9911796707
TMI Blog2022 (4) TMI 1152X X X X Extracts X X X X X X X X Extracts X X X X ..... in that cheque No.524360 dated 6.07.2012 drawn on Bank of India, New Delhi for a sum of Rs. 1,29,74,692 had been issued by the petitioner towards existing part liability with an assurance that the cheque shall be encashed on its presentation in the bank. However, upon presentation thereof, the cheque was returned unpaid vide Nemo dated 17.07.2012 with remarks "funds insufficient" and "drawers signature differ". The same meant that not only the petitioner-accused did not have sufficient funds in his account but also the cheque did not match the specimen signatures available with the bank. A statutory notice under the Negotiable Instruments Act dated 21st July, 2012 was sent to the petitioner-accused, however, upon non-payment of the money, complaint in question was instituted and the petitioner-accused was summoned to face trial under Section 138 of the Negotiable Instrument Act vide order dated 23rd August, 2012. Considering the huge amount of the cheque the Trial Court vide order dated 24th August, 2013 held that the case may warrant an imprisonment of more than one year and as such it is undesirable to try the case in a summary manner. Accordingly, the case was tried as a summons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndment Act, 2002 has to be given effect to in its letter and spirit. Section 143 of the Act, as already indicated, has been inserted by the said Act stipulating that notwithstanding anything contained in the Code of Criminal Procedure, all offences contained in Chapter XVII of the Negotiable Instruments Act dealing with dishonour of cheques for insufficiency of funds, etc. shall be tried by a Judicial Magistrate and the provisions of Sections 262 to 265 Cr.P.C. prescribing procedure for summary trials, shall apply to such trials and it shall be lawful for a Magistrate to pass sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding Rs. 5,000/- and it is further provided that in the course of a summary trial, if it appears to the Magistrate that the nature of the case requires passing of the sentence of imprisonment exceeding one year, the Magistrate, after hearing the parties, record an order to that effect and thereafter recall any witness and proceed to hear or rehear the case in the manner provided in Criminal Procedure Code. 5. Learned counsel has further placed reliance upon the judgment of the Hon'ble Supreme Court in the matter State o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdinate delay in raising a challenge, no prejudice caused to the petitioner has been established and a mere apprehension has been made a foundation of filing the instant petition. 10. I have heard learned counsel for the parties and have gone to the pleadings as well as documents appended with the case and have also gone through the judgments relied upon by the learned counsel for the respective parties. 11. Before delving further into the case, the relevant statutory provisions viz. Section 143 of the Negotiable Instruments Act is reproduced herein below:- 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 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: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel appearing for the petitioner, it is submitted that the judgments in question would not be applicable to the submission sought to be advanced. The incorporation of Section 143 Negotiable Instruments Act was within an object of speedy disposal of cases resulting in recommendation of simplified procedure of trial of the offence under the Negotiable Instruments Act i.e. summary trial. The incorporation of Section 143 to 147 was aimed at early disposal of cases in simplified procedure and more particularly to do away the stages and process in a regular criminal trial that normally cause inordinate delay in its conclusion and to make a trial procedure as expeditious and possible without in any way compromising with the right of the accused for a fair trial. There is no straitjacket formula classifying a case to be tried as a summary trial or as a summons case in offences falling under the Negotiable Instruments Act. The law provided therefore is so flexible that it is up to the prudent judicial mind to try the case summarily or otherwise. It was held by the Hon'ble Supreme Court in the matter of J.V. Baharuni (supra) in Para 44 ,that no doubt the second proviso to Section 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be used sparingly when there is grave miscarriage of justice in the light of illegality, irregularity, incompetence or any other defect which cannot be cured at an appellate stage. The appellate Court should be very cautious and exercise the discretion judiciously while remanding the matter for de novo trial. 6. While examining the nature of the trial conducted by the Trial Court for the purpose of determining whether it was summary trial or summons trial, the primary and predominant test to be adopted by the appellate Court should be whether it was only the substance of the evidence that was recorded or whether the complete record of the deposition of the witness in their chief examination, cross examination and re- examination in verbatim was faithfully placed on record. The appellate Court has to go through each and every minute detail of the Trial Court record and then examine the same independently and thoroughly to reach at a just and reasonable conclusion. 15. Further, reliance on the judgment of Indian Bank Association (supra) is misplaced as the said judgment only contemplates that an order to try a case as summons case has to be passed after hearing the parties, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f any witness, who may have been examined. 17. Besides, the object behind incorporation of Section 143 to 147 of the Negotiable Instruments Act was to expedite the process of trial by ignoring the procedural technicalities. The interpretation sought to be assigned by the petitioner is likely to run contrary to the object behind the statutory provision. It is well settled proposition in law that a provision may be couched in mandatory terms but yet can be directory and used of word "shall", may not by itself, make the clause mandatory. It is evident that non-compliance to the second proviso to the extent of failure to grant hearing does not prescribe any consequence and it is for the said reason that the Hon'ble Supreme Court has held that a mere non- compliance of the directive would not vitiate the trial. 18. As has been pointed out by counsel for respondent, trial has advanced to an extent of being concluded inasmuch as, even the statement under Section 313 CrPC stands recorded. The delay on the part of the petitioner in approaching the Court has not been satisfactorily explained. Besides, apart from the apprehension that petitioner is likely to be sentenced for an imprison ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
