Court No. - 44
Case :- APPLICATION U/S 482 No. - 30953 of 2018 Applicant :- Bali Ram @ Vinod Kumar Opposite Party :- State Of U.P. And 2 Ors Counsel for Applicant :- Rajesh Yadav Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard Mr. Rajesh Yadav, learned counsel for the applicant and the learned A.G.A. for the State.
2. This application under section 482 Cr. P. C. has been filed challenging the summoning order dated 10.10.2014 passed by the Chief Judicial Magistrate, Bijnor in Complaint Case No. 1990 of 2014 (Vijay Patil vs. Bali Ram @ Vinod Kumar), under Section 138 N.I. Act, Police Station Kotwali City, District Bijnor.
3. The applicant has also challenged the order dated 23.5.2018 passed by the Additional Sessions Judge, Court No.3, Bijnor in Criminal Revision No. 12 of 2017 (New No. 182 of 2017) (Bali Ram vs. State of U.P. and Others), whereby the aforesaid criminal revision preferred against the summoning order dated 10.10.2014 has been dismissed.
4. Learned counsel for the applicant invited the attention of the Court to the judgment of the Apex Court in the case of J V Baharuni, Giriraj Proteins Pvt. Ltd. Baldevbhai Ramjibhai Patel vs. State of Gujarat, D M Finance, Vishnubhai Hargovinddas Patel reported in 2014 (10) SCC 494. He has referred to Paragraph No. 61 of the aforesaid judgment, which is reproduced herein below:
"61. However, to summarise and answer the issues raised herein, following directions are issued for the Courts seized off with similar cases:
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.
2. The learned Magistrate has the discretion under Section 143 of the N.I. 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 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.
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.
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. Remitting the matter for de novo trial should be exercised as a last resort and should be used sparingly when there is grave miscarriage of justice in the light of illegality, irregularity, incompetence or any other defect which cannot be cured at an appellate stage. The appellate Court should be very cautious and exercise the discretion judiciously while remanding the matter for de novo trial.
6. While examining the nature of the trial conducted by the Trial Court for the purpose of determining whether it was summary trial or summons trial, the primary and predominant test to be adopted by the appellate Court should be whether it was only the substance of the evidence that was recorded or whether the complete record of the deposition of the witness in their chief examination, cross examination and re-examination in verbatim was faithfully placed on record. The appellate Court has to go through each and every minute detail of the Trial Court record and then examine the same independently and thoroughly to reach at a just and reasonable conclusion."
5. Learned counsel for the applicant has also referred to the provisions of Section 143 N.I. Act, which provides for the trial of an offence under the provisions of N.I. Act as a summary trial case. For ready reference Section 143 N.I. Act is quoted herein-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: 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."
6. He next submits that the court below, while passing the summoning order dated 10.10.2014, treated the complaint filed by the complainant- opposite party no.2 as a complaint case and proceeded with the same as a complaint case. However, no reason has been recorded in the order dated 10.10.2014 as to why a departure has been made from the procedure provided under Section 143 N.I. Act. Similarly, the revisional court has also not considered this aspect of the matter while passing the impugned order dated 23rd May, 2018. He, thus, submits that once the Apex Court in the case of J V Baharuni, Giriraj Proteins Pvt. Ltd. Baldevbhai Ramjibhai Patel (Supra) has issued direction to all the courts in India to strictly comply with the directions contained in the aforesaid case, no exception can be carved out by the courts below to the same. It is, thus, contended that since the impugned orders passed by both the courts below have been passed in ignorance of the judgment of the Apex Court in the case of J V Baharuni, Giriraj Proteins Pvt. Ltd. Baldevbhai Ramjibhai Patel (Supra), impugned orders passed by both the courts below cannot be sustained and are, therefore, liable to be quashed.
7. Learned A.G.A. for the State on the other-hand supported the impugned orders. He submits that the disputed cheque was issued by the applicant but the same was not encashed on account of insufficient funds. Therefore, the opposite party no.2 was right in proceeding against the applicant by filing a complaint under Section 138 N.I. Act, the trial of a case as summary trial or summons trial will not make much difference as the criminality alleged against the applicant does not stand ruled out in any circumstance.
8. The issue concerning the Court is that there is difference between summary trial and summons trial. The period of sentence which can be awarded is different and the rights available to an accused in summons trial are not available in summary trial. Further more, the directions issued by the Apex Court as noted herein above, cannot be allowed to go unnoticed or non-complied with.
9. Consequently, the present criminal misc. application succeeds and is allowed. The impugned summoning order dated 10.10.2014 passed by the Chief Judicial Magistrate, Bijnor as well as the order dated 23r May, 2018 passed by the Additional Sessions Judge, Court No.3, Bijnor in Criminal Revision No. 12 of 2016 (Bali Ram vs. State of U.P. & Others) are, hereby, set aside. The matter is remanded to the Chief Judicial Magistrate, Bijnor to decide the summoning of the applicant afresh in light of the judgment of the Apex Court in the case of J V Baharuni, Giriraj Proteins Pvt. Ltd. Baldevbhai Ramjibhai Patel (Supra) within a period of one month from the date of production of a certified copy of this order.
Order Date :- 27.9.2018 HSM