Judgment:
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.1534 of 2013 Alok Kumar Jain ..... Petitioner Versus 1. The State of Jharkhand 2. Ritu Somani @ Rituraj Somani …. Opposite Parties CORAM: HON’BLE MR. JUSTICE H.C. MISHRA For the Petitioner : Mr. Bal Krishna Mishra For the State : A. P.P. For the complainant - O.P. No.2 : Mrs. Vandana Singh ----- 7/07.09.2015 Heard learned counsel for the petitioner and learned counsel for the State as also learned counsel for the complainant O.P. No.2.
2. Petitioner is aggrieved by the order dated 18.5.2013 passed by learned Additional Sessions Judge-III, Bokaro, in Criminal Revision No. 36 of 2013, whereby the revision filed by the petitioner, against the order dated 2.2.2013 passed by Sri Arjun Saw, learned Judicial Magistrate, Bokaro, in C.P. Case No.215 of 2008, has been dismissed by the Revisional Court below.
3. It may be stated that by order dated 2.2.2013, the Trial Court below had ordered for de-novo trial as the learned Magistrate was the successor Magistrate, who was trying the case under Section 138 of the N.I. Act. The Trial Court below felt that since the process of the summary trial was to be followed in the matter, and evidences were recorded by the predecessor Magistrate, he directed for recalling the witnesses afresh.
4. Learned counsel for the petitioner has submitted that the impugned orders passed by both the Courts below are absolutely illegal. It is submitted by the learned counsel for the petitioner that the petitioner was facing trial for the offence under Section 138 of the Negotiable Instrument Act and all the witnesses were examined in the Court below. Thereafter, the Magistrate, trying the case, was transferred and the matter was pending for arguments before the successor Magistrate, who by order dated 2.2.2013 held that since it was summery trial, the witnesses have be examined afresh and ordered for recalling the witnesses, which order has been upheld even by the Revisional Court below. It has been submitted by the learned counsel for the petitioner that the law is now well settled by the Hon'ble Supreme Court of India in J.V. Baharuni and Another Vs. State of Gujarat and Another, reported in (2014) 10 SCC494 in which the Supreme Court has taken into consideration its previous decisions on the point, including the one in Nitinbhai Saevatilal Shah V. Manubhai Manjibhai Panchal, reported in (2011) 9 SCC638 and has laid down the law as follows:-
“56. Thus, we are of the considered opinion that the courts while dealing with the matters under the NI Act should keep in mind that the difference between summary and summons trial for the purpose of the NI Act is very -2- subtle but has grave repercussions in case of mistaken identification of trial which is de novo trial in the light of Section 326(3) of the Code.
57. 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 the extreme exigency to avert “a failure of justice”. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate court has got the plenary powers to revaluate and reappraise the evidence and to take additional evidence on record or to direct such additional evidence to be collected by the trial court. But to replay the whole laborious exercise after erasing the bulky records relating to the earlier proceedings by bringing down all the persons to the court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes imperative for the purpose of averting “failure of justice”. ------------------. **** **** **** 60. However, to summarise 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 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. 60.3. The learned Judicial Magistrate should make all possible attempts to encourage compounding of offence at an early stage of litigation. In a prosecution under the Negotiable Instruments Act, the compensatory aspect of remedy must be given priority over the punitive aspect. 60.4. All the subordinate courts should follow the directives of the Supreme Court issued in several cases scrupulously for effective conduct of trials and speedy disposal of cases.”
5. Learned counsel has also place reliance upon the decision of the Apex Court in Mehsana Nagrik Sahkari Bank Ltd. Vs. Sreejee Cab Co. and Others, reported in (2014) 13 SCC619 wherein where, the evidence was recorded by the predecessor Magistrate in accordance with the procedure followed in summons trial, the Apex Court directed the successor Magistrate to continue with the trial, setting aside the order of the High Court directing for de novo Trial. -3- Learned counsel placing reliance on these decisions, submitted that the impugned orders passed by the Courts below cannot be sustained in the eyes of law, in as much as, all the witnesses have already been examined in the trial and the case was fixed for arguments.
6. Learned counsel for the State as also learned counsel for the complainant-opposite party No.2 have opposed the prayer submitting that there can be no interference in the impugned orders dated 2.2.2013 passed by the learned Magistrate, as also the order dated 18.5.2013 passed by the Revisional Court below, as both the courts had only followed the law settled by the Supreme Court of India in Nitinbhai Saevatilal Shah's case (supra).
7. It is apparent from the record that the witnesses had already been examined by the Court below and the successor Magistrate found that since he had to follow the procedure of the summary trial, he could not rely upon the evidence recorded by the predecessor Magistrate and directed for recalling of the witnesses to follow the summery trial. I do not find any illegality in the impugned order passed by the Courts below since they had followed the settled principle of law at that time. However, the fact remains that the Apex Court has now reconsidered all the previous decisions in J.V. Baharuni's case (supra), including the one in Nitinbhai Saevatilal Shah's case (supra), and had laid down the procedure to be followed by the Trial Courts. The law laid down in para 60.2 of the said decision clearly shows that the Magistrate has the discretion under Section 143 of the N.I. Act either to follow the summery trial or summons trial. In case the Magistrate wants to conduct summons trial, he should record the reasons after hearing the witnesses 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.
8. In the present case, the learned Magistrate had recalled the witnesses for proceeding in the trial as the summary trial. If on the basis of the record, the Court below finds, for the reasons to be recorded, that it can proceed with the matter on the basis of the evidence recorded by the predecessor Magistrate, the Court shall follow the process of summons trial, but if it finds from the record that the said procedure cannot be followed and the process of summery trial has to be followed, the Court below shall be free to follow of the process of summery trial. With these directions, this application is disposed of. (H. C. Mishra, J) R.Kumar