Himachal Pradesh High Court
Vikas Sharma vs Vishant Bali R on 8 December, 2020
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
.
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr.MMO No. 359 of 2019
Date of Decision 8th December, 2020
_______________________________________________________________
Vikas Sharma ...Petitioner
Versus
Vishant Bali r .... Respondent
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, J.
Whether approved for reporting? Yes ______________________________________________________________ For the Petitioner: Mr. Mukul Sood, Advocate.
For the Respondent: Mr. Sanjeev K. Suri, Advocate. __________________________________________________________________ Vivek Singh Thakur, J.
Present petition has been filed assailing the impugned order dated 8.4.2019 passed by Additional Chief Judicial Magistrate-I, Amb, District Una, whereby an application, filed on behalf of accused/petitioner under ::: Downloaded on - 09/12/2020 20:18:19 :::HCHP 2 Section 145(2) of Negotiable Instrument Act ('NI Act' in short), has been dismissed.
.
2 I have heard learned counsel for the parties and have also gone through the record.
3. It is evident from the record that the petitioner/accused was summoned by the trial Court on the basis of statements/affidavit filed by and on behalf of complainant/respondent and after receiving the notice from the trial Court, petitioner/accused had appeared in the Court on 6.12.2017.
4. On 27.8.2018, before putting Notice of Accusation, time, as prayed for, was granted to the petitioner/accused by the trial Court for filing an application under Section 145 of NI Act and the application, so filed, was dismissed vide impugned order passed on 8.4.2019, rejecting the request of petitioner/accused to summon and examine the witnesses, whose affidavits have been filed by the respondent/complainant in support of his case.
::: Downloaded on - 09/12/2020 20:18:19 :::HCHP 35 Point, raised by petitioner in the present petition, is that in an application, filed by the accused or .
prosecution under Section 145(2) of NI Act for summoning and examining any person giving the evidence on affidavit, the Court has no discretion to refuse to summon and examine such person as to the facts contained in the affidavit filed by the said person. To substantiate his plea, judgment pronounced by the Apex Court in Mandvi Cooperative Bank Ltd. vs. Nimesh B. Thakore reported in (2010)3 SCC 83, has been referred.
6 On perusal of record of the trial Court, it is noticed that the trial Judge has also ventured in discussing the merits of case on the basis of plea taken by accused in the application, despite the fact that there was no occasion to discuss the same at this stage that too in an application filed under Section 145(2) of NI Act.
7. Besides above, it is also noticed that on 27.08.2018 on request of accused, without resorting to ::: Downloaded on - 09/12/2020 20:18:19 :::HCHP 4 record substance of accusation or putting Notice of Accusation or framing the charge, and recording response .
of accused thereto, the Magistrate had granted time to the accused to file an application under Section 145 of Negotiable Instrument Act that too without giving an opportunity to the complainant to file/lead any further evidence, if any, which he would have intended to bring on record after commencement of trial. For discussion hereinafter, I am of considered view that on this count trial Court has committed a mistake of law.
8. Section 145 of Negotiable Instrument Act reads as under:-
"Section 145 of Negotiable Instruments Act 1881:
"Evidence on affidavit"
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code.
::: Downloaded on - 09/12/2020 20:18:19 :::HCHP 5(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person .
giving evidence on affidavit as to the facts contained therein."
9 On the issue, raised in this case, the Apex Court in Mandvi Cooperative Bank's case, has held that two words i.e. 'may' and 'shall' in Section 145(2) NI Act have been used by the Legislature with reference to the 'Court' and with reference to the 'prosecution or accused' respectively and therefore, it is beyond doubt that in the event of an application made by the prosecution or accused, the Court would be obliged to summon the person giving evidence on affidavit in terms of Section 145(1) of NI Act without having any discretion in the matter and therefore, if an application is made under Section 145(2) of NI Act either by prosecution or by the accused, the Court must call the person, who has given evidence on affidavit, for examining him again as to the facts contained therein. Intention of Legislature, in this regard, is very clear as the Legislature has used two ::: Downloaded on - 09/12/2020 20:18:19 :::HCHP 6 distinct and different words i.e. 'may' and 'shall' for two different situations and it is not made mandatory for the .
