Calcutta High Court (Appellete Side)
Sri Tarun Sen vs State Of West Bengal & Anr on 2 March, 2016
Author: R.K.Bag
Bench: R.K.Bag
1 Form No. J (1) In the High Court at Calcutta Criminal Revisional Jurisdiction Appellate Side Present: The Hon'ble Mr. Justice R.K.Bag CRR 2794 of 2014 [Reportable] Sri Tarun Sen
-vs-
State of West Bengal & Anr.
Mr. Nonigopal Chakraborty ... for the petitioner.
Mr. Ayan Bhattacharyya ... for the opposite party No.2.
Heard and Judgement on: 02.03.2016.
R.K.Bag, J.; The petitioner has preferred this revision under section 482 of Code of Criminal Procedure challenging the order dated July 16, 2013 passed by learned Additional Sessions Judge, 5th Court, Paschim Midnapore in Criminal Revision No. 349 of 2012 by setting aside the order dated June 26, 2012 passed by learned Judicial Magistrate 4th Court, Paschim Midnapore in C.R. Case No. 731 of 2008.
2. It appears from record that the petitioner being the de-facto complainant filed a petition of complaint against the opposite party no. 2 before the Court of learned Magistrate on the allegation of committing offence under section 138 of the Negotiable Instruments Act. The plea of the opposite party No. 2 was recorded by learned Magistrate for the offence under Section 138 of the Negotiable Instruments Act. The evidence of the complainant was closed and the opposite party no. 2 being the accused persons was also examined under section 313 of the Code of Criminal Procedure and the case was posted for examination of the 2 defence witnesses. During such period the Presiding Officer of the Court of learned Magistrate was transferred and a new Presiding Officer joined in the Court of learned Magistrate. The opposite party no. 2 filed an application before the Court of learned Magistrate praying for denovo trial. The said application of the opposite party no. 2 was rejected by learned Magistrate on June 26, 2012. The opposite party no. 2 challenged the order of the learned Magistrate before the Court of Sessions by preferring Criminal Revision No. 349 of 2012.
3. On June 16, 2013, learned Additional Sessions Judge, 5th Court, Paschim Midnapore, disposed of Criminal Revision No. 349 of 2012 by setting aside the order passed by learned Magistrate. Learned Additional Sessions Judge gave direction to learned Magistrate to hear the application filed by the opposite party no.2 afresh and pass a reasoned order after giving opportunity of hearing to both parties. The Judgement and order passed by learned Additional Sessions Judge in Criminal Revision No. 349 of 2012 is under challenge in this revision.
4. Mr. Nanigopal Chakraborty, learned counsel for the petitioner, contends that learned Magistrate did not adopt the procedure of summary trial from the very inception and as such the question of de novo trial after transfer of the Presiding Officer of the Court does not arise. Relying on the decision of the Supreme Court in "J. V. Baharuni -v- State of Gujarat" reported in 2014(4) Crimes 541 (SC) and the decision of our High Court in " Rampo Export Imports Pvt. Ltd. -v- Kusum Products Ltd." reported in (2013)3 C Cr LR (Cal) 719 Mr. Chakraborty submits that the de novo trial is not permissible in the facts and circumstances of the present case and as such the order passed by learned Additional Sessions Judge is liable to be set aside.
5. Mr. Ayan Bhattacharyya, learned counsel for the opposite party no. 2 has referred to the provision of Section 143 of the Negotiable Instruments Act, 1881 and submits that learned Magistrate has the option to try the case without adopting the procedure of summary trial, but learned Magistrate is duty bound 3 to record an order to that effect after giving opportunity of hearing to both parties at the commencement of the trial or in the midst of trial of the case when he is willing to switch over from summary procedure of trial. Mr. Bhattacharyya argues that in the instant case learned Magistrate did not adopt the procedure of summary trial from the very beginning, and he has not recorded any order for not adopting the summary procedure after giving opportunity of hearing to both parties and as such the transferee Magistrate is duty bound to conduct de novo trial of the case. According to Mr. Bhattacharyya, learned Magistrate can at best consider the affidavit filed on behalf of the petitioner in terms of the provisions of section 145 of the Negotiable Instruments Act, but the subsequent procedure of trial is to be conducted de novo.
