Karnataka High Court
M/S. Mahathru Technologies, vs M/S Creative Infotech on 19 November, 2020
Equivalent citations: AIRONLINE 2020 KAR 2277
Author: Abhay S. Oka
Bench: Abhay S. Oka
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF NOVEMBER, 2020
PRESENT
THE HON'BLE SHRI.ABHAY S. OKA, CHIEF JUSTICE
AND
THE HON'BLE SHRI.JUSTICE ASHOK S.KINAGI
CRIMINAL PETITION NO.1329 OF 2020
Between:
M/s. Mahathru Technologies,
By its Proprietor,
Mrs. Holladagadde Giddegowda Pranitha,
W/o Sharath Gowda,
Aged about 30 years,
No.18/2, 1st Floor, 12th Cross, 8th Main,
Wilson Garden, Bengaluru - 560 027.
Also at be served at
M/s. Mahathru Technologies,
By its Proprietor,
Mrs. Holladagadde Giddegowda Pranitha,
B-606, 6th Floor, Krishna Block,
K.H.B. Games Village,
Koramangala,
Bengaluru - 560 047.
. . . Petitioner
(By Shri. S. Balakrishna - Advocate)
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And:
M/s Creative Infotech
Represented by its Proprietor,
Dr.Mohit R. Hegde,
S/o Raghuram Hegde,
Aged about 47 years,
S108, 1st Floor, South Block,
Manipal Centre Dickenson Road,
Bengaluru - 560 042.
. . . Respondent
(By Shri. M.T. Nanaiah - Senior Counsel
for Rachita Nanaiah - Advocate)
This criminal petition is filed under Section 482 of Cr.P.C.,
by the Advocate for the petitioner praying to asset aside the order
passed by LVII Additional City Civil and Sessions Judge, Mayo
Hall unit, Bengaluru in Crl. R.P. No.25078/2019 dated 30.01.2020
and restore the order of the trial Court passed by XV Additional
Judge and member, MACT., Court of Small Causes, Mayo Hall
Unit, Bengaluru in C.C.No.60105/2018, dated 09.05.2019,
converting summary trial into warrant trial.
As per the order of Hon'ble the Chief Justice dated
13.07.2020, this petition is ordered to be posted before this
Bench to consider the following question of law formulated by the
learned Single Judge dated 29.06.2020:
"Whether in a case for offence punishable under Section
138 of the Negotiable Instruments Act, 1881, the Court of
Magistrate exercising its power under the second proviso to
Section 143(1) of the Negotiable Instruments Act, if it appears to
the said Court that it is undesirable to try the case summarily,
after recording reasons, can proceed to try/hear the said case as
a warrant case?".
3
This criminal petition/reference case having been heard and
reserved, coming on for pronouncement of Order, this day, the
Chief Justice pronounced the following:
ORDER
The learned Single Judge, by order dated 29th June, 2020, formulated the following question of law for being decided by a larger Bench:
"Whether in a case for offence punishable under Section 138 of the Negotiable Instruments Act, 1881, the Court of Magistrate exercising its power under the second proviso to Section 143 (1) of the Negotiable Instruments Act, if it appears to the said Court that it is undesirable to try the case summarily, after recording reasons, can proceed to try/hear the said case as a warrant case?".
2. The learned Single Judge found that there were conflicting views expressed by the coordinate Benches on the above issue. He found that a learned Single Judge of this Court, in the case of M/S. Mesh Trans Gears Private Limited, Bangalore -vs- Dr. R. Parvathareddy - ILR 2014 KAR 5237 held that in a complaint alleging an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the said Act of 4 1881'), the learned Magistrate has an option to try the case as a summons case when he is of the view that it is undesirable to try the case summarily. However, another learned Single Judge, in the case of Mahendra Kumar -vs- Gangamma.B - ILR 2018 KAR 4761, by relying upon a decision of another learned Single Judge rendered in the case of M/S. Leo Granex -vs- M/S. Pavillion Granites & others - ILR 2009 KAR 4062 held that if the learned Magistrate is of the opinion that it is undesirable to proceed with the trial of a complaint filed under Section 138 of the said Act of 1881 by following summary procedure, depending upon the complexity of the case, by invoking the power under Section 143 of the said Act of 1881, he can convert the summary triable case into a warrant triable case. As per the order dated 13th July, 2020 passed by the Chief Justice on the administrative side, the case is placed before this Bench for deciding the question quoted above. By Order dated 7th September 2020, this Court appointed Sri. Vikram Huyilgol, learned Additional Government Advocate as Amicus Curiae to assist the Court.
