Punjab-Haryana High Court
M/S Gupta Sales Corporation And Another vs M/S Bayer Crops Science Limited on 23 May, 2013
Author: Sabina
Bench: Sabina
CRM No.M-8416 of 2012 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRM No.M-8416 of 2012 (O&M)
Date of decision: 23.05.2013.
M/s Gupta Sales Corporation and another
......Petitioners
Versus
M/s Bayer Crops Science Limited
.......Respondent
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. Ram Lal Gupta, Advocate for the petitioners.
None for the respondent.
****
SABINA, J.
Petitioners have filed this petition under Section 482 of the Code of Criminal Procedure, 1973 for quashing the order dated 22.02.2012 (Annexure P-1) in complaint No.39 of 2005 passed by the Trail Court whereby de novo trial was ordered to be held relying upon the decision of the Apex Court in Nitinbhai Saevatilal Shah and another Versus Manubhai Manjibhai Panchal and another reported in 2011(4) Civil Court Cases 001(SC).
Impugned order dated 22.02.2012 reads as under:-
"Case was fixed for today for consideration on application under Section 311 Cr.P.C. moved by accused. At this stage, it has been brought to my notice that the evidence of the complainant was recorded by Learned Predecessor of this court and in view of the judgement of Hon'ble Supreme Court of Nitinbhai CRM No.M-8416 of 2012 (O&M) -2- Saevatilal Shah & Anr. Vs. Manubhai Manjibhai Panchal and Another Criminal Appeal No.1703 of 2011, the evidence recorded by learned Predecessor in summary trial cannot be read by Successor in view of the provisions of 326(2) of Criminal Procedure Code. Perusal of the record reveals that no such order has been passed by learned Predecessor for trying the instant matter as summon case. Accordingly, finding no other alternative this court finds it proper to record the evidence of complainant afresh. Section 143 of Negotiable Instruments Act specifically provides that the complaint under Section 138 of Negotiable Instruments Act is to be tried summarily but in the instant case this court does not find it proper to try the instant complaint summarily as cheque amount is quite high and complainant could not be compensated in case the case is tried summarily. Further on oral hearing of the parties, this court is of the opinion that the accused would only be able to substantiate his defence in case the complaint is tried as a summon case. Accordingly, instant proceedings are started as summoned trial and the case would be tried as summoned case. Perusal of the file further reveals that the present complaint is pertaining to year 2004. Accordingly, the complainant is directed to conclude his CRM No.M-8416 of 2012 (O&M) -3- entire evidence within two opportunities. The copies of affidavits be supplied in advance to the opposite party who would cross examine the witness positively on the date fixed. Now case stands adjourned to 1.3.2012."
Learned counsel for the petitioner has submitted that the Trial Court had erred in placing reliance on the judgement of the Supreme Court in Nitinbhai's case (supra) as the said judgement was not applicable to the facts of the present case. In the present case, the complaint filed by the respondent under Section 138 of the Negotiable Instruments Act, 1881 was being tried as a summon case and not in a summary manner. In these circumstances, there was no occasion for the Trial Court to have ordered a de novo trial. Learned counsel has placed reliance on the decision of this Court in Darshan Lal Vs. State of Punjab and others 2012(2) RCR (Criminal), 520 wherein it was held as under:-
"The second contention of the petitioner on the basis of the judgement of the Hon'ble supreme Court in case of Nitinbhai Saevatilal Shah & another V. Manubhai Manjibhai Panchal and another (supra) is also liable to be rejected simply on the ground that in the instant case, a finding has been recorded while deciding the present case that no summary procedure was adopted and the Magistrate had adopted the procedure applicable to the summon case. Thus, bar of Section 326 CRM No.M-8416 of 2012 (O&M) -4- as interpreted by the Hon'ble Supreme Court would not apply."
It has been held in 'K. Jayachandran versus O. Nargeese and another, 1987 Criminal Law Journal. 1997' as under:-
"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 Section 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. In the instant case the trial was conducted under Ch. XX relating to trial of Summons cases and not under Ch. XXI relating to Summary trials. 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 CRM No.M-8416 of 2012 (O&M) -5- cannot come within the exclusion because the object and purpose of the provision is not to exclude any case tried in the ordinary way 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 case the succeeding Magistrate was not 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. When it is not tried in a summary way the provisions of S.326(1) are squarely applicable and the exclusion in S.326(3) will not apply."
"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 Section 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 CRM No.M-8416 of 2012 (O&M) -6- 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."
"In construing Section 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 way 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. "
None has appeared on behalf of respondent No.2.
In the present case, the complaint was being tried as a summon case and not as a summary trial. In these circumstances, the judgement of the Apex Court in Nitinbhai Saevatilal Shah's case (supra) relied upon by the Trial Court was not CRM No.M-8416 of 2012 (O&M) -7- applicable to the facts of the present case.
Section 326 Cr.P.C. reads as under:-
"326. 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 who 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 Magistrate to another Magistrate), the former shall be deemed to cease to exercise jurisdiction therein, CRM No.M-8416 of 2012 (O&M) -8- 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."
Since in the present case, trial was not being conducted in a summary way, Clause 3 of Section 326, Cr.P.C. would not be applicable to the facts of the present case. During the course of arguments, it has transpired that the impugned order was passed at the stage when the case was listed for defence evidence of the petitioner. In view of the above facts impugned order dated 22.02.2012 is set aside. The Trial Court is directed to proceed with the trial further in accordance with law.
Petition stands disposed of accordingly.
(SABINA) JUDGE May 23, 2013 sandeep sethi