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The Indian Penal Code
Section 143 in The Code Of Criminal Procedure, 1973
Section 143 in The Indian Penal Code
Section 138 in The Indian Penal Code
The Negotiable Instruments Act, 1881

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Rajasthan High Court
Tripati Vyas vs State Of Rajasthan And Anr on 12 March, 2013
    

 
 
 

 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN 
 JAIPUR BENCH, JAIPUR
ORDER 
1.SB Criminal Misc Petition No.2551/2012
Tripti Vyas versus State of Rajasthan & anr 

2.SB Criminal Revision Petition No. 58/2013
Vinita Ajmera versus State of Rajasthan & anr 

3.SB Criminal Revision Petition No. 59/2013
Niranjan Ajmera versus Pankaj Soni 

Date of Order :					12th  March, 2013
HON'BLE MR. JUSTICE MN BHANDARI
Mr Jitendra Mitruka 
Mr Rajesh Kala  -  	for petitioners
Mr Praveen Jain 
Mr Pankaj Gupta – Members of the Bar 
Mr Laxman Meena, PP – for the State  
BY THE COURT: 		

REPORTABLE In these petitions, common question of law is involved thus were heard together and are decided by this common order.

The facts in brief in Criminal Misc. Petition No.2551/2012 are that a complaint for offence under section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act') was filed. During the course of trial, petitioner moved an application for re-trial as evidence cannot be used by successor Magistrate in summary trial. He should make fresh trial of the complaint. The application aforesaid was dismissed so as the revision petition. Hence, criminal misc. petition. In other two criminal revision petitions, applications of similar nature were dismissed by the trial court.

Learned counsel for petitioners submit that as per section 143 of the Act of 1881, complaint for offence under section 138 of the Act is to be tried summarily. It is as per the procedure given under section 262 to 265 CrPC. The conviction and sentence can however be for imprisonment upto one year and fine upto Rs.5000/-.

In view of the aforesaid, complaint for offence under section 138 of the Act cannot be tried as summons case. In the instant case, evidence was recorded by the predecessor Magistrate thus as per section 262 to 265 read with section 326(3) CrPC, successor Magistrate cannot use that evidence. The application was moved for re-trial of complaint, however, it was dismissed erroneously treating it to be a summons case though no order for it was passed. The impugned orders have been passed in ignorance of section 143 of the Act of 1881 so as the judgment of the Apex Court in the case of “Nitinbhai Saevatilal Shah & anr versus Manubhai Manjibhai Panchal & anr”, reported as AIR 2011 SC 3076. Prayer is accordingly to set aside the orders.

I have considered submissions of learned counsel for the parties and members of the Bar on the issue and perused the record of the cases.

The controversy pertains to the procedure for trial of a complaint under section 138 of the Act of 1881. Reference of section 143 of the Act of 1881 has been given thus it would be gainful to extract the provision aforesaid -

“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:

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.

(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.” Section 143 to 147 of the Act of 1881 were amended by the Act of 2002 apart from other amendments. As per section 143 of the Act of 1881, case should be tried summarily. It shall be as per section 262 to 265 CrPC, as far as may be, apply to such trials. The first proviso however allows sentence of imprisonment for a term not exceeding one year and amount of fine upto Rs.5000/-.

The second proviso is an exception to summary trial. At the commencement of, or in the course of trial, if it appears to the Magistrate that the nature of case is such that a sentence of imprisonment for a term exceeding one year may have to be passed, recall any witness who may have been examined and proceed to hear or re-hear the case in the manner provided under the Code of Criminal Procedure. It can be even in the cases where Magistrate, for any other reasons, find it undesirable to try the case summarily, shall, after hearing the parties, record an order to that effect and thereafter try the case as per provisions of the Code. Section 143 of the Act thus gives room to the Magistrate to try a case as per other provisions of the Code of Criminal Procedure but, in two eventualities specified above.