Court to summon and examine the persons filing the affidavit in all eventuality, but a discretion has been given to the Court to call such witnesses, if Court feels it necessary, but in the case of application filed by 'prosecution' or 'accused', by using word 'shall', it has been made mandatory to summon and examine such person.
10 Learned Magistrate has failed to consider that fair trial to the accused, particularly in those proceedings where the accused has to suffer severe consequences, always remained paramount consideration of the Legislature and judiciary. For that reason only, Legislature by using word 'shall' in Section 145(2) of NI Act has casted a mandatory duty upon the Court to call the witness(es) for examination/cross-examination on the application of prosecution or accused.
::: Downloaded on - 09/12/2020 20:18:19 :::HCHP 711 In view of bare provision of Section 145(2) of NI Act and law laid down by the Apex Court, the trial .
Court has committed an illegality in dismissing the application filed by the petitioner/accused.
12. In present case, there is another issue which requires consideration. Application under Section 145 of NI Act was entertained at wrong stage whereas such application is permissible after closure of or during leading of evidence of complainant, at a stage when complainant would have been given opportunity to lead and complete his evidence after recording substance of accusation or putting notice of accusation or framing of charge but not before that. Therefore, the application should not have been permitted to be filed at wrong stage and in any case, if it had been permitted to be filed at wrong stage, then the same should have been kept pending for consideration at appropriate stage. It would be clear from discussions recorded hereinafter. This Court has already decided a similar case but keeping in view repetition of ::: Downloaded on - 09/12/2020 20:18:19 :::HCHP 8 similar mistake by the Magistrate, it has become imperative to repeat discussions contained in previous .
case Cr.MMO No. 82 of 2019 titled Pardeep Verma vs. Budh Dev Kalia.
13. The Supreme Court in Mandvi Cooperative Bank Ltd. Case (referred supra) has also observed that it is not difficult to see that Sections 143 to 147 lay down a kind of a special code for the trial of offences under Chapter XVII of NI Act and these Sections were inserted in the Act by Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 to do away with all stages and processes in a regular criminal trial which normally cause inordinate delay in its conclusion and also to make the trial procedure as expeditious as possible without, in any way, compromising on the right of accused for a fair trial. Therefore, right of the accused for having a fair trial can never be ignored by any Court particularly where it leads to curtailment of personal liberty.
::: Downloaded on - 09/12/2020 20:18:19 :::HCHP 914 Considering its own judgments passed in Mandvi Cooperative Bank Ltd. And J.V. Baharuni's .
cases along with various other judgments, object of introducing Chapter XVII in the NI Act and the scheme to be followed by the Magistrate in a case thereunder has also been discussed and explained by the Apex Court in judgment rendered in Meters and Instruments Private Ltd. and another vs. Kanchan Mehta reported in (2018)1 SCC 560, which is the basis for findings rendered hereinafter.
15. The Apex Court, in Omparkash Shivprakash vs. K.I. Kuriakose and others reported in (1999)8 SCC 633, while dealing with similar provision of Section 16-A of the Prevention of Food Adulteration Act 1954, empowering the Judicial Magistrate of first Class to try the offence under Section 16(1) of the said Act in summary way, has observed that Chapter XXI of Cr.P.C deals with summary trial wherein Section 262 Cr.P.C.
provides that procedure, specified for trial of summons ::: Downloaded on - 09/12/2020 20:18:19 :::HCHP 10 cases, shall be followed for summary trial, but subject to some variations as necessary keeping in view provisions .
of special Code dealing with the case, and Chapter XX of Cr.P.C. is titled as "Trials of summons cases by Magistrates" wherein Section 251 of Cr.P.C. is a commencing provision which requires that on appearance of accused or bringing him before the Magistrate, the particulars of offence shall be stated to him and he shall be asked whether he pleads guilty or not and therefore, it has been held that if the Magistrate opts to hold summary trial, 'trial' of offence under the said Act begins when the Magistrate asks the accused whether he pleads guilty or not as envisaged in Section 251 of the Code. It is further held that evidence in a 'trial' can be adduced only after recording the plea of accused as envisaged in the said Section.
