1. Both the revisions are filed against the judgment and order of Criminal Appeal No.24/2011, which was pending in the Court of Sessions Judge, Parbhani. The petitioner from Criminal Revision Application No.244/2013 was accused in SCC No.772/2007, which was pending in the Court of Judicial Magistrate, First Class (hereinafter referred to as 'J.M.F.C.') and the case was filed for offence punishable under section 138 of Negotiable Instruments Act (hereinafter referred to as 'the Act') by the petitioner from Criminal Revision Application No.56/2014. The accused is convicted and sentenced by the learned J.M.F.C. and he is sentenced to suffer imprisonment for the period of two months. He was also directed to pay compensation of Rs.3,00,000/- (Rupees three lakh) and fine of Rs.2,000 (Rupees two thousand). This decision is modified by the learned Sessions Judge and the substantive sentence is reduced to the term, till the rising of the Court and compensation is increased to make it Rs.3,50,000/- (Rupees three lakh fifty thousand). The fine order is also set aside. This was done in view of the submission made by the learned counsel for the complainant in that regard. In the present proceeding both the sides are heard. This Court has perused the original papers.
2. The decision is challenged mainly on the ground that the trial was not conducted denovo, when the evidence was recorded by the predecessor of the J.M.F.C. who decided the case. It was submitted that the case was tried as summons case, but in summary manner and so, the J.M.F.C., who decided the case, could not have decided the matter on the basis of evidence recorded by his predecessor. It was submitted that in view of the provision of section 143 of the Act, it needs to be presumed that the case was tried in summary manner. With this submissions, it was further submitted that the conviction cannot sustain in law and the trial is vitiated. Though other contentions are made in the petition, only the aforesaid point was argued in the present proceeding.
3. On the other hand, the learned counsel for the original complainant submitted that the learned Sessions Judge has committed mistake in not giving sentence in default of making payment of compensation amount and due to that, the claimant is facing problems in enforcing the order. It was also submitted that nothing is said about the compensation amount of Rs.50,000/- which remains after making of the payment of Rs.3,00,000/- to the complainant and in view of the provisions, he is entitled to get all the amount of compensation which the accused needs to deposit as per the order made by the learned Sessions Case.
4. In view of the nature of aforesaid challenge to the decision of the Trial Court and the learned Sessions Judge, the relevant provisions of Criminal Procedure Code (hereinafter referred to as 'the Code') and the Act need to be seen first.
5. The relevant portion of the provision of section 143(1) of the Act runs as under :-
"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:"
The aforesaid provision has three parts as under:-
(i) Notwithstanding anything contained in the Code as amended in 1974, the provisions of the Special Act will apply.
(ii) All the offences under this Chapter (Chapter XVII) of the Act shall be tried by J.M.F.C. or by Metropolitan Magistrate (hereinafter referred to as 'M.M.') and
(iii) The provisions of sections 262 to 265 of the Code (both inclusive) shall as far as may be apply to such trials.
The bare reading of this provision shows that some change is made in the procedure laid down in the Court by the special provisions of the Act. To ascertain what is the exact change, the provisions of sections 262, 265 of the Code need to be seen. Only after the comparison of these provisions, the object behind the provisions of the Act can be ascertained. Similarly, the other relevant provisions of the Code with regard to the class to which such cases belong need to be seen.
6. In section 2(w) of the Code, the definition of 'summons case' is given and in section 2(x) of the Code, the definition of 'warrant case' is given. They run as under :-
"(w) "summons-case" means a case relating to an offence, and not being a warrant-case;
(x) "warrant-case" means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years;"
Thus, when the substantive sentence that can be imposed for offence exceeds two years, the case falls under the category of 'warrant case' and if the sentence is up to two years of imprisonment, the case falls under the category of 'summons case'.
7. Section 4 of the Code provides that all the offences punishable under Indian Penal Code (hereinafter referred to as the 'I.P.C.') and also under other laws are to be tried as per the procedure laid down in the Code. However, it also makes it clear that when Special Act like the present one has made some special provisions which are inconsistent with the general provisions of the Code, the special provisions regarding the procedure need to be followed.
