Karnataka High Court
Sri Rajaiah vs Sri K S Chowdamma on 22 February, 2019
Equivalent citations: AIRONLINE 2019 KAR 1759, 2020 (1) AKR 87 (2019) 1 NIJ 453, (2019) 1 NIJ 453, 2020 (1) AKR 87
Author: K.Natarajan
Bench: K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF FEBRUARY, 2019
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL REVISION PETITION No.51 of 2011
BETWEEN
SRI RAJAIAH,
ASSISTANT AGRICULTURAL OFFICER,
S.I.T. BATAWADI,
TUMKUR.
... PETITIONER
(BY SRI VENKATESH R. BHAGAT, ADVOCATE)
AND
SRI K.S. CHOWDAMMA,
W/O H.M. HANUMANTHARAYA,
AGED ABOUT 55 YEARS,
R/O KOUSTUBA NILAYA,
BEHIND SHANIDEVARASWAMY TEMPLE,
BATAWADI,
TUMKUR.
... RESPONDENT
(BY SRI A.V. GANGADHARAPPA, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397, 401 READ WITH SECTION 482 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT DATED 8.12.2010
PASSED BY THE PRESIDING OFFICER, FTC-II, TUMKUR IN
CRL.A.No.174/2008 CONFIRMING THE CONVICTION AND THE
SENTENCE IN THE JUDGMENT DATED 22.10.2008 PASSED BY
THE I ADDITIONAL CIVIL JUDGE (JR.DN.) & JMFC., TUMKUR IN
C.C.No.2375/1995, FOR THE OFFENCE PUNISHABLE UNDER
SECTION 138 OF N.I. ACT.
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THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 03.01.2019 AND COMING ON FOR
PRONOUNCEMENT OF ORDERS, THIS DAY THE COURT
PRONOUNCED THE FOLLOWING:
ORDER
This revision petition is filed by the petitioner- accused under Sections 397 and 401 read with Section 482 of Cr.P.C. seeking to set aside the judgment of conviction and sentence dated 08.12.2010 passed by the Presiding Officer, Fast Track Court-II, Tumkur, in Criminal Appeal No.174/2008, confirming the judgment of conviction and sentence dated 22.10.2008 passed by the I Additional Civil Judge (Jr.Dn.,) and JMFC, Tumkur, in CC No.2375/1995.
2. The petitioner is accused and respondent is complainant before the Trial Court. The ranks of the parties before the Trial Court are retained for the sake of convenience.
3. The factual matrix of the case before the Trial Court is that the accused/petitioner approached the complainant for financial assistance and borrowed Rs.1,45,000/- from 3 her for the purpose of developing the property which was purchased in the name of his wife with an assurance to return the same within two months, but the accused failed to repay the loan amount. When the complainant requested the accused for return of the money, the accused gave him a cheque dated 25.05.1995 for Rs.1,45,000/- drawn on United Commercial Bank, Tumkur, with an assurance that the cheque would encash on its presentation. Accordingly, the complainant presented the cheque on 23.06.1995, but the same was returned with a shara as 'funds insufficient'. Then a notice came to be issued and the same was received by the accused, but he failed to repay the loan within the prescribed time. Hence, the complainant filed a private complaint under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 ("N.I. Act" for short) before the II Additional Civil Judge (Jr. Dr.) and JMFC-III, Tumkur and the accused appeared before the Court, pleaded not guilty and claimed to be tried. Therefore, the complainant examined her Power of 4 Attorney Holder as PW.1 and another witness as PW.2 and got marked six documents as per Exs.P.1 to P.6. The accused got himself examined as DW.1 and got marked two documents as per Exs.D.1 and D.2. The statement of the accused under Section 313 of Cr.P.C. was recorded. The case of the accused was one of total denial. After hearing learned counsel on both sides, the Trial Court found the accused guilty of the offence punishable under Section 138 read with Section 142 of the N.I. Act and sentenced him to undergo simple imprisonment for a period of six months and to pay fine of Rs.5,000/-, in default to undergo simple imprisonment for a period of three months and further directed to pay Rs.2,00,000/- to the complainant as compensation within three months from the date of the said order.
