Judgment:
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:
04. 11.2013 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL Crl.R.C.(MD)No.509 of 2013 K.Ramalakshmi ... Petitioner Vs. Swarnalatha ... Respondent PRAYER Criminal Revision Case is filed under Section 397 r/w 401 of the Code of Criminal Procedure, praying to call for the records and set aside the order passed in C.C.No.9 of 2013, dated 10.01.2013 on the file of the Judicial Magistrate Court No.1, Tirunelveli by allowing the criminal revision petition. !For Petitioner ... Mr.H.Arumugam ^For Respondent ... Served (Yet No Appearance) :JUDGMENT
The petitioner has preferred the instant Criminal Revision Case as against the order dated 10.01.2013 in C.C.No.9 of 2013 passed by the Learned Judicial Magistrate No.1, Tirunelveli. The Learned Judicial Magistrate No.1, Tirunelveli on 10.01.2013 in C.C.NO.9 of 2013 has passed the following order:- ".Complainant present. Accused absent. Petition u/s.317 Crpc. allowed. Accused side counsel present. On perusal of records that is found that this case is taken on file on S.T.C. This Court find that from the interest of justice, and fair trial, detailed records of evidence is necessary. Hence this case is hereby intend to try this case on summons procedure accordingly. This case is hereby converted from S.T.C. Into C.C. Assigned new number. Proof affidavit filed by complaint as P.W.1 and Exs.P1 to P5 marked. At request cross of PW.1 call on 11.2.2013.".
2. Being dissatisfied with the impugned order dated 10.01.2013 in C.C.No.9 of 2013 passed by the Learned Judicial Magistrate No.1, Tirunelveli in regard to the conversion of the case from Summary Trial Case into Calendar Case, the Petitioner / Accused has focussed the instant Criminal Revision Case before this Court, contending that the order of the trial Court in converting the Summary Trial Case in STC No.1154 of 2010 as Calendar Case in C.C.No.9 of 2013 is against the provisions of the Negotiable Instruments Act, 1881.
3. According to the Learned counsel for the Petitioner / Accused, the trial Court has failed to appreciate that the complaint filed by the respondent / complainant under Section 138 of the Negotiable Instruments Act, 1881 has to be tried only as Summary Trial Case in accordance with Section 143(1) of the Act. 4.The Learned counsel for the petitioner strenuously submits that the trial of the case could be proceeded under Sections 262 to 265 of Cr.PC. Further, only when it appears to the Learned Magistrate that the nature of the case is that the sentence of the imprisonment for a term exceeding one year may have to be passed or for any other reason, it is undesirable to try the case summarily, it is open to the Learned Magistrate after hearing the parties, to record and order to that effect and thereafter to proceed with the case in the manner enshrined under the Criminal Procedure Code. 5.The ground of attack made by the Learned counsel for the petitioner is that the Learned Judicial Magistrate No.1, Tirunelveli had not formed any opinion so as to try the case as Calendar Case in terms of Criminal Procedure Code, instead of deciding it as Summary Trial. The Learned counsel for the petitioner projects an argument that the trial Court has not heard the parties and recorded an order to the effect that the complaint is required to be tried as Calendar Case and in this Regard there is a violation of the ingredients of Section 143(1) of the Negotiable Instruments Act.
6. The last leg of the argument of the Learned counsel for the petitioner is that the Learned Magistrate failed to appreciate that the Petitioner / Accused is greatly prejudiced by the conversion of Summary Trial into the Calendar Case, as the punishment for Summary trial could not exceed a year. Whereas, if the same is tried as Calendar Case, the punishment could be imposed more than one year.
7. The Learned counsel for the Petitioner / Accused makes a useful reference to the ingredients of Section 143 of the Negotiable Instruments Act, 1881, which runs as follows:- ".143. Power of the 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. 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 an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in 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 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.