8. The classification of cases as 'summons case' and 'warrant case' can be made applicable to both the cases filed for offences committed under the I.P.C. and also for the offences punishable under Special Act. In Schedule I, provided to the Code, the Courts are mentioned for the trial of offences punishable under the provisions of I.P.C. and also under the other Act. Part II of the Schedule I is as under :-
II-CLASSIFICATION OF OFFENCES AGAINST OTHER LAWS
| Offence | Cognizable or Non- cognizable | Â Bailable or Non-bailable | By what Court triable |
| If punishable with death, imprisonment for life, or imprisonment for more than 7 years. | Cognizable | Non-bailable | Court of Session |
| If punishable with imprisonment for 3 years and upwards but not more than 7 years | Ditto | Ditto | Magistrate of the first Class |
| If punishable with imprisonment for less than 3 years or with fine | Non-cognizable | Bailable | Any Magistrate |
9. In view of the relevant provisions of the Code already quoted, the case filed for offence punishable under section 138 of the Act needs to be treated as 'summons case'. The third part of section 143(1) of the Code shows that the provisions of sections 262 to 265 of the Code need to be applied to such trials. To ascertain the object behind the making of such specific mention, the other provisions of the Code also need to be seen.
10. In section 260 of the Code, the criminal Courts which can try a summons case in summary manner are mentioned. The classes of the cases which can be tried in summary manner are also mentioned. The relevant portion of section 260 of the Code is as under :-
"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 specifically 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;
(ii) .........."
The aforesaid provision show that any C.J.M. and M.M. can try these categories of cases in summary manner. The J.M.F.C. can try such cases in summary manner only if the J.M.F.C. is especially empowered in this behalf by the High Court.
11. In view of the aforesaid provisions of Code and the Act, it needs to be presumed that the case filed under section 138 of the Act can be tried by any J.M.F.C. and for that, investing power by the High Court is not necessary. Further, the special provisions also make it clear that the cases can be tried only by J.M.F.C. and not by the Judicial Magistrate, Second Class. The provision of section 261 of Code provides that High Court can invest the power to try less grievous cases, cases punishable with imprisonment not exceeding six months by Magistrate of second class. This provision cannot be used for the trial of a case filed under section 138 of the Act.
12. In the third part of provision of section 143(1) of the Act, there is mention of applicability of the provisions of sections 262 to 265 of the Code and they need to be applied as far as possible. Section 262 of the Code runs as under :-
"262. Procedure for summary trials.- (1) In trials under this Chapter, the procedure specified in this Code for the trial of summons-case shall be followed except as hereinafter mentioned.
(2) No sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this Chapter. "
Thus, the procedure laid down in the Code for trial of summons case in Chapter XXI of Code needs to be followed except that the sentence exceeding three months imprisonment cannot be given when the case is tried in summary way by J.M.F.C. under Chapter created for summary trial i.e. Chapter XXI. In this regard, the first proviso of section 143 (1) of the Act needs to be seen and it runs as under :-
"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:"
The comparison of section 262 of the Code and the proviso to section 143 (1) of the Act shows that section 143 of the Act gives more power, for imposing imprisonment for more period when the case filed under section 138 of the Act is tried in summary way.
13. The provision of section 263 of the Code shows that the particulars mentioned in section 263 of the Code need to be mentioned in a form which may be prescribed for that purpose by the State Government when the case is tried in summary manner. There is no need to discuss this provision as for both the Code and the Act, this form will be required to be maintained.
14. The provision of section 264 of the Code runs as under:-
"264. Judgment in cases tried summarily.- In every case tried summarily in which the accused does not plead guilty, the Magistrate shall record the substance of the evidence and a judgment containing a brief statement of the reasons for the finding. "
This provision shows that when the accused does not plead guilty, substance of evidence needs to be recorded and not the entire evidence of the witnesses examined in the case. Further, the judgment delivered in such a case is expected to contain only brief statement of the reasons and findings.
15. In the case reported as AIR 1960 Bombay 107 [Krishna Nayar Ram Nayar Vs. State], this Court has laid down that 'substance of evidence' means 'important or substantial parts of depositions'. Such parts of depositions need to be recorded separately for every witness and at the time when evidence is given. When such record is created, the appellate Court can be in a position to ascertain as to what the witness has stated in deposition. The other provision of section 264 with regard to language etc. is not relevant for the present purpose.
16. Section 260(2) of the Code runs as under :-
"(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."
Proviso No.2 to section 143(1) of the Act runs as under :-
"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 the manner provided by the said Code."