The learned counsel for petitioners referred judgment of the Hon'ble Apex Court in the case of “Nitinbhai Saevatilal Shah & anr versus Manubhai Manjibhai Panchal & anr”, reported as AIR 2011 SC 3076. It was a case where complaint for offence under section 138 of the Act of 1881 was tried summarily, however, successor Magistrate appreciated the evidence recorded by his predecessor. The Apex Court held that even consent of the parties cannot give jurisdiction to the court to try case in ignorance of the provisions of law. Reference of section 326(3) CrPC was given to show that a Judicial Magistrate cannot proceed on the substance of evidence recorded by his predecessor as it may cause serious prejudice to the accused and would be difficult for succeeding Judicial Magistrate to decide the matter effectively and to do substantial justice.

The judgment aforesaid was rendered on its own facts where complaint was tried summarily and does not address the issue as to whether it would be lawful for Judicial Magistrate to try complaint as a summons case.

The next judgment is in the case of “Shriniwas versus Akola Janata Commercial Co-operative Bank Ltd and anr” reported as 2008 (4) Crimes 489 (Bombay). In the case aforesaid, it was held that every complaint for the offence under section 138 of the Act of 1881 is to be registered as summary trial case. It can be tried as summons case by invoking second proviso to section 143 (1) of the Act of 1881. Relevant paras of the said judgment are quoted hereunder for ready reference -

“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 to 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 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.” Perusal of the above quoted paras provides some assistance on the issue raised herein. Second proviso to section 143 of the Act of 1881 carves out two exceptions to try a complaint by summons trial case or other procedure given under CrPC.

In the case of “Mandvi Co-op Bank Ltd (M/s) versus Nimesh B Thakore” reported as 2010 CrLR(SC), the issue was slightly different than raised herein as it was mainly concerned to provision of section 145 of the Act of 1881. Para 16 of the said judgment is however quoted hereunder for ready reference -

“16. It may be noted that the provisions of sections 143, 144, 145 and 147 expressly depart from and override the provisions of the Code of Criminal Procedure, the main body of adjective law for criminal trials. The provisions of section 146 similarly depart from the principles of the Indian Evidence Act. Section 143 makes it possible for the complaints under section 138 of the Act to be tried in the summary manner, except, of course, for the relatively small number of cases where the Magistrate feels 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. It is, however, significant that the procedure of summary trials is adopted under section 143 subject to the qualification “as far as possible”, thus, leaving sufficient flexibility so as not to affect the quick flow of the trial process. Even while following the procedure of summary trials, the non-obstante clause and the expression “as far as possible” used in section 143 coupled with the non-obstante clause in section 145 allows for the evidence of the complainant to be given on affidavit, that is, in the absence of the accused. This would have been impermissible (even in a summary trial under the Code of Criminal Procedure) in view of sections 251 and 254 and especially section 273 of the Code. The accused, however, is fully protected, as under sub-section (2) of section 145 he has the absolute and unqualified right to have the complainant and any or all of his witnesses summoned for cross- examination. Sub-section (3) of section 143 mandates that the trial would proceed, as far as practicable, on a day-to-day basis and sub-section (4) of the section requires the Magistrate to make the endeavour to conclude the trial within six months from the date of filing of the complaint. Section 144 makes the process of service of summons simpler and cuts down the long time ordinarily consumed in service of summons in a regular civil suit or a criminal trial. Section 145 with its non-obstante clause, as noted above, makes it possible for the evidence of the complainant to be taken in the absence of the accused. But the affidavit of the complainant (or any of his witnesses) may be read in evidence “subject to all just exceptions”. In other words, anything inadmissible in evidence, e.g., irrelevant facts or hearsay matters would not be taken in as evidence, even though stated on affidavit. Section 146, making a major departure from the principles of the Evidence Act provides that the bank's slip or memo with the official mark showing that the cheque was dishonoured would by itself give rise to the presumption of dishonour of the cheque, unless and until that fact was disproved. Section 147 makes the offences punishable under the Act, compoundable.” In the scheme of the Act of 1881, the provisions of sections 142 to 147 (except section 146) start with non-obstante clause which makes it evidently clear that they have been given over-riding effect over the provisions of the Code of Criminal Procedure, 1973. The Act of 1881 has provided a special procedure and it has been observed by the Apex Court in the case of Mandvi Cooperative Bank Ltd (supra) “lay down a kind of special Code for the trial of offences and to do away with all the stages and processes of regular criminal trial that normally cause inordinate delay in its conclusion”. This explains why the procedure of summary trial has been advised to be adopted under section 143, subject of course to the clarification “as far as possible”, thus leaving sufficient flexibility so as not to effect quick flow of trial. As has been noticed above, a Magistrate is required to normally try the offence under section 138 of the Act of 1881 summarily but there is no bar to tray such matter as summons case under the Act. What fell for consideration before the Apex Court in the case of Nitinbhai Saevatilal Shah (supra) was whether in a case arising out of offence under section 138 of the Act of 1881 tried by Magistrate in a summary way, where predecessor Magistrate recorded evidence, successor Magistrate can proceed with trial and pass sentence. It was held that saving clause of sub-section (1) of section 326 CrPC would not apply to such a case because exception has been carved out in sub-section (3) of section 326 CrPC. As discussed in para 12 to 15 of the judgment supra, it is held that in a summary trial case, absolute prohibition contained in sub-section (3) of section 326 CrPC would apply. The judgment in the case of Nitinbhai Saevatilal Shah (supra) does not hold that in no circumstance, Magistrate can try an offence under section 138 of the Act of 1881 as a summons case, which is expressly made permissible by second proviso to section 143(1). Therefore, in all cases where the Magistrate has proceeded with the matter as a summons case and taken evidence of the complainant on affidavit and cross examination has been recorded word to word, instead substance of their evidence as provided in relation to summary trial by section 264 CrPC and did not maintain the record as required by sections 262 and 265 contained in Chapter-XXI of the Code, there is no bar for a succeeding Magistrate to proceed further or to pass an order of conviction and sentence on the basis of evidence recorded by his predecessor. In doing so, he would be taken to have invoked his powers under second proviso to sub-section (1) of section 143.