16 Similarly, Section 143 of NI Act empowers the Court to try the cases summarily by applying Sections 262 to 265 (both inclusive) of Cr.P.C. 'as far as may be' ::: Downloaded on - 09/12/2020 20:18:19 :::HCHP 11 applicable. In view of provisions of Section 262 Cr.P.C., procedure for trial of summons case, as provided in .
Sections 251 to 259 Cr.P.C. contained in Chapter XX of Cr.P.C., is to be followed in summary trial with variations keeping in view provisions of Sections 263 to 265 Cr.P.C.
and in trial under NI Act, it shall be subject to further variations in consonance with provisions of NI Act.
Section 251 Cr.P.C. provides that immediately on appearance of accused before the Magistrate, the particulars of the offence, of which he is accused, shall be stated to him and he shall be asked whether he pleads guilty or has any defence to make, but it would not be necessary to frame a formal charge. Therefore, trial in case of summary trial under NI Act shall also commence after asking the accused as to whether he pleads guilty or has any defence to make as envisaged in Section 251 Cr.P.C. In case of regular trial, other than summary trial and summons case trial, trial shall begin on framing of ::: Downloaded on - 09/12/2020 20:18:19 :::HCHP 12 charge under provisions contained in Chapter XVII of the Cr.P.C.
.
17 Procedure of Section 262 of Cr.P.C. provides that in summary trial, procedure specified in Cr.P.C. for trial of summons case shall be followed except as provided in Sections 263 to 265 Cr.P.C. Section 263 Cr.P.C.
provides the manner in which record in summary trial is to be maintained and in it Section 263 (f) of Cr.P.C.
provides that after entering the necessary information as envisaged to Section 263(a) to 263 (e), the Magistrate has to record the offence complained of and the offence (if any), proved and thereafter to record the plea of accused and his examination, (if any), and then to record the findings and sentence or other final order with date on which the case terminated, whereas Section 264 Cr.P.C. provides that 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 ::: Downloaded on - 09/12/2020 20:18:19 :::HCHP 13 the finding. Therefore, as also held by the Apex Court in J.V. Baharuni's and Meters and Instruments Private .
Ltd.'s cases, the Magistrate is not expected to record evidence in a summary trial which he would have been, otherwise, required to record in a regular trial but to record substance of evidence and his judgment should also contain a brief statement of reasons for findings and not elaborated reasons which otherwise he would have been required to record in regular trials. Section 143 of NI Act further qualifies that provision of Sections 262 to 265 of Cr.P.C. shall apply to summary trials under NI Act 'as far as may be'. Therefore, provisions of Sections 262 to 265 Cr.P.C. are to be applied with variation so as to follow the procedure adhering to provisions of NI Act.
18. Sub-section (2) of Section 262 Cr.P.C. provides that no sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under Chapter XXI of Cr.P.C. But provisions of first proviso to Section 143 of NI Act empowers the ::: Downloaded on - 09/12/2020 20:18:19 :::HCHP 14 Magistrate to pass a sentence of imprisonment upto one year and an amount of fine exceeding Rs.5000/- on .
conviction in a summary trial. Therefore, limit to impose the sentence as provided under Section 262 (2) of Cr.P.C.
is not applicable in the summary trial under NI Act but it shall be governed by second proviso of Section 143 of NI Act.
