreciate the evidence only on basis of evidence recorded by his predecessor. Section 326 (3) of the Code does not permit the Magistrate to act upon the substance of the evidence recorded by his predecessor, the obvious reason being that if succeeding Judge is permitted to rely upon the substance of the evidence recorded by his predecessor, there will be a serious prejudice to the accused and indeed, it would be difficult for a succeeding Magistrate himself to decide the matter effectively and to do substantial justice."
The Honourable Apex Court by the above judgment, after setting aside the judgment impugned therein, remanded the matter to the Magistrate court for re-trial in accordance with 7 Crl.A.No.2062 of 2011 law.
8. The learned counsel for the respondent submitted that the procedure contemplated in the above section need to follow only when the accused is prejudiced. In support of his submission the learned counsel invited my attention to the last portion of paragraph 14 of the decision cited supra, which reads as follows :
"..............Section 326(3) of the Code does not permit the Magistrate to act upon the substance of the evidence recorded by his predecessor, the obvious reason being that if succeeding Judge is permitted to rely upon the substance of the evidence recorded by his predecessor, there will be a serious prejudice to the accused.........."
But the learned counsel for the appellant after inviting my attention to paragraph 15 of the very same decision, it is submitted that the procedure prescribed under section 326 are not based upon any criteria, ie., 'any of the parties be prejudiced or not'. But it is strictly a procedural formality to be complied with by the trial court in the matter of administration of criminal justice. According to the learned counsel for the appellant, as per the facts and circumstances 8 Crl.A.No.2062 of 2011 involved in the case cited supra, though the High Court placed reliance upon the agreement executed between the complainant and the accused therein, whereby the accused has expressed his no-objection in deciding the matter after taking into consideration the evidence already recorded, the Honourable Apex Court was not inclined to approve such plea and directed for a strict compliance of the procedure.
9. It is true, as pointed out by the counsel for the respondent, in para 16 of the above judgment it is held that, "the cardinal principal of law in a criminal trial is that it is a right of an accused that his case should be decided by a Judge who has heard the whole of it." On a reading of Section 326 it can be seen that, the succeeding Magistrate or the Judge can act on the evidence so recorded by his predecessor or partly recorded by his predecessor and partly recorded by himself. It is also relevant to note that, the proviso to Sub Section 1 of Section 326 gives discretionary power to the succeeding Judge or the Magistrate for further examination of any of the witness, whose evidence has 9 Crl.A.No.2062 of 2011 already been recorded, if necessary in the interest of justice to re-examine such a witness and after cross examination, re-examination was done according to the discretion of such Preceding Officer of the court. Thus the interest of the prosecution as well as defence can be saved by invoking those provisions. From para 16 of the above decision, it is crystal clear that the cardinal principal of law in a criminal trial, especially when the right of the accused that his case should be decided by a Judge who has heard the whole of it, was being rigorously applied prior to the enactment of Section 350 in the 1898 Code and Section 326 of the New Code deals with what intended to be dealt with by Section 350 of the old Code. However, as per the Sub Section 3 of Section 326, the trial of summary cases are excluded from the purview of Section 326(1) and its proviso. Therefore, according to me, as held by the Honourable Apex Court in the above decision, except with respect to those cases which fall within the ambit of Section 326 of the Code, the Magistrate in a summary trial cannot proceed with the case 10 Crl.A.No.2062 of 2011 placing reliance on the evidence recorded by his predecessor and he has to undertake de novo trial of the case. Having regard to the facts and circumstances involved in the case, especially in the light of the fact that the case was transferred to the present trial court, after the stage of 313 proceedings from the other court, according to me, in the light of the above decision and in view of section 326(3) of Cr.P.C., the impugned judgment will not sustain and the matter requires de novo consideration by the trial court.
In the result, this appeal is disposed of setting aside the judgment dated 5.8.2011 in S.T.C.No.12515 of 2008 of the court of Judicial First Class Magistrate-III, Kannur, and remanded the matter back to the trial court for a fresh disposal of the above case after a de novo trial. Accordingly, the learned Magistrate is directed to restore S.T.C.No.12515 of 2008 on its file on 1.3.2012, on which date both the appellant and the respondent, who are the complainant and accused, are directed to appear before the trial court and the learned Magistrate is directed to expedite the trial of the 11 Crl.A.No.2062 of 2011 case and dispose of the same, as early as possible, at any rate within a period of 6 months from the date of appearance of the appellant.
The Registry is directed to transmit the L.C.R. and the copy of this judgment forthwith, to the trial court.
V.K.MOHANAN, Judge ami/