Being aggrieved by the same, the accused filed an appeal before the District Court, Tumkur, and the same was made over to the Fast Track Court-II, Tumkur, in Crl.A.No.174/2008. After hearing learned counsel on both 5 sides, the learned Fast Track Judge confirmed the judgment of conviction and sentence passed by the Trial Court by judgment dated 08.12.2010.
Being aggrieved by the same, the accused is before this Court contending that the Courts below have failed to take note of the fact that the complainant failed to produce any documents regarding the transaction, despite the accused discharging the burden by rebutting the transaction under Section 139 of N.I. Act. The Courts below have failed to take note of the fact that there is no relationship between the complainant and the accused and cheque was misused by the complainant and the judgment of the Courts below are illegal, perverse, capricious and arbitrary. The Courts below have erred in putting the burden on the accused to prove the case, which is against the principles of criminal jurisprudence. The complainant has not entered into the witness box. The cheque sought to be issued in the year 1995 is a concocted story, as the account was closed by the accused as early as on 6 27.10.1995 as could be seen from Ex.D.2 and all other cheques were enchased. Both the Courts below have ignored Exs.D.1 and D.2 and failed to appreciate the evidence on record and hence, prayed for allowing the revision petition.
4. Learned counsel for the accused/petitioner strenuously argued mainly on three grounds. The first ground urged by the learned counsel for the petitioner is that PW.1-Power of Attorney Holder, though filed the complaint, did not enter into the witness box to give evidence to tender himself for cross-examination. PW.1 - son-in-law of the complainant was examined as a witness whose presence was not at all mentioned while filing the complaint before the Trial Court. Therefore, the evidence of PW.1 cannot be acceptable. The second ground urged is that the Trial Court allowed the accused/petitioner to file an affidavit of evidence under Section 145 of the N.I. Act, which is not permissible. Therefore, trial before the Court vitiates, which cannot be cured. The third ground is that 7 as per the judgment of the Hon'ble Apex Court, amendment to Sections 142 to 147 of N.I. Act, as amended in the year 2002, the trial under Negotiable Instruments Act must be a summary proceeding. The Trial Court record reveals that there were four Judges who recorded the evidence and the subsequent Judge delivered the judgment. Therefore, there is a bar under Section 326(3) of Cr.P.C. for pronouncement of judgment by the subsequent Judge. Therefore, prayed for setting aside of the judgment of conviction and sentence.
5. Per contra, learned counsel for the respondent/complainant contended that as per the evidence available on record, PW.1 was present during the transaction. Therefore, he is capable of giving evidence on behalf of the complainant. He further contended that once the accused himself filed the affidavit evidence which is prior to commencement of the amendment and there is no such defence taken on the grounds urged before the First Appellate Court, now the accused/petitioner cannot 8 urge new grounds before this Court. Learned counsel for the respondent also contended that on perusal of the LCR, the evidence commenced wayback in the year 1996, prior to the amendment brought to Sections 143 to 147 of the N.I. Act . It was not tried summarily, but it was tried as a summons case. Therefore, prayed for dismissal of the revision petition.
6. Heard learned counsel on both sides and perused the records.
7. The first ground urged by learned counsel for the petitioner is with regard to leading of evidence by the Power of Attorney Holder of the complainant.