19. Second proviso to Section 143 of NI Act also empowers the Magistrate, if it appears to him, keeping the nature of case, that a sentence of imprisonment for a term exceeding the term provided under first proviso may have to be passed or that, for any other reason, it is undesirable to try the case summarily, to recall the witness who may have been examined and to proceed to hear or re-hear the case in the manner provided by the Cr.P.C. but after hearing the parties and recording the order to that effect. It gives discretion to the Magistrate either to proceed summarily or otherwise for a regular ::: Downloaded on - 09/12/2020 20:18:19 :::HCHP 15 trial, as warranted in the facts and circumstances of the case.
.
20. Referring Mandvi Cooperative Bank Ltd.'s case the Apex Court in, J.V. Baharuni's and Meters and Instruments Private Ltd.'s cases (supra) has further observed that procedure of summary trials, to be adopted under Section 143 of NI Act, is subject to the qualification 'as far as possible' and it leaves sufficient flexibility of a procedure to be adopted by the Magistrate so as not to affect the quick flow of trial process and therefore Section 143 of NI Act coupled with the provisions of Section 145 of NI Act allows for the evidence of complainant to be given on affidavit in any inquiry, trial or other proceedings under the Cr.P.C. Section 2(g) of Cr.P.C. defines that inquiry means every inquiry other than a trial, conducted under Cr.P.C. by the Magistrate or the Court. Trial has not been defined anywhere in Cr.P.C.
As held by the Apex Court in Omparkash's case for the purpose of present case, if Magistrate decides to try the ::: Downloaded on - 09/12/2020 20:18:19 :::HCHP 16 case as summary trial or summons case trial then it has to commence on production or presence of accused .
under Section 251 Cr.P.C. on recording substance of accusation or putting Notice of Accusation to the accused as the case may be and proceedings before that are inquiry by the Magistrate.
21. Section 145 of NI Act provides filing of evidence of complainant on affidavit with further provision that the said evidence may, subject to all just exceptions, be led in evidence in any inquiry, trial or other proceedings under the Cr.P.C. Therefore, in a case under Section 138 of NI Act, the Magistrate is empowered to accept the evidence of complainant on affidavit even before the commencing of trial during its preliminary inquiry at the time of taking the cognizance of the offence under NI Act. The rider that the said affidavit shall be subject to all just exceptions means that the evidence, so filed on affidavit, shall be evidence 'admissible' under the Indian Evidence Act and further provision for reading ::: Downloaded on - 09/12/2020 20:18:19 :::HCHP 17 the said affidavit in evidence in any inquiry, trial or other proceedings empowers the Magistrate not to ask for fresh .
affidavit on or after commencing of trial but to read the same affidavit in evidence again after the commencement of trial if the accused does not plead guilty.
22. Section 145(2) of NI Act provides for summoning and examining any person giving evidence on affidavit as to facts contained therein, if the Courts think fit to do so or on application of prosecution or the accused. In NI Act there is a slight departure to the procedure provided for a summary trial in Cr.P.C. where Magistrate has to record substance of evidence only and in a case under the NI Act, parties may file their evidence on affidavits and complainant or any other person giving evidence on affidavit 'may' be called by the Court suo moto, or 'shall' be summoned and examined on application of prosecution or the accused.
::: Downloaded on - 09/12/2020 20:18:19 :::HCHP 1823. Section 143-A of NI Act, empowers the Court trying an offence under Section 138 of NI Act to order the .
drawer of cheque to pay interim compensation to the complainant, where drawer pleads not guilty to the accusation made in the complaint in summary trial or summons case trial or upon framing of charge in any other case. Therefore, in a 'regular trial' under NI Act, Magistrate has option either to proceed with summary trial or summons case trial or any other trial other than summary trial or summons trial.