The High Court of Kerala in the case of “Kannan versus Narayana Swami” reported as 2012 (4) KLT 737, when confronted with the same question, after considering the judgment of the Supreme Court in the case of Nitinbhai Saevatilal Bhai (supra), held that according to second proviso to section 143(1), Magistrate is not bound to follow the procedure of summary trial, rather ample discretion has been given to him whether or not to follow it. In fact, second proviso to sub-section (1) of section 143 empowers the Magistrate even in a case which has been commenced in summary manner to recall any witness or rehear him in the manner provided by the Code. It would be useful to extract relevant discussions made in paras 4 and 5 of the judgment-

“4. Whether the aforesaid section commencing with a non obstante clause mandates trial of the offence under S. 138 of the N.I. Act summarily, or is it only an empowerment of the magistrate to try such offence even summarily, enabling him to do so, is the question to be examined. The marginal heading of the Section states of the empowerment of the court to try the cases summarily. Sub-s.(1) of that Section mandates that the offences under the Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate. In the trial of the case for such offence it is stated the provisions of Ss.262 to 265 , both inclusive, of the Code of Criminal Procedure shall 'as far as may be' applied. Is there any significance for the words 'as far as may be' which is added to while providing for a trial following the provisions of Ss. 262 to 265 of the Code? That has to be looked into with reference to the aforesaid sections. S. 262 of the Code governs the procedure for summary trial. Sub-s.(1) of that section states that the procedure for trial of a summons case has to be followed with the exceptions mentioned in the following sections under Chap. XXI. Under the Code when an offence is tried summarily on conviction the maximum sentence of imprisonment can be only three months. But with respect to the offence under S.138 of the N.I. Act, even if such offence is tried summarily, the magistrate is competent to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding the limit fixed under S.29 of the Code. Code contemplates of summary trial in petty offences for which the maximum punishment that can be imposed is only three months. Speedy trial of such petty offences enabling the magistrate to record the substance of the evidence, dispensing with recording of evidence as in a regular trial, is provided for in petty cases. However, sub-s.(2) of S.260 of the Code makes it abundantly clear that during the course of such summary trial in a petty case if it appears to the magistrate that it is undesirable to try the case summarily he shall recall the witness already examined and proceed to rehear the case in the manner provided by the Code. So much so, even in a petty case which could be tried summarily the magistrate if it appears that such trial is undesirable, can switch over to other procedure provided by the Code. So much so, even in cases commenced as summary trial the Code empowers to switch over to a different procedure provided. The phraseology 'as far as may be used in S. 143 makes it abundantly clear that the magistrate is not bound to follow the procedure for summary trial and he has a discretion to follow it or not. Second proviso to sub-s. (1) of S.143 of the N.I. Act empowers a Magistrate even in a case which has been commenced in a summary manner, to recall any witness already examined or rehear the case in the manner provided by the Code. What is required is only a primary satisfaction of the magistrate that the nature of the case is such that a sentence for punishment for a term of one year may have to be passed, or, for any other reason it is undesirable to try the case summarily. Only requirement on arriving of such satisfaction to switch over to a different procedure provided under the Code from summary trial already proceeded is recording of an order thereof by the magistrate. The non obstante clause under sub-s.(1) of S. 143 of the Act enabling the magistrate to try the offence following the provisions under Ss. 262 to 265 of the Code though the punishment for such offence on conviction overrides the interdiction under sub-s.(2) S.262 of the Code has necessarily to be examined with reference to the words 'as far as may be' which clearly makes out that there is discretion to the magistrate whether to follow summary trial or to proceed with trial for the offence as in a summons case. The aforesaid words 'as far as may be' makes it clear that it is not mandatory for the Magistrate to follow the procedure for summary trial as contemplated under S. 262 to 265 of the Code in the trial of the offence under S. 138 of the N.I. Act.