8. Learned counsel for the petitioner contended that though the complainant-Chowdamma filed the complaint under Section 200 of Cr.P.C, but after taking cognizance by the learned Magistrate, she has not entered into the witness box to tender herself for cross-examination. But in her place, her son-in-law, PW.1-Lakshmikanth was 9 examined. Therefore, PW.1 did not know anything about the transaction and there is no averment of Power of Attorney holder in the complaint. Therefore, his evidence cannot be relied upon for the purpose of basing conviction. In support of his contention, learned counsel relied upon the judgment of the Hon'ble Supreme Court in the case of Krishna Janardhan Bhat vs. Dattatraya G. Hegde reported in (2008)4 SCC 54 and another judgment in the case of A.C. Narayanan vs. State of Maharashtra and Another reported in (2015)12 SCC 203. The Hon'ble Supreme Court in the case of Krishna (supra) has dealt with discharging the legally liable debt and presumption under Section 139 of the N.I. Act. In the said case, the complainant has not entered into the box and the Power of Attorney Holder was examined as witness and in respect of raising presumption under Section 138 of N.I Act, cannot be drawn. The complainant's case was primarily accepted for the reason that the appellant did not step into the witness box. The Trial Court has not drawn any inference as to the probability of the complainant advancing a sum 10 of Rs.1.5 lakhs merely on asking and that too without keeping any documentary proof or requiring presence of any witness. Therefore, the Hon'ble Supreme Court held that adverse inference can be drawn against the complainant in respect of non-examination and the complainant not entering into the witness box for tendering cross-examination. Similar view is taken by the Hon'ble Supreme Court in the case of A.C. Narayan (supra) wherein, the complaint was filed on behalf of the Company and the complaint was said to be filed by one 'S' claiming to be the General Power of Attorney Holder of the complainant. The judgment of conviction and sentence was passed by relying upon the evidence of the person, who was not authorized by the Managing Director or any Directors, to file the complaint and lead evidence. Hence, prayed for allowing the revision petition.
9. Per contra, learned counsel for the respondent brought to the notice of this Court that though the ratio in respect of giving evidence by the General Power of 11 Attorney without mentioning the presence of General Power of Attorney in the complaint and non-examination of the complainant is fatal to the complainant's case, but it is contended that in the present case, the complainant filed complaint to the Court under Section 200 of Cr.P.C. Later, herself entered into the witness box and gave her statement on oath and thereafter, the learned Magistrate took cognizance of the offence against the accused and issued process, but during evidence, the complainant gave Power of Attorney to her son-in-law, who was examined as PW.1 and in the cross-examination, it was clearly stated by him that he was present at the time of the transaction and also at the time of issuance of the cheque by the accused. Therefore, it is contended by learned counsel for the respondent that PW.1 has full knowledge in respect of the transaction. Therefore, the conviction and sentence based upon the evidence of PW.1 does not suffer from any illegality. Hence, prayed for dismissing the revision petition.
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10. On hearing both counsels and looking to the documents reveals that the evidence of PW.1 produced before the Trial Court shows that the complainant herself gave a sworn statement on 27.10.1995 and got marked documents and based upon her statement, the learned magistrate took cognizance of the offence and after appearance of the respondent-accused, the plea has been recorded and thereafter, the case was posted for evidence. At that time, the General Power of Attorney Holder filed an application seeking permission of the Court to adduce evidence on behalf of the complainant. After hearing both the counsel, learned Magistrate allowed the application and passed the order on 18.05.1998 permitting PW.1 to adduce evidence on behalf of the complainant. The said order permitting the Power of Attorney Holder to adduce evidence was not objected by the respondent by challenging the said order before the Appellate Court. Even otherwise, the entire evidence in respect of cross- examination clearly goes to show that at the time of paying money by the complainant, who is the mother-in- 13 law of P.W.1, to the accused, P.W.1 himself, his wife, his daughter and his father-in-law were present. He has further stated in the cross-examination that the accused did not repay the said amount as assured by him and thereafter, the accused issued the said cheque in favour of the complainant. The cheque is said to be issued by the accused in his house. PW.1 has also spoken about the requirement of money by the accused for the purpose of development of the property which was purchased by the accused in his wife's name and borrowed money for the purpose of construction. The evidence of PW.1 clearly goes to show that he knows the transaction between the complainant and the accused. He was present at that time and also witnessed issuance of the cheque. Such being the case, the contention taken by the petitioner-accused that he has no knowledge in respect of the transaction and his evidence cannot be acceptable for basing the conviction cannot be acceptable. In this regard, the Hon'ble Supreme Court in the case of Krishna (supra), has held that there is no friendship between the appellant and the accused 14 and the Supreme Court in the case of A.C. Narayanan vs. State of Maharashtra and another reported in (2015) 12 SCC 203, has given the guidelines, as under;
"15. While holding that there is no serious conflict between the decisions in "M.M.T.C. and Janki Vashdeo Bhojwani", the larger Bench clarified the position and answered the questions framed in the following manner:
(A.C. Narayanan case, SCC pp.808-09, para
33) 33.1(i) Filing of complaint petition under Section 138 of the NI Act through power of attorney is perfectly legal and competent.
