Punjab-Haryana High Court
Bayer Crop Science (I) Ltd vs M/S Mittal Chemicals & Another on 16 September, 2013
Author: Jitendra Chauhan
Bench: Jitendra Chauhan
CRR No. 3983 of 2012 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRR No.3983 of 2012
Date of decision: 16.09.2013
Bayer Crop Science (I) Ltd.
...Petitioner
Versus
M/s Mittal Chemicals & another
...Respondents
CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN
Present: Mr. Anurag Jain, Advocate for the petitioner.
Mr. Gurinder Pal Singh, Advocate for the respondents.
****
Jitendra Chauhan, J. (Oral)
By filing the present criminal revision, the petitioner has assailed the judgment dated 29.09.2012, passed by the Addl. Sessions Judge, Hisar vide which the judgment of conviction and the order of sentence dated 28.08.2010/31.08.2010, were set aside after accepting the Criminal Appeal No.28 of 2010 titled as M/s Mittal Chemicals & another Vs. Bayer Crop Science (I) Ltd. Vide judgment dated 28.08.2010/31.08.2010, the respondents herein, were held guilty and convicted for the offence under Section 138 of the Negotiable Instrument Act, and were sentenced to undergo SI for 3 months and to pay a fine of Rs.10,000/- along with compensation of Rs.8,75,000/-, by the Judicial Magistrate 1st Class, Hisar in Criminal Complaint No.233-II-RBT/2003 titled as Bayer Crop Science (I) Ltd. Vs. M/s Mittal Chemicals & another.
The brief facts of the case are that the petitioner/complainant Sumit Kumar 2013.10.03 18:02 I attest to the accuracy and integrity of this document CRR No. 3983 of 2012 -2- had filed a complaint under Section 138 of the Act against the respondent/accused, on the allegation that for discharge of legally enforceable debt, the respondent/accused had issued a cheque for Rs.8.75 lacs in favour of the petitioner/complainant, which bounced for insufficient funds. Even after receipt of the demand notice, the accused failed to make the payment and hence the complaint dated 01.12.2003 was filed. After service of the notice of the accusation, the complainant examined two witnesses. The statement of accused under Section 313 of Cr.P.C., was recorded and the respondent/accused examined two witnesses in his defence. After trial, the Court was pleased to hold the accused guilty and convicted them for the offences under Section 138 of the Act vide judgment dated 28.08.2010. Further, the convict was awarded sentence of 3 months and a fine of Rs.10,000/- along with compensation of Rs.8.75 lacs and in default to undergo SI for a period of one month.
The learned counsel for the petitioner argued that the judgment of the learned appellate Court is against law and facts on the file. The learned appellate Court has legally erred in remanding the case back to the Judicial Magistrate 1st Class for denovo trial after setting aside the conviction and sentence passed by the learned trial Court. He further argued that the accused has failed to show any prejudice in recording the evidence and delivering the judgment by the two different presiding officers.
The learned counsel for the respondents has supported the Sumit Kumar 2013.10.03 18:02 I attest to the accuracy and integrity of this document CRR No. 3983 of 2012 -3- remand order while citing Nitinbhai Saevatilal Shah and Anr. Vs. Manubhai Manjibhai Panchal and Anr. AIR 2011 Supreme Court 3076.
This Court has heard rival contentions of learned counsel for the parties and has carefully gone through the paper book with their able assistance.
The only point involved in this case as to whether Section 326(3) of the Code of Criminal Procedure is applicable where the case has been tried as a summon case.
Section 326 of the Code of Criminal Procedure reads as under:-
"Section 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 witnesses 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 Sumit Kumar 2013.10.03 18:02 I attest to the accuracy and integrity of this document CRR No. 3983 of 2012 -4- 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 one Magistrate to another Magistrate, the former shall be deemed to cease to exercise jurisdiction therein and to be succeeded by the later, 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."