24 As held by the Apex Court in J.V. Baharuni's case there is no straitjacket formula to try the cases falling under NI Act and the law provided therefor is so flexible that it is upto the prudent judicial mind to try the case summarily or otherwise based on the facts and circumstances of the case and the Courts while dealing with matters under NI Act should keep in mind that difference between the summary and summons trials for the purpose of NI Act is very subtle but has grave ::: Downloaded on - 09/12/2020 20:18:19 :::HCHP 19 repercussion in the case of mistaken identification of trial and therefore, it is desirable from the Magistrate to .
mention specifically that as to whether trial is being conducted as a summons case or summary case.
25 As discussed hereinabove, combined reading of provisions of Chapter XVII of NI Act and Sections 262 to 265 of Cr.P.C. contained in Chapter XXI of Cr.P.C. coupled with the provisions of Chapter XX of Cr.P.C. indicates that for trying a case under NI Act the Magistrate, on presence of accused before him, after taking cognizance of an offence on complaint under Section 138 of NI Act, on the basis of evidence in the shape of affidavit and documents, has to decide the nature of trial i.e. summary trial under Section 143 of NI Act or regular trial as provided under second proviso to Section 143 of NI Act to be conducted in case and has to ask the accused whether he pleads guilty or has a defence to make by recording substance of accusation or putting notice of accusation or framing of charge as the case may be and response of ::: Downloaded on - 09/12/2020 20:18:19 :::HCHP 20 accused thereto and thereafter, Magistrate will follow either of the following courses depending upon particular .
eventuality.
A. Summary trial A.(I) In case, accused, on putting substance of accusation, pleads guilty, the Magistrate after recording his plea shall convict him thereon in consonance with other A.(II) r to relevant provisions of law including Sections 262 to 265 of Cr.P.C. dealing with summary trial.
In case of continuing the trial as a summary trial for not pleading guilty by accused, as provided under Section 262 Cr.P.C. read with provisions of Section 143 of NI Act, the Magistrate has to follow the scheme of trial of summons case as provided under Chapter XX of Cr.P.C. But the Magistrate has not to follow the letters of provisions of Chapter XX but the scheme thereof, because Section 262 Cr.PC. providing procedure for summary trial states that for a summary trial, the procedure specified in Cr.P.C. for trial of summons case shall be followed with exceptions contained in Chapter XXI dealing with summary trials and further Section 143 of NI Act also provides that provisions of Sections 262 to 265 shall also ::: Downloaded on - 09/12/2020 20:18:19 :::HCHP 21 apply to summary trial under NI Act 'as far as may be'.
Therefore, intent of Legislature is that Scheme of Chapter XX .
of Cr.P.C. dealing with trial of summons case shall be applicable to summary trials 'in principle' only which means that after presence of accused before the Magistrate, in response to the process issued against him after taking cognizance of offence by the Magistrate, he has to be informed about accusation against him but it would not be necessary to frame a formal charge or put a Notice of Accusation to him as required in a summons case but the Magistrate has to record in his order, the fact of putting the substance of accusation to him and substance of response of accused thereto and thereafter, before considering the evidence already filed by way of affidavit by complainant, to call the complainant for filing any further evidence, if any, and to call for evidence by accused in rebuttal thereto including summoning and examining any person giving evidence on affidavit as provided under Section 145 of NI Act. Adopting aforesaid procedure there would be substantial compliance of Section 254 of Cr.P.C. After completing this process, the Magistrate shall return his findings either acquitting or ::: Downloaded on - 09/12/2020 20:18:19 :::HCHP 22 convicting the accused as provided under Sections 263 and 264 Cr.P.C.
.
B. Regular trial (trial other than summary trial) In case the Magistrate resorts to the provisions of second proviso of Section 143 of NI Act and decides to proceed further for a trial other than summary trial then he has to follow the provisions provided for such trial under Cr.P.C. in letter and spirit and to conclude the regular trial by complying such provisions religiously.
B.(I) In case of summons case, trial, on appearance or bringing of accused before the Magistrate, before proceeding further, it would be necessary to put Notice of Accusation to accused as provided under Section 251 Cr.P.C. Thereafter, Magistrate shall proceed as per provision of Chapter XX of Cr.P.C, but definitely with variance, for adhering to the provisions of Chapter XVII of the NI Act.