5.Both sides concede that the two cases were tried following the procedure in a summons case and not by summary trial as under the provisions of Chap. XXI of the Code. When such be the case, continuation of the trial of the case with the evidence recorded by the predecessor magistrate, and disposal of the cases by the successor magistrate will not be in any way vitiated. An offence under S. 138 of the N.I. Act can be tried only summarily, but, not in a different manner provided by the Code is not the purport of S. 143 of the N.I. Act. That Section only empowers the magistrate to try such offence summarily following the procedure applicable to a petty case as far as practicable. The Apex Court in Nitinbhai Saevatilal Shah's Case referred to above has not expressed any view that the offence under S. 138 of the N.I. Act can be tried only summarily. In fact the head note of that decision is misleading with a statement that 'cheque cases are to be tried summarily'. No such expression is found in the discussion made by the Apex Court in paragraph 9 to 16 of that decision. Moreover it is seen that the Apex Court considered and rendered the aforesaid decision in a case for the offence under S. 138  of the N.I. Act which was captioned as a summary case. That is evident from paragraph 6 of the judgment which is indicative that summary trial was followed by the Magistrate in that case. The discussion made by the Apex Court in Paragraph 14 of that decision spells out what was considered was a case summarily tried by the magistrate. Punishment provided by the trial court also to some extent indicates that the case was tried by the magistrate summarily. Whatever that be, the Apex Court in the aforesaid reported decision has not laid down any binding principle to be followed that cheque cases involving the offence under S. 138 of the N.I. Act have to be tried only summarily. What could be the effect when an offence is tried summarily was considered in the aforesaid decision with reference to a case involving the offence under S. 138 of the N.I. Act, which had been tried as a summary case. Whether a magistrate can try an offence under S. 138 of the N.I. Act otherwise than by a summary trial, with reference to S. 143 of the Negotiable Instruments Act, was not the issue, nor projected for consideration, before the Apex Court in the aforesaid decision. So much so, the head note given 'cheque cases are to be tried summarily' which is not in any way supported by the discussion of the Apex Court in the decision has to be treated only as a misnomer. Another reported decision rendered by this court, namely, Baton's case, referred to above, following the decision of the Apex Court, relied by counsel for petitioner, was also rendered in a case, as seen from the judgment, where the magistrate had adopted the procedure prescribed for summary trial (paragraph 7). Where the procedure adopted by the magistrate is one of summary trial then of course the decision rendered by the Apex Court has to be followed; but, in other cases where trial proceeded as in as summons case no reliance can be placed on the aforesaid decision of the Apex Court to seek for a de novo trial on transfer of presiding officer in the midst of trial.” The courts are over burdened with cases arising out of offence under section 138 of the Act of 1881. If what is contended by learned counsel for petitioners is accepted that regardless of whether a case for offence under section 138 is tried as a summons case, each time a Magistrate is transferred, the witnesses, whose evidence was recorded by him, should be recalled all over again for examination would frustrate very purpose and legislative intent of making procedure simple and expeditious. This is because once it is established that a case has not been tried in a summary way and the Magistrate has proceeded to try it as a summons case, the matter would not fall in sub section (3) of section 326 of the Code enabling the succeeding Magistrate to proceed with the trial from the stage it was left by his predecessor and, in doing so, succeeding Magistrate would rely on the evidence recorded earlier for all purposes. Such an interpretation would be necessary to make the scheme of the Act workable. Any other interpretation would impel all the courts to recall the witnesses in thousands of matters who have already been examined/ cross examined thus creating enormous difficulty for such courts throughout the State, which are over burdened with cases arising out of dishonoured cheques.