8. In support of the contention that the case relating to an offence under Section 138 of Negotiable Instruments Act is to be tried summarily by the Learned Judicial Magistrate. The Learned counsel for the Petitioner / Accused relied on a decision of this Court reported in 2005 (1) MWN (Cr) DCC26( G.Chandrasekaran Vs. C.R.Umapathy) wherein it is observed and held as follows:- 15. It is brought to the notice of this Court that the learned Judicial Magistrates in some districts take the complaints filed under Section 138 of Negotiable Instruments Act as Calendar Cases while some others take them on file as Summary Trial Cases. In this context, Negotiable Instruments Amendment Act, 2002 has to be taken note of and followed in letter and spirit. Section 143 which has been inserted by the Amendment Act of 2002, stipulates that notwithstanding anything contained in the Code of Criminal Procedure, all offences contained under Chapter XVII of Negotiable Instruments Act dealing with dishonour of cheques for insufficiency etc. of funds in the accounts, 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 a Magistrate that the nature of the case requires passing of a 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.
9. He also cites a decision of this Court reported in 2012 SGTPL541(Swaminatha Pillai Vs. A.Senthil Kumar) wherein in paragraphs 5 and 6 it is observed and laid down as follows:- ".5.On a plain reading, it may be seen that the Magistrate is required to follow the summary trial procedure envisaged under Sections 262 to 265 Cr.P.C. When such procedure has been followed, the Magistrate may impose a sentence of imprisonment only for a period upto one year and the fine, if any imposed by the Magistrate, shall not exceed Rs.5,000/-. Section 138 of the Negotiable Instruments Act provides for punishment of imprisonment upto a period of two years and for an imposition of fine which may extend to twice the amount of the cheque. The sentence may either be of imprisonment or of fine or of both. The restrictions placed on the sentence that may be imposed under the first proviso to Section 143 of the Negotiable Instruments Act is lifted by the further proviso which informs that where it appears to the Magistrate that the case is one in which a sentence of imprisonment of term exceeding one year is to be passed, or it otherwise appears for any other reason that it would be undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter follow the procedure informed in the said proviso. From the wording of Section 143 of the Negotiable Instruments Act and the two provisos thereto, it may be seen that the decision to avoid the summary trial procedure and follow that contemplated for summons cases is to be a conscious one. Such conscious decision may be arrived at either at the commencement of or in the course of a summary trial. Thus the decision to opt for the procedure prescribed for a summons case must follow the commencement of the case by adopting the summary trial procedure. In the decision reported in 2005(1) T.N.L.R.6(Mad), Madras High Court in G.Chandraskaran Vs. C.R.Umapathy, this Court has observed as follows: ".15. It is brought to the notice of this Court that the learned Judicial Magistrate in some districts take the complaints filed under Section 138 of Negotiable Instruments Act as Calendar Cases while some others take them on file as Summary Trial Cases. In this context, Negotiable Instruments Amendment Act 2002 has to be taken note of and followed in letter and spirit. Section 143 which has been inserted by the Amendment Act of 2002 stipulates that notwithstanding anything contained in the Code of Criminal procedure, all offences contained under Chapter XVII of Negotiable Instruments Act dealing with dishonour of cheques for insufficiency etc. of funds in the accounts, 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 (not) exceeding Rs.5,000/- and it is further provided that in the course of a summary trial, if it appears to a Magistrate that the nature of the case requires passing of a sentence of imprisonment, exceeding one year, the Magistrate (may), 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.".
16. Even though the case relating to an offence under Section 138 of Negotiable Instruments Act is a summons case, it has to be tried summarily and Sections 262 to 265, Cr.P.C. shall apply. In the course of summary trial, if the nature of the case is such that a sentence of imprisonment exceeding one year may have to be passed or for any other reason, it is undesirable to try the cases summarily, then it is always open to the Magistrate to hear the parties and record an order to that effect and thereafter recall any witness and proceed to hear or rehear the case as per the procedure in trial of summons cases.".
6. This Court holds that it is incumbent on all Magistrates to commence proceedings in respect of offences under Section 138 of Negotiable Instruments Act by adopting summary trial procedure contemplated under Section 262 of Criminal Procedure Code. Once so having commenced, the Magistrate may either on his own motion or on that of the parties, hear the parties and pass a reasoned order on which of the two courses viz., that of summary under Chapter XXI CrPC or of that prescribed for summons cases under Chapter XX CrPC is to be adopted. What is sought to be emphasized by this Court is that the adoption of the procedure contemplated for a summons case should be the result of a conscious decision of the Court and not mere happen chance.".
