TMI Blog2015 (3) TMI 858X X X X Extracts X X X X X X X X Extracts X X X X ..... as the High Court in each matter before us. There is no doubt, as per the record, learned Magistrate has not specifically mentioned that the trial was conducted as summons case or summary case. Though in the record of SLP(Crl) No. 734 of 2013, at some places the word 'summary' was mentioned as regards to the nature of proceedings of the case, having given our anxious and thorough consideration, we found that the word 'summary' used therein was with reference to Chapter XXII of Cr.P.C., 1882 and it does not relate to the 'summary trial' envisaged under Section 143, of the N.I. Act. Pertinently, before the Trial Court the Suit No. 4457 of 2001 has been referred at some places as 'Summary Suit' and at some other places it has been referred as 'Civil Suit'. Similarly, the case number 5294 of 1998 has been shown at some places as Summary Case and at some other places it was shown as Criminal Case. After a careful examination of the record, we came to the conclusion that the word 'summary' used at some places was with reference to summary trials prescribed under Cr.P.C. Needless to say that the summary trial as preferred mode of trial in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt adequately shows that regular trial was undertaken in these matters. Hence, in our considered opinion, the matters are required to be remanded back to the High Court for consideration on merits. We make it clear, that we have not expressed any opinion on the merits of the cases. The High Court should, by conducting an independent inquiry and by reasoned order, dispose of the cases on their own merits as expeditiously as possible, preferably within a period of three months due to the fact that these cases are languishing for almost 14 years. - Decided in favour of appellant. - CRIMINAL APPEAL NOS. 2221 TO 2223 OF 2014 - - - Dated:- 16-10-2014 - MRS. RANJANA PRAKASH DESAI AND N.V. RAMANA, JJ. For The Petitioner : Aniruddha P. Mayee and Haresh Raichura, Advs. For The Respondent : Kunal Verma, Advs. Giss Anthony, Advs. Ms. Hemantika Wahi, Vimal Chandra S. Dave and Rameshwar Prasad Goyal, Advs. JUDGMENT N.V. Ramana, J. - Leave granted. 2. The undisputed facts of the appeal arising out of S.L.P. (Crl.) No. 5623 of 2012 are that appellant No. 2 is the owner of appellant No. 1 Company. The respondent No. 2, who is in the business of manufacture, process and ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .I. Act, and the successor Magistrate could not have relied upon the evidence recorded by his predecessor. Placing reliance on this Court's decision in Nitinbhai Saevatilal Shah v. Manubhai Manjibhai Panchal AIR 2011 SC 3076, the complainant submitted that the matter be remanded to the Trial Court for a de novo trial. 6. The High Court observed that the learned Magistrate who delivered the judgment was not in a position to appreciate the evidence properly and decide the matter effectively to do substantial justice as he formed the opinion relying upon the evidence recorded by his predecessor. It, therefore, caused serious prejudice to the complainant as an order of acquittal was passed. Hence, the High Court allowed the appeal and remanded the matter to the Trial Court for a fresh trial in accordance with law after giving opportunity to the parties. 7. Dissatisfied with the High Court's judgment, the accused-appellants assailed it in appeal before this Court. On 6th August, 2012, this Court while issuing notice, stayed proceedings going on before the learned Magistrate in pursuance of the remand order passed by the High Court. 8. The brief facts of S.L.P. (Crl.) No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nant was the owner of Ranjan High School in Bapunagar, Ahmedabad and the accused-appellant was engaged with the activities of the school. The accused- appellant took hand loan of ₹ 3,57,000/- from the respondent No. 1. To fulfil his obligation, the appellant issued a cheque No.481551 dated 25.8.1998 for ₹ 2,97,000/- and another cheque No. 481552 dated 25.10.1998 for ₹ 60,000/- drawn on Gandhinagar Nagrik Co-operative Bank, Sachivalaya Branch, Gandhinagar. Upon presentation, the cheques were returned by the bank unpaid on account of insufficient funds. A notice was served upon the accused-appellant on 17.11.1998 demanding payment and upon his failure to comply with the notice, the respondent No.1-complainant filed criminal complaint before the Trial Court. 13. Accused pleaded not guilty and after conducting the trial. The Trial Court by an order dated 7.8.2009 acquitted the appellant-accused holding him innocent as per Section 255(1) of the Cr.P.C. Aggrieved thereby, the respondent No. 1 preferred appeal under Section 378 of Cr.P.C. before the High Court. The High Court, by the impugned judgment, observed that the case was transferred from one Metropolitan Magis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovo trial, failed to take into consideration the prejudice caused to the accused and further failed to follow the principles of natural justice. 