17. If the provisions of section 260 of the Code is compared with the second proviso of section 143(1) of the Act, it can be said that under section 260 of the Code, the Magistrate is expected to first ascertain that a particular summons case can be tried in summary manner and then he may go for summary trial of that case. The law does not require the Magistrate to pass any order in that regard and from the record, it can be ascertained as to whether the case was tried in summary manner. However, under section 143 of the Act, the J.M.F.C. is ordinarily expected to try the case filed under section 138 of the Act in summary manner. At any time, after beginning of the trial, if the J.M.F.C. forms an opinion that for imposing more sentence (exeeding the period of one year imprisonment) or any other reason, it is undesirable to try the case summarily, the J.M.F.C. is expected to give hearing to the parties and the J.M.F.C. is expected to record the order to that effect. From the wording of the section, it can be said that such order can be made at any stage after commencement of the trial, but it needs to be presumed that the Magistrate is expected to try the case filed under section 138 of the Act, ordinarily in summary manner. Thus, the number of cases which can be tried otherwise than in summary manner will be comparatively low. It can be further said that there is discretion under section 260 of the Code with J.M.F.C. (who is invested with the power) to try any case falling in the categories mentioned in section 260 in summary manner, though the discretion needs to be used judiciously and the J.M.F.C. has discretion to try the cases filed under section 138 of the Act as regular summons case and not in summary manner, but for that the J.M.F.C. is expected to pass an order.
18. The provisions of section 143(2) and (3) of the Act run as under:-
"(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 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."
The provisions of section 143 of the Act came in force with effect from 6.2.2003. The object of this provision was the speedy disposal of the case. In view of the aforesaid provisions, it needs to be ascertained in the present case as to whether the case was tried in summary manner or as a regular summons case. The law developed in this regard also needs to be seen.
19. The main contention of the learned counsel for the accused is that the evidence recorded by the predecessor of J.M.F.C., who delivered the judgment, was used for the decision of the case and in view of the aforesaid provisions, such evidence cannot be used and there is the bar of section 326(3) of the Code for using such evidence. Both the sides have placed reliance on some reported cases.
20. In the case reported as (2011) 9 Supreme Court Cases 638 [Nitinbhai Saevatilal Shah and Anr. Vs. Manubhai Manjibhai Panchal and Anr.], the Apex Court held that the predecessor of the Magistrate had recorded the evidence in summary trial and so, his successor could not have acted on that evidence in view of the provisions of section 326(3) of the Code. It is further observed by the Apex Court that in the case involved, only substance of evidence was recorded and due to that the Magistrate who delivered the judgment was not in a position to appreciate the evidence properly. After making these observations, the Apex Court set aside the judgment and order of conviction given under section 138 of the Act. The case was remanded back by the Apex Court for fresh trial. This case was of 1998.
21. The cardinal principle of law in criminal trial is that it is a right of the accused person that his case should be decided by a Judge who has recorded the whole of the evidence (referred AIR 1962 Supreme Court 690 [Payare Lal Vs. Vs. State of Punjab]). This case is referred by the Apex Court also in the case of Nitinbhai cited supra. It is laid down that the provisions of section 326(1) and (2) of the Code give scope to use the evidence recorded by the previous Presiding Officer, but that exception is not available to the evidence recorded in the summary trial. In the case of Nitinbhai, it is further held by the Apex Court that if such evidence is used by the successor, the trial is hit by section 461(1) of the Code and the decision cannot sustain in law. It is observed that the procedure cannot be validated by the provisions of section 465 of the Code. There cannot be dispute over this proposition.
22. In the case reported as 2013 SCC Online SC 611 [Mehsana Nagrik Sahakari Bank Ltd. Vs. Shrijee Cab Co. and Ors. etc.] the Apex Court has referred the aforesaid case of Nitinbhai. On facts, in the subsequently decided case, the Apex Court found that the substance of the evidence was not recorded, but entire evidence was recorded and so, there was no question of retrial (denovo trial) by other Magistrate. The facts show that the case was still pending on the date of decision of the case of Mehasana Bank i.e. on 12.7.2013 by Apex Court. By holding that denovo trial was not necessary, the Apex Court made observations at paragraph No.5 as follows:-
"5. We have perused the notes of evidence which are produced on record. They clearly show that the evidence in this case was recorded in full and not in a summary manner. That being so, we cannot but accept the submission of Mr. Ahmadi."