B.(II) In case of regular trial, other than summary and summons case trial, the Magistrate has to frame charge against the accused, as provided in Chapter XVII of Cr.P.C.
particularly under Section 211 Cr.P.C. Thereafter Magistrate ::: Downloaded on - 09/12/2020 20:18:19 :::HCHP 23 has to follow procedure provided for such trial in Cr.P.C., of course with variations in consonance with provisions of NI Act.
.
26. In case where Magistrate, at first instance, decides to conduct summary trial, he is also empowered to switch over from summary trial to regular trial at any stage i.e. at the commencement or in the course as provided under second proviso to Section 143 of NI Act.
27 Magistrate, under Section 138 of NI Act, is empowered to impose sentence of imprisonment for a term extendable upto two years and to impose fine twice the amount of the cheque or with both.
28 In the present case, it appears that Magistrate was intending to follow procedure for regular trial as a summons case and perhaps, therefore only, the trial Magistrate had ordered to list the matter for 'Notice of Accusation' to accused. Though the Magistrate has not recorded any such reason for adopting the procedure of a 'summons case trial' instead of trying the case summarily which ought to have been done by the said Magistrate prior to ordering for listing the case for Notice of Accusation, however, the Apex Court, in the cases referred supra, has observed that the procedure ::: Downloaded on - 09/12/2020 20:18:19 :::HCHP 24 adopted by the Magistrate will indicate that as to whether case was tried summarily or in a regular way, therefore, in .
present case, it can be inferred that Magistrate has intended to opt for regular trial as the case was fixed for Notice of Accusation.
29 Further, the Magistrate has taken the cognizance of the case on the basis of preliminary evidence and other evidence filed by complainant with complaint and had summoned the accused and on presence, accused was directed to furnish the personal and surety bonds which were furnished by accused and attested and accepted by Magistrate and thereafter time was granted, as prayed for, by accused, for filing an application under Section 145 of NI Act for summoning the complainant for examination before putting Notice of Accusation.
30 It is evident from record that on the very first day of appearance of accused neither charge was framed nor Notice of Accusation was put to him and it was also not recorded that substance of accusation was communicated to him for his response as to whether he pleads guilty or has any defence to make. After putting the substance of ::: Downloaded on - 09/12/2020 20:18:19 :::HCHP 25 accusation/Notice of Accusation to the accused, in case of not pleading guilty by him, the Magistrate would have either .
recorded substance of accusation to follow the procedure in summary trial or would have followed procedure for regular trial after putting notice of accusation or framing the charge as the case may be and thereafter would have asked the complainant to lead any further evidence, if any, in support of his case and thereafter occasion to entertain application under Section 145(2) of NI Act would have arisen to pray for summoning and examining the persons who might have given evidence on affidavit i.e. only after filing/leading any other further evidence or opting for not to lead further evidence by the complainant not prior to that.
31. At the first instance, trial will commence thereafter application is to be undertaken. In given facts and circumstances, procedure adopted by the trial Court is amounting to putting the bullock behind the cart.
32 The trial Court has committed patent illegality in in impugned order. Serious mistake committed by the trial Court is not mere irregularity but illegality. Therefore, impugned order dated 8.4.2019 rejecting the application filed ::: Downloaded on - 09/12/2020 20:18:19 :::HCHP 26 under Section 145 of NI Act is set aside with direction to the trial Court to consider this application after putting Notice of .
Accusation to accused, at the stage of or after calling for further evidence of complainant, if any, to be filed/led on behalf of complainant in support of his case.
33 Petition is allowed in aforesaid terms with direction to parties to appear before the trial Judge on 11.01.2021 whereafter the trial Judge shall proceed further in accordance with law as discussed above.
Record be sent back immediately.
December 08,2020 (Vivek Singh Thakur)
(ms) Judge
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