The Hon'ble Supreme Court in Nitinbhai Saevatilal Shah and Anr. Vs. Manubhai Manjibhai Panchal and Anr. AIR 2011 Supreme Court 3076, has held as under in para 14 of the judgment:-
"14 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 Sumit Kumar 2013.10.03 18:02 I attest to the accuracy and integrity of this document CRR No. 3983 of 2012 -5- 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 the 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 case cited above is applicable only to a summary trial, where only the substance of the evidence is recorded by a Judicial Officer. In the case in hand, the perusal of the statements of the witnesses would show that the complainant as well as the accused have got recorded their respective examination in chief in detail by tendering the affidavits, and lengthy cross examination of the witnesses was conducted by the counsel for the parties. It being so when the evidence in detail of both the sides was recorded in the presence of both the parties and / or in the presence of their respective counsels, no prejudice can be said to have been caused to the either party. Therefore, the lengthy detail evidence recorded by the predecessor of a judicial officer can be read for adjudicating the matter by the successor. None of the parties has come Sumit Kumar 2013.10.03 18:02 I attest to the accuracy and integrity of this document CRR No. 3983 of 2012 -6- forward with the plea that the evidence so recorded is incomplete evidence. If the facts of the present case are perused carefully, it would reveal that the entire evidence was recorded according to the procedure which is warranted in a summons case. The Nitinbhai Saevatilal Shah and Anr. Vs. Manubhai Manjibhai Panchal and Anr. AIR 2011 Supreme Court 3076, is not applicable to the facts of the present case and the learned appellate Court has erred in placing reliance on it. The petitioner has also placed the entire evidence before this Court and this Court does not find any procedural defect in recording the evidence.
In Mukesh Vs. State of Rajasthan 1998 Criminal Law Journal, 2439, it has been held as under:-
"The indicator to tell as to whether a case under the Act has been or is being tried summarily so as to attract the non-obstante clause is Sub- Section (3) of Section 326, Cr. P.C. is the compliance of Sub-section 263 & 264 Cr. P.C. A case in which the record of proceedings has been prepared in accordance with the provisions of Section 263 & 264, Cr. P.C. would be a case of summary trial for the purposes of Section 326(3) and the evidence recorded by one special Judge cannot be read in evidence by the succeeding Judge who would be required to hold the trial denovo. However, if no record as per Sub-section 263 & 264 has been or is being maintained by the Special Judge and the case has been/is being tried as a regular summons case or a warrant case, such a case would though shall be considered as Sumit Kumar 2013.10.03 18:02 I attest to the accuracy and integrity of this document CRR No. 3983 of 2012 -7- tried "ina summary way"for the purposes of clause
(f) of Section 12AA(1) of the Act but would not be a "summary trial"so as to attract the provisions of Section 326(3) Cr. P.C. and the evidence recorded by one Special Judge may be legally read in evidence by his successor-in-office and no denovo trial would be necessitated in such a case."
In this manner, the evidence recorded by a judicial officer shall be read as complete evidence by his successor. The findings of the learned Addl. Sessions Judge, Hisar that "as such, a grave illegality has been committed and the judgment under challenge is thus not sustainable and is liable to be set aside", is legally unsustainable and are hereby reversed.
For the aforesaid reasons, this Criminal Revision No.3983 of 2012 is accepted, the impugned judgment dated 29.09.2012 passed by Addl. Sessions Judge, Hisar, in Criminal Appeal No.28 of 2010 titled as M/s Mittal Chemicals and another Vs. Bayer Crop Science (I) Ltd. is, hereby, set aside. The learned Addl. Sessions Judge, Hisar is directed to decide the appeal afresh in accordance with law.
Parties through their counsel are directed to appear before the Appellate Court, on 06.11.2013.
16.09.2013 (JITENDRA CHAUHAN)
sumit.k JUDGE
Note:- Whether to be referred to reporter :- Yes / No Sumit Kumar 2013.10.03 18:02 I attest to the accuracy and integrity of this document