3. Though we are not concerned in this reference with the facts of the case, for the sake of convenience, we are briefly 5 referring to few relevant factual aspects. The respondent- complainant has filed a private complaint under Section 138 of the said Act of 1881. The petitioner is the accused in the said complaint. Based on the application purportedly made by the petitioner-accused under Section 259 of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C'), the learned XV Additional Judge and 23rd Additional Chief Metropolitan Magistrate, Court of Small Causes, Mayo Hall unit, passed an order dated 9th May, 2019 and directed that the complaint be converted from summary trial to a warrant trial and procedure of warrant trial shall be followed. For impugning the said order dated 9th May, 2019 passed in C.C.No.60105/2018, the respondent-complainant filed Criminal Revision Petition No.25078/2019 under Section 397 of Cr.P.C before the LVII Additional City Civil and Sessions Judge, Mayo Hall Unit (CCH-58), Bengaluru. By the Judgment and order dated 30th January, 2020, the learned Session Judge has proceeded to set aside the order dated 9th May, 2019 and directed the learned Magistrate to proceed with the case from the stage at which it was pending on 9th May, 2019. Being aggrieved by the said Judgment and order dated 30th January, 2020, the 6 present petition has been filed by the petitioner-accused by invoking Section 482 of Cr.P.C.
4. The learned counsel appearing for the petitioner has taken us through the facts of the case. His primary submission is that in view of second proviso to sub-section (1) of Section 143 of the said Act of 1881, a learned Magistrate has a power to direct that instead of hearing the case summarily, it could be tried in the manner provided under Cr.P.C. He pointed out that this power can be exercised if a learned Magistrate, during the course of the summary trial or at the trial of the case finds that the case is such that sentence of imprisonment for term exceeding one year may have to be passed or for any other reason, it is undesirable to try the case summarily. He invited our attention to the facts of the complaint filed by the respondent-complainant and the reasons given by the learned Magistrate in the order dated 9th May, 2019 and in particular, paragraph-11. He pointed out that the learned Magistrate found that the petitioner-accused has challenged the cognizance order itself and has taken a serious defence based on misuse of unsigned cheque. He submitted that though, in normal course, the provisions of Sections 262 to 265 of Cr.P.C 7 which are applicable to a summary trial have to be applied to a trial of a complaint filed under Section 138 of the said Act of 1881, Section 143 confers a power on a Magistrate to direct trial of such a complaint filed under Section 138 of the said Act of 1881 as a warrant case. He pointed out that Section 259 of Cr.P.C confers power on the learned Magistrate to follow the procedure for trial of warrant case in a case where the procedure regarding summons case is applicable. He urged that the view taken by the learned Single Judge in the case of Mahendra Kumar (supra) is well supported by law.
5. The learned counsel appearing for the respondent- complainant submitted that the decision of the Apex Court in the case of Indian Bank Association and others -vs- Union of India and others1 settles the issue. He urged that in view of the fact that Section 143 of the said Act of 1881 starts with non obstante clause, Section 143 is mandatory in nature and Section 259 of Cr.P.C will have no application.
6. The learned counsel who is appointed as Amicus Curiae relied upon a decision of the Apex Court in the case of J.V. 1 (2014) 5 SCC 590 8 Baharuni and anothers -vs- State of Gujarat and another2. He submitted that in paragraph 60.2 of the said decision, the Apex Court has specifically held that the learned Magistrate has a discretion under Section 143 of the said Act of 1881, either to follow procedure for a summary trial or procedure for a summons trial. He submitted that in fact, that is the direction issued by the Apex Court under Article 142 of the Constitution of India, as can be seen from paragraph 62 of the said decision. The learned Amicus Curiae also pointed out a decision of the learned Single Judge of Bombay High Court in the case of Shriniwas s/o Bacchulalji Padiya -vs- Akola Janata Commercial Co-Op Bank Ltd., Akola and another3.