33.2(ii) The power-of-attorney holder can depose and verify on oath before the court in order to prove the contents of the complaint. However, the power-of-attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions. 33.3(iii) It is required by the complainant to make specific assertion as to the knowledge of 15 the power-of-attorney holder in the said transaction explicitly in the complaint and the power-of-attorney holder who has no knowledge regarding the transactions cannot be examined as a witness in the case.
33.4(iv) In the light of Section 145 of the NI Act, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the NI Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant of his witness upon oath for taking the decision whether or not to issue process on the complaint under Section 138 of the NI Act. 33.5(v) The functions under the general power of attorney cannot be delegated to another person without specific clause permitting the same in the power-of-attorney. Nevertheless, the general power of attorney itself can be cancelled and be given to another person." 16
11. The guideline No.33.2(ii) is clear that the person who has knowledge in respect of the said transaction can lead evidence before the Court. Here, in this case, from the evidence of P.W.1 on record, especially from the cross- examination and evidence of the accused, it is clear that the complainant and the accused were neighbours. The husband of the complainant and the accused were colleagues working in the same department and their relationship was very close and the accused and complainant used to visit their house frequently and vice versa and even in the cross-examination, it was suggested by learned counsel for the accused that by taking advantage of frequent visits and the close relationship, the accused has stolen the cheque leaf from the house of the complainant, which was handed over to him by his wife for monthly expenses by signing on the blank cheque. This suggestion goes to show that the relationship between the complainant and the accused was very friendly, cordial and in good terms throughout. PW.1 witnessed the transaction and has also clearly stated about borrowing money by the 17 accused for developing the property purchased in his wife's name. On both these grounds, the contention of learned counsel for the petitioner/accused that PW.1 was not eligible to lead evidence as Power of Attorney holder, cannot be acceptable. On the other hand, PW.1 is eligible for giving evidence as Power of Attorney Holder on behalf of the complainant, who is his own mother-in-law. Therefore, the judgment of the Hon'ble Apex Court relied upon by the learned counsel for the accused is of no help to him.
12. The second contention taken by learned counsel for the accused is that the Trial Court allowed the petitioner/accused to file affidavit evidence, which is prohibited under Section 145(1) of the N.I Act. Hence, it is contended that the proceedings before the Trial Court vitiates. Therefore, it is contended that the judgment of conviction and sentence passed by the Trial Court requires to be set aside. In support of his case, he relied upon the decision of the Hon'ble Supreme Court in the case of 18 Mandvi Cooperative Bank Limited vs. Nimesh B. Thakore reported in (2010) 3 SCC 83. In the said case, the Hon'ble Supreme Court has dealt with Section 145(2) of the N.I Act and held that the legislature has amended the provisions of Section 145 for leading evidence by the complainant by giving evidence of affidavit and also witness of the accused, but not accused for giving any affidavit in view of evidence. In the said case, at paragraph-45, it has been held as follows;
"45. In para 29 of the judgment, the High Court observed as follows:
"It is true that Section 145(1) confers right on the complainant to give evidence on affidavit. It does not speak of similar right being conferred on the accused. The legislature in their wisdom may not have thought it proper to incorporate the word 'accused' with the word 'complainant' in sub-section (1) of Section 145 in view of the immunity conferred on the accused from being compelled to be a witness against himself under Article 20(3) of the Constitution of India...."