In this connection, reference is made to the judgment of the Supreme Court in the case of “Bhaskar @ Prabaskar and ors versus State represented by Inspector of Police, Vollor Taluk Police Station, Vellore” reported as (1999) 8 SCC 551, which was decided albeit in a slightly different context, where, on abolition of TADA court after expiry of Terrorist & Disruptive Activities (Prevention) Act, 1987 (for short 'the TADA Act') in Tamil Nadu, a part heard case involving offence under section 302 IPC read with section 120 B IPC and section 3 and 5 of the TADA Act and section 4 of the Tamil Nadu Public Property (Prevention of Damage and Loss) Act, 1992 was transferred to Sessions Court after dropping out the offence of TADA Act. The issue was as to whether evidence recorded by the Special Judge in TADA Court can be relied by the Sessions Judge or not. The observations made by the Apex Court in the aforesaid case in paras 15 and 21 are of great relevance even for the controversy involved in the present cases thus are reproduced hereasunder -

“15. The archaic concept was that the very same judicial personage who heard and recorded the evidence must decide the case. That concept was in vogue for a long time. But over the years it was revealed in practice that fossilisation of the said concept, instead of fostering the administration of criminal justice, was doing the reverse. Very occasionally judicial officer of one court was changed and was replaced by another. As evidence had to be recorded afresh by the new officer under the old system, witnesses who were already examined in the cases at the cost of considerable strain and expenses - not only to them but to the exchequer - were re-summoned and re-examined. The litigation cost thereby inflicted on the parties used to soar up. The process would have to be repeated over again if such next judicial personage also was changed. Eventually it was learnt that the object sought to be achieved by such repetitions, when compared with the enormous cost and trouble, was not of much utility. Hence the legislature wanted to discontinue the aforesaid ante-diluvian practice and decided to afford option to the successor judicial officer. Legislature conferred such option only to the magistrates at the first instance and at the same lime empowered them to re-examine the witnesses already examined if they considered such a course necessary for the interest of justice. As the new experiment showed positive results towards fostering the cause of criminal justice the Law Commission recommended that such option should advisedly be extended to judges of all other trial courts also.

21. A contrary interpretation would lead to unwholesome repetition of the entire exercise involving considerable cost to the exchequer, financial strain to the accused and waste of time of the courts. Greater than all those, it would inflict untold inconveniences to the witnesses who are the innocent parties in the case. The Court cannot afford to be oblivious to the reality that no witness is, on his own volition, desirous of going to the Court for remaining there until his turn is called to mount the witness stand and to undergo the agony of facing grueling questions. He does it as he has no other option when summoned by the Court. Most of the witnesses can attend the courts only by bearing with all the inconveniences to themselves and at the cost of loss of their valuable time. When any witness had already undergone such agony once in connection with the same case, no effort to save him from undergoing that agony once again for the very same case should be spared, unless such re-summoning is absolutely necessary to meet the ends of justice.” The judgment in the case of “Darshan Lal versus State of Punjab & ors”, reported as III (2012) BC 666 is again on the question as to whether section 326 CrPC would apply for offence under section 138 of the Act of 1881 thus not so relevant to the facts and legal issue involved in these cases.