7. We have given very careful consideration to the submissions made across the Bar. Section 143 of the said Act of 1881 reads thus:
"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 2 (2014) 10 SCC 494 3 2008 (5) Mh.L.J 161 9 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 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 on 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 10 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."
(emphasis added)
8. Under Section 138 of the said Act 1881, the maximum punishment for the offences alleged under the said section is of imprisonment for a term which may be extend to two years or with fine which may extend to twice the amount of the cheque, or with both. To understand the purport and the legal effect of the provision of sub-section (1) of Section 143 of the said Act of 1881, it is necessary to make a reference to relevant provisions of Cr.P.C. Under clause (x) of Section 2 of Cr.P.C, a 'warrant case' is defined as the case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. A "summons case" is defined under clause (w) of Section 2 of Cr.P.C to mean a case relating to an offence, which is not a warrant a case. Therefore, going by the provisions of 11 Cr.P.C, a case relating to an offence which is punishable for imprisonment for a term not exceeding two years is a summons case. Chapter XIX of Cr.P.C which contains the provisions of Sections 238 to 250 lays down the procedure to be followed for trial of warrant cases by the learned Magistrate. Chapter - XX of Cr.P.C which contains Sections 251 to 259 lays down the procedure to be followed for trial of summons cases by the learned Magistrates. Chapter XXI consisting of Sections 260 to 265 lays down the procedures to be followed for summary trials. Sub-section (1) of Section 260 of Cr.P.C lays down which cases can be tried summarily. Section 260 of Cr.P.C reads thus:
"260. Power to try summarily.--(1) Notwithstanding anything contained in this Code--
(a) any Chief Judicial Magistrate;
(b) any Metropolitan Magistrate;
(c) any Magistrate of the first class specially empowered in this behalf by the High Court, may, if he thinks fit, try in a summary way all or any of the following offences--
(i) offences not punishable with death, imprisonment for life or imprisonment for a term exceeding two years;12
(ii) theft, under Section 379, Section 380 or Section 381 of the Indian Penal Code (45 of 1860), where the value of the property stolen does not exceed two thousand rupees;
(iii) receiving or retaining stolen property, under Section 411 of the Indian Penal Code (45 of 1860), where the value of the property does not exceed [two thousand rupees;
(iv) assisting in the concealment or disposal of stolen property, under Section 414 of the Indian Penal Code (45 of 1860), where the value of such property does not exceed two thousand rupees;
(v) offences under Sections 454 and 456 of the Indian Penal Code (45 of 1860);
(vi) insult with intent to provoke a breach of the peace, under Section 504, and criminal intimidation punishable with imprisonment for a term which any extend to two years, or with fine, or with both], under Section 506 of the Indian Penal Code (45 of 1860);
(vii) abetment of any of the foregoing offences;
(viii) an attempt to commit any of the foregoing offences, when such attempt is an offence;
(ix) any offence constituted by an act in respect of which a complaint may be made 13 under Section 20 of the Cattle Trespass Act, 1871 (1 of 1871).
(2) When, in the course of a summary trial it appears to the Magistrate that the nature of the case is such that it is undesirable to try it summarily, the Magistrate shall recall any witnesses who may have been examined and proceed to re-hear the case in the manner provided by this Code."
