1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR. CRIMINAL APPLICATION NO. 2599/2007 Rajeev s/o Kamalkishor Biyani, a/a 52 yrs., Occ. Business, Proprietor of Utkarsh Pratishthan, Gorakshan Road, Akola, Tq. & Distt. Akola. APPLICANT VERSUS 1. Jaganmal s/o Pamandas Chandwani, a/a 66 yrs., occ. business, Proprietor of Deepa Dresses, Washim Motor Stand, Akola, Tq. &Distt. Akola. 2. State of Maharashtra through the Police Station Officer, Civil Lines, Akola, Tq. & Distt. Akola. RESPONDENTS .... Mr. C.A. Joshi, Advocate for the Applicant.. Mr. G.B. Lohiya, Advocate for respondent no.1. Mrs. S.S. Wandile, A.P.P. for respondent no.2. ...... CORAM : A.P. LAVANDE, J. DATE OF RESERVING THE JUDGMENT : 16/04/2008. DATE OF PRONOUNCING JUDGMENT : 06/05/2008 2 JUDGMENT : 1] Heard Mr. Joshi, learned counsel for the applicant, Mr. Lohiya, learned counsel for respondent no.1 and Mrs. Wandile, learned A. P.P. for respondent no.2. 2] Rule. By consent heard forthwith. 3] By this application under Section 482 of the Code of Criminal Procedure (“the Code” for short) the applicant takes exception to the judgment and order dated 13.6.2007 passed by Adhoc Additional Sessions Judge-II, Akola in Criminal Revision Application No.167/2006 and order dated 19/9/2006 passed by the Judicial Magistrate First Class, Akola in Summary Criminal Case No.8211/2004. The applicant is the complainant in the above case filed by him against respondent no.1. 4] By order dated 19.9.2006 the learned Magistrate issued process against the respondent no.1 for offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “the Act”) for dishonour of cheque dated 31/3/2004 for Rs. 7,46,482/- issued by him. 3 5] After process was issued, respondent no.1 filed an application dated 31.3.2005 taking objection to the trial of the case as summary case and for trying the case as a warrant case under Section 259 of the Code. The respondent no.1 contended that he was having various transactions with the complainant and that he had issued blank cheque as security and as such the amount was not due to the applicant. He further stated that the account books will have to be produced in the trial Court and, therefore, prayed that the case be tried as warrant case. Learned Magistrate by order dated 19.9.2006 held that having regard to the nature of the defence and the facts of the case, the case had to be tried as warrant case. 6] The applicant preferred revision application before the Adhoc Additional Sessions Judge, Akola. By judgment and order dated 13/6/2007 the Revisional Court held that the revision was not maintainable inasmuch as the order dated 19/9/2006 passed by the learned Magistrate was an interlocutory order. 7] Mr. Joshi, learned counsel for the applicant 4 submitted that the learned Magistrate erred in passing the impugned order and converting summary case into warrant case which is impermissible in law. He further submitted that learned Magistrate had no jurisdiction to convert summary case into warrant case. In support of his submissions, he relied upon the judgment of M.P. High Court in M/s. Steel Tubes of India Vs. M/s. Steel Authority of India (2006 (Cri. L.J. 1988). Mr. Joshi fairly conceded that the revision filed before the Revisional Court against the order passed by the Magistrate was not maintainable. He, therefore, submitted that the impugned order passed by the learned Magistrate be quashed. 8] Mrs. Wandile, learned A. P. P. adopted the submissions made by Mr. Joshi, learned counsel for the applicant. 9] Mr. Lohiya, learned counsel for the respondent no.1 submitted that the applicant has not made out any case for interference in exercise of jurisdiction under Section 482 of the Code inasmuch as there is no illegality or perversity in the impugned order. According to Mr. Lohiya, the reasons given by learned Magistrate for trying the case as warrant case are 5 absolutely justified. He further submitted that the judgment in the case of M.P. High Court in M/s. Steel Tubes of India (supra) has not considered second proviso to Section 143 of the Act and therefore, the said judgment does not lay down the correct law. 10] I have carefully considered the submissions made by learned counsel for the parties and perused records. In order to appreciate the rival submissions, it would be appropriate to quote Section 143 of the Act. It reads thus:- Section 143:-. Power of Court to try cases summarily:- (1) Notwithstanding any thing 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 Secs. 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 6 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 re-hear the case in the manner provided by the said Code. (2) The trial of a case under this section shall, so far as practicable, consistently with the interest of justice, be continued from day to day until its conclusion, unless the Court finds that 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.” 7 11. Sub Section (1) of Section 143 of the Act provides that 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 and 265 of the Code shall, as far as applies to such trials. Sections 262 to 265 of the Code are to be found in Chapter XXI of the Code which deals with summary trials. First proviso to Section 143 of the Act permits 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 second proviso to Section 143 of the Act gives discretion to the Magistrate to recall any witness who may have been examined and proceed to hear or re-hear the case in the manner provided by the said Code. Sub Section (2) of the Act provides that the trial of a case shall be held from day to day and consistently with the interest of justice. Sub section(3) provides that every trial shall be conducted as expeditiously as possible and an endeavour should be made to conclude the trial within six months from the date of filing of the complaint. 8 12] From a bare reading of Section 143 of the Act, it is evident that it is the intention of the legislature that ordinarily offences under Chapter of the Act should be tried in summary way and it is only in a case where sentence of more than one year may have to pass or for any other reason, it is undesirable to try the case summarily that the Magistrate can proceed to recall the witness already examined and further proceed to re-hear the case. 13] When a case alleging commission of an offence punishable under Section 138 of the Act is filed in view of Section 143 (1) of the Act, the Magistrate has to register it as a summary case. One of the grounds on which the Magistrate may decide not to try a case summarily is that the sentence of imprisonment for a term exceeding one year may have to be passed. Obviously, the Magistrate can hold so only after recording of some evidence led by the complainant. Even before the evidence is led by the complainant, it would be premature for the Magistrate to come to the conclusion that a sentence of imprisonment for a term exceeding one year will 9 have to be passed. 