17. Learned counsel, drawing our attention to the nature of 'summary trial', submitted that in the present case (SLP(Crl) No. 5623 of 2012), recording of the evidence of PW 1 was commenced on 19th December, 2002 and Sections 143 to 147 of the N.I. Act came to be inserted by the Negotiable Instruments (amendment and Miscellaneous Provisions) Act, 2002 only w.e.f. 6th February, 2003, empowering the Court to try all offences under Chapter XVII of the N.I. Act 'summarily'. Thus, the change of law after the commencement of recording evidence cannot be applied to the present case and the judgment of the trial Court cannot be treated as a result of 'summary trial'. Moreover, the exercise undertaken by the learned Magistrate during the course of trial by examining the witnesses, marking of documents, recording of entire evidence in detail, cross examination and chief examination etc., shows that he tried the case not 'summarily' but in a regular way. For the simple reason that the learned Magistrate has failed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the N.I. Act. In the said judgment, Guideline No. 5 speaks in the following terms: (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 case. The court has option of accepting affidavits of the witnesses instead of examining them in the 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. This Court further directed that all the criminal Courts in the country dealing with Section 138 of the N.I. Act cases to follow the abovementioned procedure for speedy and expeditious disposal of those cases. In the trial of the present cases also, though it was not a summary trial, learned Magistrate has kept in mind the above mentioned procedure and scrupulously followed the same. 20. Learned counsel further submitted that Section 260, Cr. P.C. provides an option to the Magistrate either to try the case summarily or as a summons case. Relying on a decision of Bombay High Court in Pratibha Pandurang Salvi v. State of Maharashtra 2010 Crl. L.J. 730, and also a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he N.I. Act w.e.f. 6th February, 2013 shall be held to be retrospective in operation. 23. Having heard learned counsel for the parties at length, the following issues arise for our determination: 1. What is the legislative intent of the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 and the object of incorporating Section 143? 2. What are the factors, the appellate Court has to keep in mind while arriving at a conclusion about the procedure adopted by the Trial Court in conducting the trial? 3. In what circumstances a case should be remanded back for de novo trial? 24. The Legislature, having noticed that the prevailing Sections 138 to 142 of the N.I. Act could not completely achieve the desired results, has chosen to insert Sections 143 to 147 with an avowed object of speedy disposal of cases relating to dishonour of cheques. To achieve the purpose of speedy disposal , the Legislature has recommended a simplified procedure for trial of the offences under the N.I. Act i.e. 'summary trial'. The amendment to the Act also made the offence 'compoundable' as the punishment provided in the unamended Act was inadequate and the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate to conduct the case other than in summary manner. 27. This Court in Mandvi Co-operative Bank Ltd. (supra) after analyzing the objects and importance of Sections 143 to 147 of the N.I. Act, this Court observed that Section 143 of the Act gave power to the Court to try cases summarily. At Paras 20, 21, 25 29 of the said judgment, this Court observed: 20. It may be noted that the provisions of Sections 143, 144, 145 and 147 expressly depart from and override the provisions of the Code of Criminal Procedure, the main body of adjective law for criminal trials. The provisions of Section 146 similarly depart from the principles of the Evidence Act. Section 143 makes it possible for the complaints under Section 138 of the Act to be tried in the summary manner, except, of course, for the relatively small number of cases where the Magistrate feels 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. 21. It is, however, significant that the procedure of summary trials is adopted under Section 143 subject to the qualification as far as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eaningless duplication, apparently aimed at delaying the trial. 28. We find that in the case of Nithinbhai Saevantilal Shah (supra) the complainant examined himself along with other witnesses in support of his case and produced documentary evidence. The accused, however, did not lead any defence evidence but in his examination under Section 313 Cr.P.C., the accused stated that his signature was obtained on the blank paper by kidnapping him, written something on it and filed a false complaint against him. After recording evidence, the Metropolitan Magistrate came to be transferred. Therefore, he ceased to exercise jurisdiction. He was succeeded by another Magistrate before whom both parties, i.e. the complainant as well as the accused, filed a memo declaring that the parties had no objection to proceed with the matter on the basis of evidence recorded by the predecessor Magistrate in terms of Section 326, Cr.P.C. and on that basis, learned Magistrate considered the evidence led by the complainant and passed judgment convicting the appellants under Section 138 of the N.I. Act and sentenced them to suffer simple imprisonment for three months with fine of ₹ 3,000/-. Aggrieved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... succeeds the Magistrate who had recorded the whole or any part of the evidence in a trial to act on the evidence so recorded by his predecessor, does not apply to summary trials. The prohibition contained in sub-section (3) of Section 326 of the Code is absolute and admits of no exception. Where a Magistrate is transferred from one station to another, his jurisdiction ceases in the former station when the transfer takes effect. 