9. In view of clause (i) of sub-section (1) of Section 260 of Cr.P.C., which starts with non-obstante clause, sub-section (1) of Section 260 of Cr.P.C overrides the other provisions of Cr.P.C. Therefore, in view of sub-clause (i) of sub-section (1) of Section 260, in case of the offences which are not punishable with death or imprisonment for life or imprisonment for a term exceeding two years, any Chief Judicial Magistrate, any Metropolitan Magistrate or any Magistrate of the First Class specially empowered in this behalf by the High Court can try a case in a summary way in a manner laid down under Sections 262 to 265 of Cr.P.C. Thus, when a case involving the offences not punishable with imprisonment for a term exceeding two years is being tried by a Chief Judicial Magistrate, a Metropolitan Magistrate or a Magistrate of the First Class specially empowered in this behalf 14 by the High Court, the Court can order that the case should be tried summary way instead of following the procedure contemplated for summons trial. In normal course, a case involving offences not punishable with imprisonment for a term exceeding two years will be a summons case, in view of clause (w) of Section 2 read with clause (x) of Section 2 of Cr.P.C.
10. Hence, but for sub-section (1) of Section 143 of the said Act of 1881, a complaint filed alleging an offence punishable under Section 138 of the said Act of 1881 would have been a summons triable case. However, in view of non obstante clause contained in sub-section (1) of Section 143 of the said Act of 1881, all complaints alleging an offence punishable under Section 138 of the said Act of 1881 shall be tried by a Judicial Magistrate of First Class or by a Metropolitan Magistrate by following the procedure contained under the provisions of Sections 262 to 265 (both inclusive) of Cr.P.C. The effect of first proviso to sub- section (1) of Section 143 of the said Act of 1881 is that when a Judicial Magistrate of First Class is trying a case punishable under Section 138 of the said Act of 1881, even if he is not specially empowered in this behalf by the High Court as 15 contemplated by sub-section (1) of Section 262 of Cr.P.C, he must try the case by applying the provisions of Sections 262 to 265 of Cr.P.C., insofar as the same apply to such trial. However, in view of the first proviso to sub-section (1) of Section 143 of the said Act of 1881, when a Metropolitan Magistrate or a Judicial Magistrate of First Class convicts an accused after trying the case in summary manner, he cannot pass a sentence of imprisonment for a term exceeding one year and impose fine exceeding a sum of Rs.5000/-. The second proviso to sub- section (1) of Section 143 deals with a case where, at the commencement of trial or in the course of a summary trial as contemplated by sub-section (1) of Section 143, it appears to the learned 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 for any other reason it is undesirable to try the case summarily, the learned Magistrate after hearing the parties can record an order to that effect and thereafter recall the witnesses who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code. Thus, only when the learned Magistrate finds that one of the contingencies set out in the second proviso to sub-section (1) of 16 Section 143 exists, he can pass an order to that effect and hear or rehear the case, as the case may be, in the manner provided by Cr.P.C. As the maximum sentence prescribed for the offence punishable under Section 138 of the said Act of 1881 cannot exceed two years, in view of the definition of "warrant case" in clause (x) of Section 2 of Cr.P.C, the case cannot be tried as a warrant case and, therefore, once the power under second proviso is exercised, the complaint filed alleging an offence punishable under Section 138 of the said Act of 1881 becomes a summons case as contemplated by clause (w) of Section 2 of Cr.P.C.
11. Now, the question is whether the learned Magistrate trying a case under Section 138 of the said Act of 1881 can exercise his power under Section 259 of Cr.P.C, which could be exercised in case of a summons case. Section 259 of Cr.P.C. reads thus:
"259. Power of Court to convert summons-cases into warrant-cases.--When in the course of the trial of a summons-case relating to an offence punishable with imprisonment for a term exceeding six months, it appears to the Magistrate that in the interests of justice, the offence should be tried in accordance with the procedure for the trial of warrant-cases, such Magistrate may proceed to re-17
hear the case in the manner provided by this Code for the trial of warrant-cases and may recall any witness who may have been examined."
(emphasis added)
12. In short, the question is when the learned Magistrate passes an order contemplated by the second proviso to sub- section (1) of Section 143 of the said Act of 1881, whether instead of conducting the trial like a trial of a summons case, he can exercise power under Section 259 of Cr.P.C and direct that the case shall be tried as a warrant case.
13. By virtue of sub-section (1) of Section 143 which starts with non obstante clause, the complaints alleging an offence punishable under Section 138 of the said Act of 1881 will have to be decided by following the summary procedure contemplated by Sections 262 to 265 (both inclusive). Hence, such cases are not summons cases as sub-section (1) of Section 143 overrides the provisions of Cr.P.C.