10. It is to be pointed out that Sections 262 to 265 of Cr.P.C., prescribe the procedure which ought to be followed by the Court in a Summary Trial Case. Just because a certain short-cut procedure is enjoined under Sections 262 to 265 of Cr.PC., it cannot be construed that the nature of the offence changes, be it a Summons Case or a Warrant Case. As a matter of fact, the procedure enunciated for the trial of the cases is nothing to do with the nature of the case, whether summons or warrant case as per the decision Gadag Co-operative Textile Mills Ltd., Vs. State of Karnataka, 1988(2) Crimes 972, 975 (Kant). Sub Section 262(1) of Cr.PC., prescribe that in all Summary Trials, the summons case procedure ought to be followed irrespective of nature of the case i.e., whether it is a summons case or a warrant case. The trial of particular offences in summary fashion is only an enabling provision. It is open to the Judicial Magistrate to try a case triable in summary as a warrant case, as per the decision of Rashpal Singh Vs. State of Hariyana (2003) CrLJ3407(3410) (P&H).
11. It is to be pointed out that as per Section 143 of the Negotiable Instruments Act, 2002 ( with effect from 06.02.2003) the Judicial Magistrate First Class may pass sentence of fine exceeding Rs.5000/-. The limitation prescribed in Section 29(2) of Cr.PC., has been obviated as per the decision of Shaila P.Prabhu v. Nagendra K.Mallya reported in (1 (2007 B.C.377 (Karnt.). Further, Section 143 of the Negotiable Instruments Act, 1881 provides for Summary Trial of Cases under the Negotiable Instruments Act with a view to speed up disposal of cases. 12.it is to be borne in mind that in Wharton's Law Lexicon 14th Edition 1993, at Page 963 the term 'Summary' is defined as 'an abridgment or brief compendium'. 13 In Black's Law Dictionary, 7th Edition, the term, 'Summary' is defined as an abridgment or a brief; a short application to a Court without the formality of a full proceeding.
14. As far as the Negotiable Instruments Act, 1881 is concerned, Section 143 of the said Act confers power on the Judicial Magistrates to try the cases summarily. Indeed Section 143(1) provided that ".in the case of any conviction in a summary trial under the 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 Rs.5000/-".. Also that Section 143(1) interalia contemplates that if it appears to the Magistrates that the case is one in which a sentence of imprisonment exceeding one year is to be awarded or it otherwise appears for any other reason that it would be undesirable to try the case summarily, he shall after hearing the party record an order to that effect and subsequently to follow the procedures adumbrated in the said proviso. At this juncture, this Court on a mere running of the eye over the ingredients of Section 143 of the Negotiable Instruments Act points out that all the Judicial Magistrates are to start their proceedings in regard to the offence under Section 138 of Negotiable Instruments Act by resorting to the summary trial procedure envisaged under Section 262 of Cr.PC. After so starting the said procedure, the Learned Judicial Magistrate either on his own volition or at the instance of parties hear them, of course after providing fair opportunity to them parties and record a speaking, reasoned order as to whether to adopt the summary procedure enshrined under Chapter XX1 of Cr.PC, or of that one specified for summons cases under Chapter XX of Cr.PC. What type of procedure is to be adopted for summons case is within the subjective self satisfactory domain of the Magistrate and in this regard he is to exercise his sound judicial thinking discretion in the considered opinion of this Court.