Then in para 31 of the judgment it observed: 19
"...Merely because, Section 145(1) does not expressly permit the accused to do so, does not mean that the Magistrate cannot allow the accused to give his evidence on affidavit by applying the same analogy unless there is just and reasonable ground to refuse such permission. There is no express bar on the accused to give evidence on affidavit either in the Act or in the Code... I find no justified reason to refuse permission to the accused to give his evidence on affidavit subject to provisions contained in Sections 315 and 316 of the Code."
13. The Hon'ble Supreme Court at paragraph 47 of its judgment has set aside the order of the High Court and observed as follows;
47. There are two errors apparent in the reasoning of the High Court. First, if the legislature in their wisdom did not think "it proper to incorporate a word 'accused' with the word 'complainant' in Section 145(1)....", it was not open to the High Court to fill up the self- perceived blank. Secondly, the High Court was in error in drawing an analogy between the 20 evidences of the complainant and the accused in a case of dishonored cheque. The case of the complainant in a complaint under Section 138 of the Act would be based largely on documentary evidence.
14. From the said principles, it is clear that the accused has no right to file his evidence by way of affidavit. The Hon'ble Apex Court has also held that amendment to the provisions of Sections 143 to 147 of the N.I. Act is retrospective in nature as it was a procedural aspect. Therefore, as on the date of amendment to the provisions of Sections 143 to 147 of the N.I Act, the same came into force with effect from 06.02.2003. The procedure would apply to the pending cases as on the date of commencement of the amendment.
15. Admittedly, the accused in this case filed the evidence by way of affidavit though it is not permissible. Though the case pertains to the year 1995 prior to the commencement of amendment to Section 145, the 21 evidence was lead in the year 2005 (24.01.2007). On perusal of the affidavit, he has not mentioned any provision in the affidavit while filing the same whether the affidavit came to be filed under Section 145 (2) of the N.I. Act or Sections 315 or 316 of Cr.P.C. When the affidavit came to be filed by the accused as evidence, the Trial Court accepted the same and the accused was put into cross-examination. Thereafter, the judgment was passed by the Trial Court. After conviction, while filing the appeal before the District and Sessions Court, the accused has not raised any such ground regarding filing of the affidavit or allowing the affidavit by the Court below. No such ground was taken by the accused before the First Appellate Court. For the first time, the accused has taken the said contention before this court in this petition.
16. Learned counsel for the respondent contended that when the accused did not raise any objection at the earliest point of time, he cannot agitate the same at the appellate stage. In support of his argument, learned 22 counsel for the respondent relied upon the judgment of the Hon'ble Supreme Court in the case of J.V. Baharuni and another vs. State of Gujarat and another reported in (2014) 10 SCC 494. The Hon'ble Supreme Court while dealing with a similar case in respect of summary proceedings, at paragraph-17 has held as follows;
"17. Keeping in mind the provisions of Section 465 Code of Criminal Procedure, it was submitted, the High Court ought not to have reversed the finding of the trial court on account of any error, omission or irregularity in the complaint or order, judgment or other proceedings during trial or inquiry until and unless the Court feels that failure of justice has in fact occasioned thereby. The learned counsel, taking cue from sub-section (2) of Section 465 Cr.PC, submitted that it is the bounden duty of respondent complainants to raise the objection, if any, at the earliest stage before the trial court itself. But the complainants had not raised any such objection that being summary proceedings, the learned Magistrate who delivered the judgment cannot act on the evidence recorded by his 23 predecessor. The respondents have therefore no locus to raise such objection in appeal, and the High Court had committed a serious error in entertaining the plea of respondents and setting aside the judgment of the trial court. In support thereof, the learned counsel heavily relied on a decision of this Court dated 12-7- 2013 in Mehsana Nagrik Sahkari Bank Ltd. v. Shreeji Cab Co. wherein this Court after referring to Nitinbai and perusing the notes of evidence, found that the Magistrate recorded the evidence not in a summary manner but in full-fledged manner and declared that there is no need to order for a de novo trial."