14. The second proviso is an exception to sub-section (1) of Section 143 of the said Act of 1881 which provides that only in two contingencies stated therein, the cases can be decided in the 18 manner provided by Cr.P.C instead of following summary procedure. The said two contingencies are (i) when, at the commencement of, or in the course of, a summary trial, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for term exceeding one year may have to be passed and (ii) for any other reason, the learned Magistrate is of the view that it is undesirable to try the case summarily. Since the maximum punishment prescribed for the offence punishable under Section 138 of the said Act of 1881 is imprisonment for a term which may be extend to two years, as per the provisions of the Cr.P.C, summons procedure will have to be adopted for trial of a complaint filed alleging offence under Section 138 of the said Act of 1881, when the learned Magistrate exercises his power under the second proviso to sub-section (1) of Section 143. Thus, when the power is exercised by the learned Magistrate under the second proviso to sub- section (1) of Section 143, the complaint filed alleging an offence under Section 138 of the said Act of 1881 will have to be tried by following the procedure applicable to a summons cases. Sub- section (1) of Section 143 of the said Act of 1881 introduces a special regime of procedure to try a complaint for an offence 19 punishable under Section 138 of the said Act of 1881. A complaint under Section 138 of the said Act of 1881 can become a summons case only in a case to which second proviso to sub- section (1) of Section 143 of the said Act of 1881 is made applicable. Thus, the procedure to be followed for deciding such cases is governed by Section 143 of the said Act of 1881.
15. Sub-section (2) of Section 143 specifically provides that so far as practicable, consistently with the interests of justice, the trial of the cases alleging an offence punishable under Section 138 shall be continued from day to day until its conclusion, unless the Court finds the adjournment of the trial beyond the following day for the reasons to be recorded in writing. Sub-section (3) of Section 143 lays down that trial shall be concluded 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. Consistent with these provisions, the Apex Court, in the case of Indian Bank Association (supra) has issued directions laying down a time bound schedule for deciding such cases.
16. There is a substantial difference between the procedure prescribed by the provisions of Cr.P.C for trial of a 'warrant case' 20 and trial of a 'summons case'. In case of trial of a warrant case, under the provisions of Section 245 of Cr.P.C, the learned Magistrate is bound to consider the plea of discharge for the offence alleged against the accused. Section 246 of Cr.P.C, provides for framing of charge. Section 244 contemplates recording of evidence before charge. However, under the procedure prescribed for trial of a summons case, there is no requirement of framing of charge. Thus, between the two, the procedure applicable to a summons case is less cumbersome and expeditious, as compared to the procedure applicable to a warrant case. A trial in a summons case can be concluded more expeditiously than a trial of warrant case, as in the case of trial of a warrant case, a charge is required to be framed which is not at all the requirement in case of a summons case.
17. As observed earlier, by virtue of the provisions contained in the second proviso to sub-section (1) of Section 143 of the said Act of 1881, only by way of exception, the learned Magistrate can adopt the procedure for summons case.
18. At this juncture, once again it is necessary to refer to Section 259 of Cr.P.C, which reads thus:
21
"259. Power of Court to convert summons-cases into warrant-cases.--When in the course of the trial of a summons-case relating to an offence punishable with imprisonment for a term exceeding six months, it appears to the Magistrate that in the interests of justice, the offence should be tried in accordance with the procedure for the trial of warrant-cases, such Magistrate may proceed to re- hear the case in the manner provided by this Code for the trial of warrant-cases and may recall any witness who may have been examined."