15. Provision for summary trials is made in Chapter XXI of the Code. Section 260 of the Code confers power upon any Chief Judicial Magistrate or any Metropolitan Magistrate or any Magistrate of the First Class specially empowered in this behalf by the High Court to try in a summary way all or any of the offences enumerated therein. Section 262 lays down the procedure for summary trial and sub-section (1) thereof inter alia prescribes that in summary trials the procedure specified in the Code for the trial of summons case shall be followed subject to the condition that no sentence of imprisonment for a term exceeding three months is passed in case of any conviction under the chapter. 16. The manner in which the record in summary trials is to be maintai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court further held: 19. The cardinal principle of law in criminal trial is that it is a right of an accused that his case should be decided by a Judge who has heard the whole of it. It is so stated by this Court in the decision in Pyare Lal v. State of Punjab AIR 1962 SC 690. This principle was being rigorously applied prior to the introduction of Section 350 in the Code of Criminal Procedure, 1898. Section 326 of the new Code deals with what was intended to be dealt with by Section 350 of the old Code. 20. From the language of Section 326(3) of the Code, it is plain that the provisions of Sections 326(1) and 326(2) of the new Code are not applicable to summary trials. Therefore, except in regard to those cases which fall within the ambit of Section 326 of the Code, the Magistrate cannot proceed with the trial placing reliance on the evidence recorded by his predecessor. He has got to try the case de novo. In this view of the matter, the High Court should have ordered de novo trial. ** ** ** 22. As it has been seen that Section 326 of the new Code is an exception to the cardinal principle of trial of criminal cases, it is crystal clear that if that principle is viola ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heard the case for 14 more times and delivered judgment on 15th hearing i.e. on 12.09.2005. Thus by any stretch of imagination, the trial which extended over five years and was decided in over 82 hearings with elaborate cross examination, deposition and all trappings of regular trial cannot simply be termed as summary trial . 33. On perusal of record of other two cases (SLP (Crl.) Nos. 3332 of 2012 and 734 of 2013), we found the similar situation. The Complaint was taken up on 20th August, 2001 and the Trial Court decided the criminal case on 30th May, 2009 declaring the accused appellants as innocent, after conducting about 132 hearings. It is also evident from the record that in SLP(Crl) No. 734 of 2013, the criminal proceedings under the N.I. Act were initiated in December, 1998 before the Trial Court which came to be concluded by the judgment of the Metropolitan Magistrate on 7th August, 2009. Thus, during the period of about 11 years a total of 103 hearings took place and a detailed trial procedure had been followed. Going thereby, prima facie, it is difficult for us to accept that the case was tried summarily. 34. Moreover, these cases were decided by the same judge i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . A case under section 138 of the N.I. Act, which requires to be tried in a summary way as contemplated under section 143 of the Act, when in fact, was tried as regular summons case it would not come within the purview of section 326 (3) of the Code. In other words, if the case in substance was not tried in a summary way, though was triable summarily, and was tried as a summons case, it need not be heard de novo and the succeeding Magistrate can follow the procedure contemplated under section 326 (1) of the Code [See Ramilaben Trikamlal Shah v. Tube Allied Products 2007 ALL MR (Cri) 1637 (Bom.)]. 38. But where even in a case that can be tried summarily, the Court records the evidence elaborately and in verbatim and defence was given full scope to cross-examine, such procedure adopted is indicative that it was not summary procedure and therefore, succeeding Magistrate can rely upon the evidence on record and de novo enquiry need not be conducted [See A. Krishna Reddy v. State 1999 (6) ALD 279]. 39. In Bhaskar @ Prabaskar v. State [1999] 8 SCC 551, this Court observed: 15. The archaic concept was that the very same judicial personage who heard and recorded the evidence mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to save him from undergoing that agony once again for the very same case should be spared, unless such re-summoning is absolutely necessary to meet the ends of justice. 