14] The other ground mentioned in second proviso of the Act is “for any other reason”. It is pertinent to note that second proviso to Section 143 of the Act permits the Magistrate not to try the case as summary case even at the commencement of the trial. The Magistrate in order not to try the case as summary case even at the commencement of the trial must have some good reason not to try the case as summary case. One of the reasons which can be visualised is that on the basis of the material produced by the complainant, the Magistrate forms an opinion that having regard to the nature of the material produced, which may include the replies given by the accused to statutory notice under Section 138 of the Act, it would not be desirable to try the case summarily. 15] In a case which is tried as summary case, the procedure prescribed for summons case, as far as possible, has to be followed in terms of Section 262 of the Code. The trial of summons case by the Magistrate is governed by Chapter XX of the Code. There is no provision in Chapter XX of the Code nor 10 any other provision in the Code which permits an accused in a summons case from putting his defence before the witnesses are examined on behalf of the complainant. No doubt, when substance of accusation is explained to the accused under Section 251 of the Code while not pleading guilty, it is open for him to state his defence. In the present case, the applicant- accused by filing application prayed that the cases be tried as warrant cases under Section 259 of the Code read with Section 143 of the Act. Firstly, Section 259 of the Code is clearly not attracted inasmuch as that the powers under Section 259 of the Code can be exercised in the course of the trial of summons case. In the present cases, the trial of the cases had not begun. Therefore, obviously the application filed by the applicant invoking Section 259 of the Code were clearly not maintainable. 16] Insofar as second proviso to Section 143 of the Act upon which heavy reliance has been placed by Mr. Lohiya, I am of the considered opinion that the same does not advance the case of the applicant. 17] As stated above, in the absence of any provision 11 under the Code the applicant could not have filed applications stating therein the grounds on which the cases should not be tried as summary cases. In a summons case after the accused is summoned, the case starts with the Magistrate explaining the substance of accusation to the accused under Section 251 of the Code. There is no provision under Chapter XX of the Code, which permits filing of an application stating the grounds on which the accused wants the case not to be tried as summons case. On this ground alone, the application filed by the applicant was liable to be rejected. 18] In M/s. Steel Tubes of India's case (supra) learned Single Judge of Madhya Pradesh High Court observed thus in para 8 of the judgment dealing with an identical situation:- “Section 143 gives power to the Court to try cases summarily. This section has a mandatory effect and the provisions start from non obstante clause. This means that provisions of Section 259 of the Code regarding warrant trial shall have no application in the case for trying the offence falling under the Act. This is further strengthened by the provisions of Sections 4 and 5 of the Code. 12 Section 4 of the Code says that when in the Statute there is specific provision for trying a particular offence of the said Statute then the provision of the Code shall not apply and the Special Provisions of the Statute or law that is provisions under Section 143 of the Act is saved by saving provision of Section 5 of the Code. Sub-section (3) of Section 143 of the Code has also saved for expeditious trial and endeavour shall be made to conclude trial within six months from the date of filing of complaint. There is no room of doubt that for the purposes of trial an offence falling under the Act, provisions of summary trial Sections 262 to 265 of the code would be applicable and the summary trial cannot be converted in the warrant trial. Therefore, arguments advanced by the learned counsel for application of summary trial or summons trial into warrant trial would have no application for the purpose of trying the cases falling under Section 138 of the Act”. I am in respectful agreement with the observations made by M.P. High Court in the above case. 19] One more aspect which requires to be taken note is that under Section 138 of the Act maximum punishment which 13 can be imposed is two years imprisonment in terms of Section 138 (as amended) with effect from 6.2.2003. Section 2 (x) of the Code defines “warrant case” a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. Section 2 (w) of the Code defines “summons case” means a case relating to an offence, and not being a warrant-case. Since maximum punishment prescribed under Section 138 of the Act is two years imprisonment, the question of the accused asking complaint alleging offence under Section 138 of the Act to be tried as warrant case does not arise in view of sub section (1) of Section 143 of the Act. Under second proviso of Section 143 of the Act if it appears to the Magistrate that it is undesirable to try the case summarily, the Magistrate after hearing the parties, has to pass an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or re-hear the case in the manner provided by the said Code. Thus, a plan reading of second proviso to Section 143 of the Act makes it clear that in case the Magistrate decides that it is undesirable to try the case summarily, he has to try the case in 14 the manner provided under the Code which means Magistrate has to follow procedure provided under Chapter XX of the Code which is applicable in the case triable as summons case by the Magistrate. In my considered opinion, a complaint filed alleging offence under Section 138 of the Act can never be tried as warrant case. The learned counsel for the applicant has not been able to point out any other provision in the Negotiable Instruments Act, 1881 which permits trial of an offence punishable under Section 138 of the Act as warrant case. 20] In view of the above, the impugned order passed by the learned Magistrate by which the learned Magistrate has held that the case will be tried as warrant case is not sustainable in law and, therefore, is quashed and set aside. Insofar as the finding given by the Revisional Court that the revision filed was not maintainable, I find that no fault can be found with the reasoning of the learned Additional Sessions Judge. 21] For the reasons aforesaid, the order dated 19.9.2006 passed by the learned Magistrate in Summary Case No. 15 8211/2004 is quashed and set aside and the learned Magistrate is directed to try the case by following the procedure laid down in Section 143 of the Act. Rule is made absolute in the aforesaid terms with costs of Rs. 1000/- (Rs. One thousand only) to be paid by respondent no.1 to the applicant. JUDGE