Last judgment is in the case of “Ajay Nahta versus Rakesh K Jain & anr”, reported as 2012(1) CrLR (Raj.) 140. Therein, the prayer was similar to this case. It was not accepted by this court looking to the fact that case was not tried summarily. Paras 3 to 5 of said judgment are quoted hereunder for ready reference-

“3. The main contention of the present petitioner is that a petition under Section 138 of the Negotiable Instruments Act was pending and trial was commenced and the statement of complainant was recorded by the then Presiding Officer, who has been transferred. After than, an application under Section 143 of the Negotiable Instruments Act was moved for de-novo trial, which was rejected. It has been submitted the learned counsel for the petitioner that under Section 143 of the Negotiable Instruments Act, it was obligatory on the concerned Magistrate to try the case summarily or order otherwise and when no otherwise order was passed, it should be treated as summary trial and when the Presiding Officer has been changed, then denovo trial was must.He has placed reliance on the judgment delivered in Prakash Chand vs. State of Rajasthan, 1991 Cr.L.R. (Raj.) 446, which is in regard to Essential Commodities Act, where the provisions are to try all the offences under the Act in summary way.

4. Learned counsel for the respondent has submitted that the case was tried as a regular summon case and as such, de-nova trial was not necessary. He has placed reliance upon the judgments, delivered in Shivaji Sampat Jagtap vs. Rajan Hiralal Arora & Anr., 2007 Cri.L.J. 122, wherein the matter was discussed at length and it was specifically held that when a case under Section 138 of the Negotiable Instruments Act has not been tried summarily and no record has been prepared under Sections 263 and 264 of the Code, it will be treated that the case has been tried otherwise and Section 326 (3) Cr.P.C. has no role to play.In other words, if no record as per Sections 263 and 264 of the Code has been maintained by the Magistrate, it will be treated that the case has been tried as regular summon case and not tried in summary way as contemplated under Section 143 of the Negotiable Instruments Act and the provisions of Section 326(3) of the Code will not attract and no de-nova trial is needed.

5. Same is the factual situation in the present case. The case was not tried summarily, no record was prepared under Sections 263 and 264 Cr.P.C., hence, it will be treated as tried as regular summon case and no de-nova trial was warranted.” The question would however be as to at what stage it can be tried other than by summary trial. Perusal of second proviso to section 143 (1) of the Act shows that it can be at the commencement or in the course of summary trial. The word 'commencement' is of significance inasmuch as after registration of the case, a decision can be taken to have summons trial or it can be during the trial.

As per second proviso to section 143(1) of the Act of 1881, trial of the case can be by the other mode provided under the Code of Criminal Procedure. It can be in two circumstances already narrated in the preceding paras. First, when it appears to the Magistrate that sentence of imprisonment may be of a period more than a year. Learned counsel for accused petitioners stated that if at the commencement of or during course of trial, an opinion is formed by the Magistrate expressing sentence of imprisonment to be of more than one year then it would be prejudicial to the accused and will show pre-determination of the Magistrate.

The minute examination of second proviso to section 143 (1) reveals that when it appears to the Magistrate that sentence of imprisonment may be for a period of more than a year then order is not required to be recorded. The order is required to be recorded after hearing the parties when Magistrate finds it to be undesirable to try the complaint summarily. Therefore, second proviso to section 143 (1) of the Act of 1881 has to be divided in to parts so that no order is to be recorded to show pre-determination of learned Magistrate for imprisonment. It is for that reason that opening words of the proviso indicate that when “it appears to the learned Magistrate that nature of the case is such which may require sentence of imprisonment of more than a year”, trial can be by the mode other than summary trial. The use of word “appears” is of substance. The word “appears” means when the Magistrate prima facie finds or forms an opinion about nature of the case which may require sentence of imprisonment of more than a year, case can be tried other than by summary procedure. Prima facie opinion is not required to be recorded, otherwise, it will show pre-determination of the learned Magistrate. The second proviso gives two grounds to depart from summary procedure. In second part, when it is found undesirable to hold summary trial, reasons are required to be recorded after hearing the parties.