17. Now, coming to the case on hand, the petitioner has not raised any such ground in respect of filing the affidavit evidence as a ground in the District Court in appeal and even no such ground is urged in this revision petition. Therefore, learned counsel for the respondent has rightly contended that no such ground is urged by the counsel for the accused at the earliest stage when the affidavit was filed by the accused himself in the Trial Court, which was permitted and later, the same was not the ground urged at 24 the appellate stage as well as while filing this petition. Though it is an acceptable ground, but the petitioner did not raise any such dispute at the initial stage. Therefore, he is not entitled to raise any such ground before this Court. Though allowing the affidavit by accused is not an irregularity, which can be curable, but, it is an illegality, which cannot be cured and the matter can be remanded back for de novo trial. However, in the above said case in a similar situation, Hon'ble Apex Court instead of remanding the matter to the Trial Court, after long lapse of period for de novo trial, disposed of the mater by remanding the same to the High Court for giving a finding as to whether the trial held by the Magistrate was of summary trial or summons trial, which were conducted by the Trial Court. Therefore, when the evidence affidavit of the accused was filed 11 years back and when no objection is raised by the complainant and when the Court accepted the evidence of the accused under Section 316 of Cr.P.C. and allowed the complainant to cross-examine the accused and there was no dispute throughout filing of the appeal 25 and this revision petition before this Court and for the first time the contention taken by the learned counsel for the accused during the course of arguments cannot be acceptable. Therefore, the grounds urged by the learned counsel for the accused is rejected.
18. The third ground urged by learned counsel for the petitioner is that the trial Court, while recording the evidence, conducted the summary proceedings, but there were 4 to 5 judges transferred and assumed charges and the evidence was recorded by the predecessors. Therefore, the subsequent Judge cannot pass judgment based upon the evidence recorded by their predecessors, and there is a bar under Section 326(3) of Cr.P.C to pass judgment by the successor Judge and also there is a bar under Section 43 of the N.I Act. In support of his contention, learned counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court in the case of Nitinbhai Saevatilal Shah and another vs. Manubhai Manjibai Panchal and another reported in AIR 2011 SC 3076: 26
"(A) Criminal P.C. (2 of 1974), S.326, S.264 -
Power of successor Magistrate - Case tried summarily - Successor Magistrate has no authority to appreciate evidence only on basis of evidence recorded by his predecessor - He has got to try case de novo - No amount of consent by parties can confer jurisdiction on successor Magistrate.
(B) Criminal P.C. (2 of 1974), S.461, S.326 - Curing of irregularities - Successor Judge u/S.326(3) appreciated evidence recorded by his predecessor on summary trial of case - Not a case of Irregularity but want of competency
- Defect cannot be validated u/S.465 of the Code.".
The said principle was followed by the Hon'ble Supreme Court in another case in Indian Bank Association and others vs. Union of India and others reported in (2014) 5 SCC 590. The Hon'ble Apex Court issued guidelines to the Trial Court as how to deal with Section 27 138 of the N.I Act at paragraph-23 of the judgment is as follows;
"23. Many of the directions given by the various High Courts, in our view, are worthy of emulation by the criminal courts all over the country dealing with cases under Section 138 of the Negotiable Instruments, Act, for which the following directions are being given:
23.1. The Metropolitan Magistrate/ Judicial Magistrate (MM/JM), on the day when the complaint under Section 138 of the Act is presented, shall scrutinize the complaint and, if the complaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order, take congnizance and direct issuance of summons.
23.2. The MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post as well as by e-
mail address got from the complainant. The court, in appropriate cases, may take the assistance of the police or the nearby court to 28 serve notice to the accused. For notice of appearance, a short date be fixed. If the summons is received back un-served, immediate follow-up action be taken.
23.3. The court may indicate in the summons that if the accused makes an application for compounding of offences at the first hearing of the case and, if such an application is made, the court may pass appropriate orders at the earliest.