(emphasis added) As stated earlier, only in limited cases where the second proviso to sub-section (1) of Section 143 of the said Act 1881 is applicable, the learned Magistrate can convert the case into a summons case. In view of overriding effect of sub-section (1) of Section 143 of the said Act 1881, a case under Section 138 is not a summons case. It must be tried summarily unless it can be tried as summons case by exercising the power under second proviso to sub-Section (1) of Section 143. The power under Section 259 22 of Cr.P.C can be exercised only in a case which is triable as a summons case. A case under Section 138 of the said Act of 1881 is not a summons case in view of the fact that sub-section (1) of Section 143 overrides the provisions of Cr.P.C. Therefore, Section 259 of Cr.P.C, cannot be allowed to be invoked by the learned Magistrate after passing an order under second proviso to sub-section (1) of Section 143 of the said Act of 1881. The object of introducing Chapter XVII into the said Act of 1881 containing Sections 138 to 142 by the Act of 66 of 1988 with effect from 1st April 1989 was to enhance the acceptability of the cheques in settlement of liabilities by making the drawer liable for penalties in case of bouncing/dishonor of cheques. If the learned Magistrates are allowed to invoke power under Section 249 of Cr.P.C by adopting the procedure for a warrant case, it will completely defeat the very object of introducing Chapter XVII, as there will not be an expeditious disposal of trial in a complaint filed alleging an offence punishable under Section 138 of the said Act of 1881. Therefore, the power of the learned Magistrate under the second proviso to sub-section (1) of Section 143 of the said Act of 1881 is confined only to converting a complaint under Section 138 of the said Act of 1881 into a summons triable case. 23 The power conferred on the Magistrate under the second proviso to sub-section (1) of Section 143 does not enable the learned Magistrate to exercise power under Section 259 of Cr.P.C and to convert a complaint filed alleging an offence under Section 138 of the said Act of 1881 into a warrant triable case.
19. At this stage, we may make useful reference to the decision of the Apex Court in the case of J.V. Baharuni (supra). Paragraph 60, 60.1 and 60.2 of the said decision are relevant for our consideration which read thus:
"60. However, to summaries and answer the issues raised herein, the following directions are issued for the courts seized of with similar cases:
60.1. All the subordinate courts must make an endeavour to expedite the hearing of cases in a time-bound manner which in turn will restore the confidence of the common man in the justice-
delivery system. When law expects something to be done within prescribed time-limit, some efforts are required to be made to obey the mandate of law.
60.2. The learned Magistrate has the discretion under Section 143 of the NI Act either 24 to follow a summary trial or summons trial. In case the Magistrate wants to conduct a summons trial, he should record the reasons after hearing the parties and proceed with the trial in the manner provided under the second proviso to Section 143 of the NI Act. Such reasons should necessarily be recorded by the trial court so that further litigation arraigning the mode of trial can be avoided."
(emphasis added)
20. From the dictum of the Apex Court in paragraph 60 to 60.2 of the above case, it is apparent that the directions issued thereunder are under Article 142 of the Constitution of India. What is held by the Apex Court in paragraph 60.2 is that the discretion conferred on the learned Magistrate under Section 143 of the said Act of 1881 is confined to either following a summary trial procedure or a summons trial procedure. Therefore, the decisions of the learned Single Judges of this Court holding that a learned Magistrate trying the complaints under Section 138 of the said Act of 1881 can convert the complaints into warrant triable cases are completely contrary to the plain reading of the provisions of Section 143 (1) and are also contrary to the specific 25 directions issued by the Apex Court in the case of J.V. Baharuni (supra).
21. If the learned Magistrates are allowed to convert the complaints filed alleging an offence punishable under Section 138 of the said Act of 1881 into a warrant triable case, the consequence will be disastrous as the trial will be prolonged. Lot of time will have to be devoted for hearing of discharge application and for framing of charge. It will amount to defeating the very object of introducing Chapter XVII containing Sections 138 to 142 in the said Act of 1881 with effect from 1st April 1989.
22. Therefore, for the foregoing reasons, we answer the question formulated by the learned Single Judge in the order dated 29th June 2020 in the negative. It is held that the power of the learned Magistrate to convert the trial of a complaint under Section 138 of the said Act of 1881 under the second proviso to sub-section (1) of Section 143 is confined only to converting the case into a summons triable case.
We record our appreciation for the able assistance rendered by learned Amicus Curiae.
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Registry is directed to place the criminal petition before the concerned Single Bench having roster for deciding the same in accordance with the law laid down in this Judgment.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE Vr