With the aforesaid interpretation, the issue raised by learned counsel for accused petitioners regarding pre-determination of Magistrate would not arise.

There is another reason not to record an order. If it appears to the Magistrate that sentence of imprisonment may be of a period exceeding one year. If order is recorded then reasons are to be given. It is to justify the order. Recording of order with reasons would comment on the nature of the case and, in that eventuality, it will cause prejudice to the accused and further show pre-determination of mind. It is required to be avoided. To have harmonious interpretation of second proviso, it has to be concluded with the comments that as and when it appears to the Magistrate that nature of the case is such where sentence of imprisonment may be for a term exceeding one year, order is not required to be recorded after hearing the parties, however, if it is found to be undesirable to try the complaint summarily then order is to be passed after hearing parties.

What can be the reasons to find it to be undesirable to proceed with summary trial, can be, if there is a denial of issuance of a cheque or signatures on it or showing that no legally enforceable debt or liability exist to invoke section 138 of the Act of 1881. In such cases, proper chance of defence has to be given to the accused. The Magistrate should record an order after hearing the parties. There can be many such reasons out of which few have been illustrated above.

Accordingly, trial courts are directed to evolve the method given in this judgment while trying the complaint for offence under section 138 of the Negotiable Instruments Act, 1881, more specifically when it is to be tried as summons case. It will avoid type of controversy raised herein. When it is summons trial without an order, it would be presumed that it appeared to the Magistrate that sentence of imprisonment may be of more than a year.

Coming to the facts of these cases, I find that the courts below are trying these cases by summons trial. Facts aforesaid are coming out as the accused cross examined the complainant extensively and it was recorded by the court word to word. It does not happen in the summary trial where only substance of the evidence is to be recorded. In the background aforesaid, section 326(3) CrPC has no application to the facts of these cases. The intention of the accused petitioners is otherwise coming out from the fact that their effort is to delay the proceedings and otherwise in a summons trial, an accused can get better right of defence than in summary trial. Yet the accused petitioners herein opposing summons trial . It is with a view to delay the proceedings.

In the light of the discussion made above, I do not find any illegality in the impugned orders.

However, to summarise and answer the questions raised herein, following directions/ observations are made -

1- As and when complaint for the offence under section 138 of the Act of 1881 is filed, it would be registered as summary trial case, in view of section 143 of the Act of 1881.

2- If case is tried summarily then sentence of imprisonment should not be exceeding the period given under first proviso to section 143 of the Act of 1881. The provisions of section 262 to 265 CrPC would not to apply rigidly but as far as may be, apply to such trials.

3- The learned Judicial Magistrate would be at liberty to try a complaint as summons case and the other mode provided under CrPC at the commencement or during summary trial, if it appears that sentence of imprisonment for a term exceeding one year may have to be passed. The opinion aforesaid would be prima facie and not to be recorded as it may cause prejudice to the accused.

4- The learned Judicial Magistrate may further hold summons trial when he finds it undesirable to try the case summarily. For the aforesaid, Magistrate would record order after hearing the parties and proceed with trial in the manner provided under second proviso to section 143 of the Act of 1881.

5- A decision to have summons trial can be taken at the commencement or during course of trial, in the manner indicated above.

6- It is made clear that even if it appears that nature of the case is such which may require sentence of imprisonment exceeding one year or it is found to be undesirable to try case summarily, it would not be necessary for the Magistrate to cause sentence of more than a year, if an order of conviction is passed.

The aforesaid directions are issued to resolve the problem arose before the trial courts and pending consideration before this court in other cases.

Accordingly, all the petitions are dismissed so as the stay applications.

(MN BHANDARI), J.

bnsharma All corrections made in the judgment/ order have been incorporated in the judgment/ order being emailed.

(BN Sharma) PS-cum-JW