40. In Shivaji Sampat Jagtap v. Rajan Hiralal Arora 2007 CriLJ 122, the Bombay High Court observed thus: A case, which is triable as summarily, and in which the record of the proceedings has been prepared in accordance with the provisions of Section 263 and 264 of the Code could be stated to have been tried summarily for the purpose of Section 326(3) and in that case the evidence recorded by one Magistrate cannot be read in evidence by succeeding Magistrate. The succeeding Magistrate, however, in a case, where the procedure contemplated under Sections 263 and 264 of the Code in particular has not been followed, he need not hold a trial de novo. In short, if no record as per Sections 263 and 264 has been or is being maintained by the Magistrate and the case has been or is being tried as a regular summons case and not tried in a summary way as contemplated under Sections 262 to 265 of the Code, such case shall not be considered as tried in summary way, though triable summarily as provided for under Sub-secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te does not deem the case fit to try summarily, he shall record an order to that effect after hearing the parties. Just because this directive is not followed scrupulously by the Trial Court would itself not vitiate the entire trial and the appellate Court should not direct for a de novo trial merely on the ground that the Trial Court had not recorded the order for not trying the case summarily. 45. This Court in Bharati Tamang v. Union of India 2014 CriLJ 156 observed that at times of need where this Court finds that an extraordinary or exceptional circumstance arise and the necessity for reinvestigation would be imperative in such extraordinary cases even de novo investigation can be ordered. 46. In Babubhai v. State of Gujarat [2010] 12 SCC 254, this Court observed: Thus, it is evident that in exceptional circumstances, the court in order to prevent the miscarriage of criminal justice, if considers necessary, may direct for investigation de novo wherein the case presents exceptional circumstances. 47. The de novo trial of entire matter which should be ordered in exceptional and rare cases only when such course of fresh trial becomes indispensable to avert failure o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... former the long delay in conclusion of criminal trial should not operate against the continuation of prosecution and if the right of accused in the facts and circumstances of the case and exigencies of situation tilts the balance in his favour, the prosecution may be brought to an end. These principles must apply as well when the appellate Court is confronted with the question whether or not retrial of an accused should be ordered [See Mohd. Hussain @ Julfikar Ali (supra). 50. The Constitution Bench of this Court in Abdul Rehman Antulay. v. R.S. Nayak [1992] 1 SCC 225 considered right of an accused for speedy trial in the light of Article 21 of the Constitution and various provisions of the Code. The Constitution Bench also extensively referred to the earlier decisions of this Court in Hussainara Khatoon (I) v. Home Secretary, State of Bihar [1980] 1 SCC 81, Hussainara Khatoon v. Home Secretary, State of Bihar [1980] 1 SCC 93, Hussainara Khatoon v. Home Secretary, State of Bihar [1980] 1 SCC 98 and Raghubir Singh v. State of Bihar [1986] 4 SCC 481 and noted that the provisions of the Code are consistent with the constitutional guarantee of speedy trial emanating from Article 21. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but not as regular trial, the Court below gravely erred in remanding them to the Trial Court for a de novo trial. 56. It is worthwhile to mention that in one of the present cases, the Trial Court took about six years to acquit the accused and then High Court took about six and half years to remit the matter to the Trial Court on a technical ground of mode of trial i.e. being summary trial. Special Leave Petition against the order of High Court has been filed on 28th April, 2012. Thus, about 14 years have elapsed, without definitive determinative conclusion of the case on merits. Thus, the whole purport of expeditious trial under N.I. Act has been preposterously frustrated. 57. Thus, we are of the considered opinion that the Courts while dealing with the matters under the N.I. Act should keep in mind that the difference between summary and summons trial for the purpose of N.I. Act is very subtle but has grave repercussions in case of mistaken identification of trial which is de novo trial in the light of Sec 326 (3) of the Code. 58. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It should be limited to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally to remand matters to trial courts for de novo trial. There should be proper application of judicial mind and evidence on record must be thoroughly perused before arriving at any conclusion with regard to mode of trial. 61. However, to summarise and answer the issues raised herein, following directions are issued for the Courts seized off with similar cases: 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. 2. The learned Magistrate has the discretion under Section 143 of the N.I. Act either 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 N.I. Act. Such reasons should necessarily be recorded by the Trial Court so that further litigation arraigning the mode of trial can be avoided. 3. Th ..... 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