15. It cannot be gainsaid that resorting to a summons case procedure will provide an adequate / enough opportunity to an Accused to project his version of the case and this can avoid unnecessary embarrassment also. That apart, as far as the present case is concerned, on going through the impugned order dated 10.01.2013 in C.C.No.9 of 2013 passed by the Learned Judicial Magistrate No.1, Tiruneveli, it is latently and patently evident that the petitioner / Accused was absent on the said day and on his behalf Section 317 Cr.PC., petition was filed and the same was allowed. Unfortunately, the Learned Judicial Magistrate No.1, Tirunelveli was not in a position to hear the revision Petitioner / Accused, although on his side, the Learned counsel was present. Obviously, the Learned Judicial Magistrate No.1, Tiruenveli, on perusal of records found that the case was taken on file on STC and opined that in the interest of justice and fair trial and detailed record of evidence was necessary and accordingly intended to try the case and ultimately converted the case from STC into CC and assigned new number. It comes to be known that proof affidavit was filed on behalf of the complainant as P.W.1 and Exs.P1 to P5 were marked. At the request of P.W.1, the matter was directed to be called on 11.02.2013. Only under the said circumstance, the Petitioner / Accused has approached this Court by filing the present Revision.
16. At this stage, this Court worth to recall and recollect the decision ofthis Court reported in 2005 (1) MWN (Cr) DCC26( G.Chandrasekaran Vs. C.R.Umapathy) wherein in paragraph 16, it is laid down as follows:- ".16. Even though the case relating to an offence under Section 138 of Negotiable Instruments Act is a summons-case, it has to be tried summarily and Sections 262 to 265 Cr.P.C shall apply. In the course of summary trial, if the nature of the case is such that a sentence of imprisonment exceeding one year may have to be passed or for any other reason, it is undesirable to try the case summarily, then it is always open to the Magistrate to hear the parties and record an order to that effect and thereafter recall any witness and proceed to hear or rehear the case as per the procedure in trial of summons cases.".
17. In the light of the aforesaid detailed discussions and in view of the fact that the Judicial Magistrate is required to follow the summary procedure in terms of Section 143 of the Negotiable Instruments Act, while trying an offence under Section 138 of Negotiable Instruments Act by applying the ingredients of Sections 262 to 265 of Cr.PC., and further in the course of trial if the nature of the case is one where sentence of imprisonment exceeding a year may have to be awarded or for any other reason it is untenable to try the case summary, then option is always available to the Judicial Magistrates to hear the parties and pass an order to that effect and later to recall any witnesses and to proceed either to hear or rehear the case, as per the procedure envisaged in Trial of Summary Cases viewed in that perspective. In the instant case on hand, the learned Judicial Magistrate No.1, Tirunelveli, while passing the impugned order on 10.01.2013 in C.C.No.9 of 2013 has not heard the parties (it is to be remembered that on behalf of the Petitioner / Accused Section 317 petition was filed and allowed and only Accused counsel was present) and as such it is pellucidly clear that the Learned Judicial Magistrate No.1, Tirunelveli while converting the case from STC into CC had not borne in mind the fact that the case relating to an offence under Section 138 of the Negotiable Instruments Act is to be tried as a summons case (under Section 143 of the Negotiable Instruments Act) and this has ultimately lead to miscarriage of justice. Further inasmuch as the impugned order, dated 10.01.2013, passed by the Learned Judicial Magistrate No.1, Tirunelveli while converting the case in Summary Trial Case in STC No.1154 of 2010 as Calendar Case in C.C.No.9 of 2013 is not in tune with the ingredients of the Negotiable Instruments Act (pertaining to the trial of offence under Section 138 of the Negotiable Instruments Act), as such, the said order suffers from impropriety and patent illegality in the eye of law and this Court necessarily interferes with the said order and sets aside the same in the interest of justice. Consequently, the Revision Petition succeed.
18. In the result, the Revision Petition is allowed and the order passed by the Learned Judicial Magistrate in C.C.No.9 of 2013 dated 10.01.2013 in ordering the STC Case No.1154/2010 into that of Calendar Case in C.C.No.9 of 2013 on his file is hereby set aside. Further, the Learned Judicial Magistrate is directed to proceed further in the matter in issue by adhering to the relevant provisions of the Negotiable Instruments Act in a fair, just and dispassionate manner and in accordance with law uninfluenced with any of the observation made by this Court in this Revision and to dispose of the main Case within a period of four months from the date of receipt of a copy of this order. MPK To 1. The Judicial Magistrate No.1, Tirunelveli. 2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.