23.4. The court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice under Section 251 Cr.P.C. to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for recalling a witness for cross-examination 23.5. The court concerned must ensure that examination-in-chief, cross-examination and re-examination of the complainant must be conducted within three months of assigning the 29 case. The court has option of accepting affidavits of the witnesses instead of examining them in court. The witnesses to the complaint and the accused must be available for cross- examination as and when there is direction to this effect by the court."
19. In view of the amendment to Sections 143 to 147 of the N.I. Act, the special enactment for procedure is to be tried under N.I. Act irrespective of summary proceedings provided under Sections 262 to 264 of Cr.P.C. Though, Section 323 of Cr.P.C (1) and (2) provides for power of the successor judge to dispose off the matter in which evidence was recorded by the earlier Presiding Officer, but there is a bar under Section 326(3) of the Cr.P.C. in respect of summary proceedings. The said principle is laid down by the Hon'ble Supreme Court in the case of Nitinbhai Saevatilal Shah and another vs. Manubhai Manjibhai Panchal and another reported in AIR 2011 SC 3076. However, the Hon'ble Supreme Court in the subsequent judgment in the case of Mehsana Nagrik 30 Sahkari Bank Limited vs. Shreeji Cab Company and others reported in (2014) 13 SCC 619, has clarified that no need for de novo trial by successive Magistrate, if the predecessor Magistrate has recorded evidence in a summary manner. Otherwise successor Magistrate can proceed from where the predecessor Magistrate had left. At para-5 of the judgment it has been held as follows;
"Mr. Huzefa Ahmadi, learned Senior Counsel appearing for the appellant Bank pointed out that the law laid down by this Court in the above authority is that when a proceeding is conducted as a summary trial, and when one Magistrate has partly heard the case and is succeeded by another Magistrate, that second Magistrate has to rehear the whole case afresh and he cannot start from the stage the first Magistrate left it. There was no question of the High Court asking the entire matter to be looked into by another Magistrate de novo, in the present case because, in fact, the evidence had not been recorded in a summary manner, but it was recorded in full. Mr. Sanjanwala, learned counsel appearing for the respondents, on the other hand, submits that the law laid 31 down in Nitinbhai Saevatilal Shah v. Manubhai Manjibhai Panchal be followed."
20. In a subsequent judgment, the Hon'ble Supreme Court in the case of J.V. Baharuni and another vs. State of Gujarat and another reported in (2014) 10 SCC 494; has held as follows;
"A. Criminal Procedure Code, 1973 -
S.326(3) - Bar under S.326(3) on successor Magistrate to act on evidence recorded by his predecessor - Manner in which to be applied - Remand for de novo trial by appellate court - When warranted - case tried in substance as regular summons case and not in summary way - Need for enquiry into facts of case as to whether it was tried in substance in summary way or regularly - Summary trial - What is not
- Held, where in a case that can be tried summarily, court records evidence elaborately and in verbatim and gives defence full scope to cross-examine witnesses, such procedure adopted is indicative that it is not summary procedure - Before arriving at any conclusion with regard to nature of trial, there should be 32 proper application of judicial mind and evidence on record must be thoroughly perused - Thus, when case in substance is not tried in summary way, though triable summarily, and is tried as regular summons case, successor magistrate need not hear the case de novo and can act on evidence recorded by his predecessor to decide the case B. Criminal Procedure Code, 1973 - Ss.
386(a), 378 and 326(3) - Direction for retrial or de novo trial in appeal against acquittal - When warranted -Principles summarised - Held, de novo trial is only for exceptional cases when the finding of acquittal is on a total misreading and perverse appreciation of evidence C. Criminal Procedure Code, 1973 - Ss.262 to 265 - Trial whether in substance was summary in nature - Matters to be considered
- Indicated - Words and phrases - "Summary trial" and "Regular trial" - Difference between
- Some of the steps taken in trial which may indicate difference between both modes of trial, explained."
