Karnataka High Court
Bellary Minerals vs Asif, Prop. Syeed Traders, on 23 September, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA,
DHARWARD BENCH
DATED THIS THE 23rd DAY OF SEPTEMBER, 2013
BEFORE
THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL PETITION No.10807/2011
BETWEEN:
Bellary Minerals
Represented by its Managing
Partner, M.Srinivasulu,
Son of Late M.Venkataswamy,
Aged about 61 years,
Residing at 1st Cross,
Gandhinagar,
Bellary. ...PETITIONER
(By Shri G.K.Hiregoudar, Advocate)
AND:
Asif,
Proprietor: Syeed Traders,
Door No.147, Ward No.6,
Behind Bandimoti Mosque,
Bangalore Road,
Bellary. ...RESPONDENT
(By Shri.Bahubali A Danawade, Advocate )
This Criminal Petition is filed under Section 482 of Code of
Criminal Procedure, 1973, seeking to quash the judgment dated
2
12.4.2010 in Crl.A.No.131/2008 passed by the Fast Track Court-II,
Bellary vide Annexure-B to the petition and confirm the judgment
dated 21.6.2008 in CC No.878/2004 passed by the Principal Civil
Judge (Junior Division) and JMFC Court, Bellary vide Annexure-A
to the petition.
This petition coming on for hearing this day, the Court made
the following:
ORDER
This court had earlier allowed a criminal petition filed under Section 482 of the Code of Criminal Procedure, 1973 (Hereinafter referred to as the 'Cr.PC', for brevity) against an order of the appellate court setting aside the conviction of the present respondent by order dated 14.9.2011. The same having been challenged by the respondent before the apex court, the apex court has allowed the criminal appeal in Crl.A.No.679/2012 and without going into the merits of the case, the order passed by this court was set aside and the matter remanded for a fresh disposal by an order dated 20.4.2012. Though there was a direction that this court has to hear the matter within three months from the date of receipt of a copy of the order of the apex court, it is only now that the matter is listed for final hearing. 3
2. Having heard the learned counsel for the petitioner as well as the learned counsel for the respondent, the reasoning of the appellate court that given the circumstances of the case, the trial court ought to have framed charges and ought to have tried the case as a warrant case, does not find support under the provisions of the Negotiable Instruments Act, 1881 (Hereinafter referred to as the 'NI Act', for brevity), in that, insofar as a complaint for an offence punishable under Section 138 of the NI Act, it is Chapter-XVII that would be applicable. Section 143 reads as follows:-
"143. 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;
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 4 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."
The departure from the procedure prescribed in the Cr.PC is also evident from the tenor of section 145, which reads as follows :
"145. 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.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."
In the decision rendered in Criminal petition No.8943/2010 (M/s Mesh Trans Gears Private Limited vs. Dr.R.Parvathreddy) dated 22.3.2013, this court has, while addressing the manner in which a trial shall be conducted, opined as follows : -
"Though Section 143, it begins with a non- obstante clause carving out an exception to the provisions of the Criminal Procedure Code, sub- section (1) thereof clearly provides that the provisions of sections 262 and 265 of the Code, as far as may be, applied to trials for an offence under Section 138 of the Act. It empowers the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees. It also provides that if it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeded one year may have to be passed, he can do so after hearing the parties and recalling any witness who may have 6 been examined. Under this provision so far as practicable, the Magistrate is expected to conduct the trial on a day-to-day basis until its conclusion and conclude the trial within six months from the date of filing of the complaint.
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 the finding. A successor Magistrate can act on the evidence recorded by his predecessor, either in whole or in part. There is no need to conduct a retrial or a de novo trial, where the case was conducted as a summons case. Therefore, if the Magistrate, records the evidence, as is done in a regular summons case the succeeding Magistrate can act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself. If a case under section 138 of the NI Act is in fact, tried as regular summons case, it would not come within the purview of section 326(3) of Cr.PC. In other words, if the case in substance was not tried in a summary way, though was triable summarily, and was tried as a regular summons case, it need not be heard de novo and 7 the succeeding magistrate can follow the procedure contemplated under section 326(1) of the Code. However, where a case is tried in a summary way by following the procedure contemplated by the provisions of Chapter XXI of the Code and in particular sections 263 and 264, then it would be excluded from the purview of section 326(1) of the Code.
Section 143 has a mandatory effect though the provision opens with a non obstante clause. This means that provisions of section 259 of Cr.PC regarding a warrant trial shall have no application in respect of an offence under Section 138 of the NI Act. There is no room for doubt that for the purposes of trial of an offence falling under the Act, the provisions of a summary trial under the Code would be applicable and a summary trial cannot be converted into a trial for a warrant case. The evidence adduced by the parties could be by way of affidavits under section 145 of the Act. And on the application of the prosecution or the accused the Court may summon or examine any person giving evidence as to the facts contained thereunder.
When at the commencement of, or in the course of, a summary trial, it appears to the Magistrate 8 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 Code of Criminal Procedure.
An option is left with the Magistrate to try the case in the manner provided under Sections 262 to 265 of the Code of Criminal Procedure or otherwise as a regular trial. The phraseology used in the section 'as far as may be' denotes that there is an option available to the Magistrate. There may be circumstances wherein after recording the evidence, the Magistrate may gather an impression that, the case calls for a higher punishment and in such a circumstance, the Magistrate can elect to try the case as a summons case."
3. Therefore, the opinion expressed by the appellate court to the contrary, notwithstanding the reasons assigned, does not find support from the wording of section 143 of the NI Act and hence, the opinion expressed is erroneous and is consequently set aside. Since 9 the appellate court would be in a position to reappreciate the evidence and to draw its own conclusions, it is for the appellate court to address the case with reference to the material on record and take a decision one way or the other and there was no necessity to remand the matter. This court had earlier confirmed the conviction in the interest of justice. As the appellate court had proceeded to consider the case for remand and therefore had not addressed the findings of fact with reference to the material on record, the matter is remanded for a fresh consideration with reference to the material that is already on record.
Consequently, the petition is allowed. The judgement of the appellate court is set aside. The matter is remanded for a fresh consideration in terms as above.
SD/-
JUDGE nv