6. There is no dispute that the petitioner being the de-facto complainant filed an affidavit in chief before the Trial Court in compliance with the provisions of Section 145 of the Negotiable Instruments Act, 1881. It is also not disputed that elaborate cross-examination of the petitioner (PW1) was done on behalf of the opposite party no. 2 being the accused of the criminal case. Admittedly, the opposite party no.2 was also examined under section 313 of the Code of Criminal Procedure after closure of evidence of the petitioner. The further admitted position is that the opposite party no.2 also filed an affidavit in the form of evidence in chief before the Trial Court. On consideration of the above document, which is annexed to the revisional application I find that learned Magistrate did not adopt the procedure of summary trial of this case. It is relevant to quote the provision of Section 143 of the Negotiable Instruments Act, by which power is given to learned Magistrate to try the cases summarily. Section 143 of the Negotiable Instruments Act, 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 4 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 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."
7. On perusal of the above provision of law I find that legislature has given option to learned Magistrate not to follow the procedure of summary trial, if learned Magistrate has any reason to do so. However, legislature has cast an 5 obligation on learned Magistrate to record an order that he is not willing to adopt the procedure of summary trial and the said order can be passed by learned Magistrate after giving opportunity of hearing to both parties. If learned Magistrate adopts the procedure of trial of summons case from the very commencement of the trial, it is the duty of learned Magistrate to record the order to that effect after giving opportunity of hearing to both parties before commencement of the trial. Learned Magistrate may also switch over from the procedure of summary trial to the procedure of trial of summons case in the midst of trial by recording order to that effect and after giving opportunity of hearing to both parties and in that case the witnesses are to be recalled and examined afresh for hearing or rehearing of the case. In the instant case the learned Magistrate has not recorded any specific order for not adopting the procedure of summary trial after giving opportunity of hearing to both parties. However, the petitioner being the accused of the criminal case is well aware that learned Magistrate has not adopted the procedure of summary trial, as elaborate cross-examination of P.W. 1 is done by the petitioner being the accused person before the trial court. The petitioner is also aware that learned Magistrate has not adopted the procedure of summary trial till conclusion of the trial, as the petitioner being the accused has adduced evidence in the form of an affidavit before the Trial Court after his examination under section 313 of the Code of Criminal Procedure. Naturally, the question for consideration of the Court is whether the petitioner is prejudiced for conducting trial by learned Magistrate without adopting summary procedure and whether the absence of recording any specific order to that effect after giving opportunity of hearing to the petitioner has caused any prejudice to him.
8. In "J. V. Baharuni -v- State of Gujarat" reported in 2014(4) Crimes 541 (SC) the Supreme Court has laid down that any omission or even illegality in procedure which does not affect core of the case is not a ground for ordering de novo trial in a case of dishonour of cheque. In " Rampo Export Imports Pvt. Ltd. - v- Kusum Products Ltd." reported in (2013) 3 C Cr LR (Cal) 719 learned Single 6 Judge of this Court did not consider whether de novo trial is required after almost conclusion of trial of the case under Section 138 of the Negotiable Instruments Act, 1881. So the said decisions have no relevance in the facts of the present case.
9. In the instant case I have already observed that the petitioner was well aware from the commencement of the trial till almost conclusion of the trial that learned Magistrate has not adopted the procedure of summary trial. The petitioner participated in cross-examination of the opposite party No.2/complainant (P.W.1), adduced evidence by filing an affidavit and as such the petitioner got the opportunity before the trial court to raise any objection for not adopting summary procedure of trial by learned Magistrate. The absence of recording of any specific order after giving opportunity of hearing to both parties by learned Magistrate at the commencement of the trial as laid down in second proviso to sub-section (1) of section 143 of the Negotiable Instruments Act, cannot cause any prejudice to the petitioner who participated in the trial without raising any objection before learned Magistrate for not adopting procedure of summary trial by learned Magistrate. Nor can I persuade myself to hold that the petitioner is prejudiced for not adopting the procedure of summary trial by learned Magistrate from the very commencement of trial. Since summary trial is not done by learned Magistrate, the question of de-novo trial after almost conclusion of the trial does not arise. In view of my above findings, I have no hesitation to hold that there is no merit in this revision.
10. Accordingly, criminal revision is dismissed.
The department is directed to send down the copy of this order to learned Magistrate of the Court below for favour of information and necessary action.
7I hope and trust that learned Magistrate will conclude the trial within a period of six months as laid down in Section 143 (3) of the Negotiable Instruments Act, 1881.
Urgent photostat certified copy of this order, if applied for, will be made available to the petitioner on priority basis after compliance with all necessary formalities.
(R.K.Bag, J.)