33
21. In the above case, the Hon'ble Apex Court directed the First Appellate Court to give findings in respect of manner of recording evidence by the Trial Court by summary trial or summons trial. Then only direct the Court for de novo Trial. Therefore, this Court required to give findings in respect of the manner of proceedings held by the Trial Court for the purpose of remanding the case. On this background, learned counsel for the respondent brought to the notice of this Court the manner of evidence recorded by the Trial Court in the case on hand which goes to show that the evidence of the complainant witness has been recorded by the Magistrate on 24.02.1999. Further, examination-in-chief was recorded on 17.06.2000, later it was deferred for cross-examination. Then on 22.12.2000, the cross-examination of the accused was commenced. The cross-examination runs about 5½ pages and further cross-examination was deferred. Then further cross- examination of the witness was recorded on 31.01.2001. Again four pages of cross-examination was recorded. Again further cross-examination was recorded on 34 11.04.2001 for about two pages. Thereafter, on 07.06.2001, again more than one page of cross- examination was recorded. Thereafter, it was deferred. Again on 12.02.2005, further cross-examination was recorded which was completed on 12.12.2005. The examination-in-chief of PW.1 was recorded for almost three pages and thereafter, the cross-examination was done for almost 14 pages. Thereafter, further examination in-chief was held almost 19 pages of evidence of PW.1 has been recorded like a warrant trial. Thereafter, the accused filed an affidavit evidence for about four pages and then 3 pages of cross-examination was done by the complainant. The manner of recording of evidence clearly goes to show that the sum and substance of the case was not recorded in a summary manner by the Magistrate. On the other hand, each and every question was recorded as it is put by the counsels. On perusal of the manner in which the evidence was recorded, clearly goes to show that the Trial Court though not mentioned whether the case was tried either as a summary proceedings or as 35 summons case, but it was recorded and tried as summons case. Therefore, as held by the Hon'ble Supreme Court in the case of Mehsana Nagrik (supra) and the subsequent case in J.V. Baharuni (supra) and other cases, this Court has held that the evidence is recorded by the Trial Court not as summary proceedings, but as a summons case. Apart from that, counsel for the accused has not raised any objection before the Trial Court immediately when the Magistrate was transferred and the successor Magistrate assumed charges for recording the evidence or continuing the evidence by the said Judge. Therefore, as held by the Hon'ble Supreme Court, when the counsel for the accused has not objected at the earliest point of time regarding the manner of the proceedings before the Magistrate when the new Magistrate assumed the charges, and the said contention was also not taken before the First Appellate Court while filing the appeal, therefore, the contention taken by learned counsel for the appellant/accused that the evidence recorded by the Trial Court by the earlier Judge and that the subsequent Judge has no power to pass 36 judgment, cannot be accepted. And when the Magistrate conducted the proceedings as summons case, it is not required to set aside the judgment and remand the matter for de novo trial. Therefore, the third ground urged by learned counsel for the petitioner is also rejected.
22. Learned counsel for the petitioner has taken other general contentions that there is no document executed by the accused-petitioner for the loan of Rs.1,50,000/- to support the cheque and the respondent has also not declared the said amount in the income tax and with regard to closing of the account by him in the year 1995 itself and all the cheque leaves were exhausted by the accused and even encashed in 1995 itself etc. These aspects were already considered by both the Courts below. Apart from that when the complainant and accused were close friends and neighbours, the question of getting execution of any other documents along with the cheque does not arise. That apart, the notice was issued to the accused prior to filing of the complaint and he has not 37 replied and denied the issuance of the cheque and taken any defence at the earliest point of time. Therefore, both the Courts below have rightly rejected the said contention and Exs.D.1 and D.2 produced by the accused-petitioner.
23. On overall perusal of the evidence and documents on record, there is nothing to infer that the judgment of conviction and sentence passed by the Courts below call for interference by this Court with regard to either propriety, correctness or legality of the findings. Therefore, the petition is devoid of merits and is liable to be dismissed. Accordingly, the Criminal Revision Petition is dismissed.
SD/-
JUDGE mv