23. In the case reported as AIR 2010 SC 1402 [Mandvi Co-op. Bank Ltd. Vs. Nimesh B. Thakore], the Apex Court has laid down that the provisions of sections 143 to 147 of the Act do not take away any substantive rights of the accused. It is observed that those provisions are procedural in nature and would apply to cases pending on the date, the provisions came in to force. The case of Mahesana Bank was in respect of complaint which was pending on 12.7.2013, the date of decision of Mahasana Bank's case. Thus, this Court cannot ignore the observations made by the Apex Court in Mahesana Bank's case. In view of the observations, it is the duty of this Court to ascertain as to whether the case was tried in summary manner and that can be done on the basis of manner of recording evidence. In the case in hand, the evidence was recorded as if it was recorded in regular summons case and not for the purpose of summary trial. In view of observations made by Apex Court, it needs to be presumed that absence of specific order from J.M.F.C. to try the case as Regular Summons case cannot vitiate the trial.
24. The learned counsel for the complainant placed reliance on some reported cases. In the case reported as 2006 (2) Bom.C.R. (Cri.) 590 [Shivaji Sampat Jagtap Vs. Rajan Hiralal Arora], this Court had held that there was no necessity of denovo trial as the evidence was recorded for the purpose of regular summons case and not in summary trial. The case was decided by the Magistrate on 6.12.2004. In the case reported as 2007 (Supp.) Bom.C.R. 564 [Ramilaben Trikamlal Shah Vs. Tube and Allied Products], this Court had made similar observations in the case decided in the year 2005.
25. From the discussion made above and the provisions of sections 461 and 465 of Code, it needs to be observed that once the procedure as laid down for trial of regular summons case is followed, the entire evidence is recorded by one Magistrate and not substance of the evidence is there, this evidence can be used by his successor and on this evidence, the case can be decided. For that, the provisions of section 326(1) and (2) of the Code can be used. In such a case, the accused, convict cannot say that the prejudice has been caused to him. There can be case of prejudice only if the case was tried in summary manner, substance of evidence was recorded by the predecessor of the Magistrate. This Court has no hesitation to observe that in the present case also, the judgment and order of conviction cannot be set aside on this ground. This ground was raised by the accused first time in the revision filed in Sessions Court.
26. The submissions made and the record of the revision filed in Sessions Court show that it was submitted for the accused that lenient view can be taken and instead of sending the accused behind bars, he can be directed to pay more amount of compensation. In view of this submission, the Sessions Court reduced the substantive sentence to make it till the rising of the Court, from the period of two months simple imprisonment given by the trial Court. The appellate Court also set aside the order of fine amount and a direction is given to deposit the compensation amount of Rs.3.5 lakh. Surprisingly, no sentence in default for making the payment of compensation is given.
27. In the present proceeding due to aforesaid circumstances, the accused did not feel it necessary to get the order of suspension of sentence or stay to the order of compensation. Till today the accused has not deposited any amount. From the facts and circumstances of this case, it can be said that tendency has increased to play such tactics. In trial Court some orders are sought by making such submissions and by giving undertaking and then the orders obtained by making such submissions are challenged in appellate Court. Such tactics cannot be allowed to be played. No other ground was argued to challenge the decision of the learned J.M.F.C. and the appellate Court.
28. The learned counsel for original complainant submitted in Criminal Revision Application No.54/2014 that in ordinary course, sentence of imprisonment in default needs to be given. He placed reliance on the case reported as AIR 2009 SC (Supp) 1435 [Vijayan Vs. Sadanandan K. and Anr.]. This Court has gone through the observations made by the Apex Court in the reported case. The provisions of sections 421, 424, 431 and 357 of Code need to be kept in mind in this regard. In view of the facts of the case and the position of law, this Court holds that the appellate Court has committed error in not giving sentence in default for making the payment of compensation. In view of the provision of section 65 of the I.P.C., the sentence of simple imprisonment of six months can be given in default of making the payment of the compensation and in view of the facts of the case, the sentence of six months simple imprisonment needs to be given.
29. In view of the discussion made above Criminal Revision Application No.244/2013 stands dismissed.
30. Criminal Revision Application No.56/2014 is allowed. The judgment and order of Sessions Judge, Parbhani delivered in Criminal Appeal No.24/2011 is modified. The sentence of simple imprisonment of six months is given to the accused in default of making payment of compensation of Rs.3,50,000/- (Rupees three lakh fifty thousand). If the amount is deposited, the entire amount is to be given to the complainant. As the amount is not deposited, conviction warrant is to be sent against the accused accordingly.