1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.8270/2014 C/W CRIMINAL PETITION NO.8269/2014 Between:
Gururaj Joshi S/o. Pralhadacharya Joshi Practicing Advocate Aged about 54 years No.2, 9th Cross Kumara Park-West Bangalore-560 020. … Petitioner (Common) (By Sri Anil Kumar M.B., Advocate) And:
Sri V. Selvaraj S/o. Vedan Aged about 63 years Proprietor: M/s Sun Minerals In front of Taluk Office Chikkanayakanahalli Tumkur District-572 101. …Respondent (Common) (By Sri S. Rajendra, Advocate) These Criminal Petitions are filed under Section 482 of Cr.P.C praying to quash the impugned orders dated 27.11.14 passed by the XV ACMM Court, Bangalore in C.C.Nos.22292/2011 and 22293/2011 respectively, which is produced as Annexure-A.
These criminal petitions coming on for Admission this day, the Court made the following:
COMMON ORDER These two petitions are directed against the orders dated 27.11.2014, passed by XV Additional Chief Metropolitan Magistrate, Bengaluru in C.C.Nos.22292/2011 and 22293/2011 respectively, whereby the learned Magistrate has allowed the applications filed by the respondent/accused under Sections 259 and 260 of Cr.P.C read with Section 143 of Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the Act’) and directed to convert the trial as a warrant trial case.
2. The undisputed facts are that the petitioner (hereinafter referred to as “complainant”) initiated action against the respondent under Section 138 of the Act for dishonour of cheques issued by the respondent. Learned Magistrate took cognizance of the said offence and issued summons to the respondent. In proof of the charge under Section 138 of the Negotiable Instruments Act, the complainant examined himself as PW1 and got marked Exs.P1 to P10. At that stage, before the cross-examination of PW1, respondent/accused moved applications under Sections 259 and 260 of Cr.P.C read with Section 143 of the Act in both the cases. The applications were based on the plea that the respondent/accused has produced several documents before the trial Court in relation to the transaction between him and the complainant. These proceedings were initiated against the complainant before Karnataka State Bar Council as well as before Chikkanayakanahalli Police Station for having clandestinely misused documents while the complainant was representing the respondent as his pleader, and therefore he proposed to confront these documents to PW1 and hence, sought to convert summary trial into a warrant trial.
3. The applications were opposed by the complainant. But, placing reliance on Section 143 of the Negotiable Instrument Act and Section 259 of Cr.P.C., by the impugned orders, the learned Magistrate allowed the applications. Learned Magistrate was of the opinion that the complainant is shielded with legal presumptions contemplated under Sections 118 and 139 of the Act and the said presumption is rebuttal in nature and therefore, heavy burden is placed on the accused to rebut presumption and under the said circumstances, resorting to the provisions of Sections 262 to 265 of Cr.P.C or adopting summary trial in high stake cases, is likely to prejudice the defence of the accused and thus, the learned Magistrate allowed the applications.
4. Learned counsel for the petitioner has placed reliance on the decision of this Court in Crl.P.No.3579/2014 dated 02.08.2008 wherein, this Court following the earlier decisions of this Court in the case of M/s. Mesh Trans Gears Private Limited, Bangalore vs. Dr.R.Parvathreddy reported in ILR 2014 KAR 5237 and in the case of M/s. Leo Granex vs. M/s. Pavillion Granites and Others reported in ILR 2009 KAR 4062, has held that Section 143 of the Act has a mandatory effect which means that the provisions of Section 259 of Cr.P.C regarding a warrant trial shall have no application in respect of an offence under Section 138 of the Act. However, in a later decision of this Court in the case of Mahendra Kumar vs. Gangamma B reported in LAWS (KAR)-2018-6-23, it is held that the second proviso appended to Section 143 empowers the Magistrate in peculiar circumstances of a case to try the offence under the Act as a warrant case. Hence, it is contended that in view of these divergent views, the impugned orders are liable to be interfered with.
5. Further, referring to Section 143(3) of the Act, learned counsel for the petitioner has emphasized that the legislature has stipulated a time limit for disposal of the cases filed under the Act. This provision manifests the intention of the legislature that the cases under the Act should always be tried as summary trial and not as warrant trial, as sought to be contended by the respondent/accused. It is the submission of learned counsel for the petitioner that if the ratio laid down by this High Court in Mahendra Kumar’s case (supra) is followed, it would render Section 143 of the Act redundant and no trial could be completed within the time limit prescribed by the Court, defeating the very object of the Act, and hence, the impugned orders passed by learned Magistrate are liable to be set aside.
6. Learned counsel appearing for the respondent/accused has argued in support of the impugned orders, contending that the learned Magistrate has considered the peculiar facts and circumstances of the cases and has held that elaborate trial is required to be conducted in these cases, in terms of the proviso to Section 143 of the Act and therefore, there is no reason to interfere with the impugned orders.
7. Considered the submissions and perused the records.
8. Insofar as the decisions relied on by the learned counsel for the petitioner are concerned, I do not find any inconsistency in the ratio laid down by this Court in Leo Granex and Mahendra Kumar cases. In both the decisions, it is held that the trial in respect of the offence under the provisions of the Act is necessarily a summary trial as prescribed under Section 143 of the Act. Even in the later decision rendered by this Court, this Court has not departed from this view. On the other hand, this Court has applied the proviso appended to the facts of the said cases and has held that under the peculiar facts and circumstances of the case, the learned Magistrate was justified to convert the trial into a warrant trial. Therefore, there is no inconsistency in the judgments rendered by this Court insofar as the principle of law enunciated therein is concerned.
9. The question germane for consideration in these petitions is whether in the facts and circumstances of these cases, the learned Magistrate was justified in invoking the second proviso to Section 143 of Negotiable Instrument Act ?
Section 143 of the Negotiable Instrument Act reads 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:
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.
10. From the reading of the second proviso to Section 143, it is clear that the jurisdiction to convert the summary trial into a warrant trial is conferred on the Magistrate only when 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.
11. In the instant cases, it is not the case of either of the parties nor has the Magistrate recorded any finding to the effect that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed against accused. On the other hand, learned Magistrate has proceeded on the premise that having regard to the defence set up by the accused, it is undesirable to try the case summarily. This reasoning, in my view, cannot be countenanced. Learned Magistrate failed to note that accused has not entered into defence as on the date of making the applications. Even otherwise, defence set up by the accused cannot be a factor to determine whether the nature of the case warrants imprisonment exceeding one year or that it is undesirable to try the case summarily. No doubt in the applications, respondent/accused had put forth a plea that the complainant is guilty of fraud and that he proposed to bring on record necessary documents in support of the fraud played by the complainant. But it is trite that the averments made in the applications cannot be construed as a defence set up by the accused. As a matter of fact, the complainant/PW1 was not cross-examined and no defence was suggested to the witness. Stage had come for the accused to enter into defence. In the said circumstances, there was absolutely no basis for the learned Magistrate to hold that having regard to the defence set up by the accused, it would be undesirable to try the case summarily. Since the accused has not entered into defence as on the date of making the applications, learned Magistrate was not entitled to invoke the second proviso to Section 143 of the Act. To this extent, the impugned orders, cannot be sustained and are liable to be quashed and are accordingly quashed.
12. However, it is made clear that during the course of trial, if the learned Magistrate arrives at the opinion that having regard to the nature of the evidence brought on record, it is undesirable to try the case summarily, the learned Magistrate shall pass appropriate orders in terms of the second proviso appended to Section 143 of the Act and proceed in the matter in accordance with law. Subject to these observations, the impugned orders passed by XV Additional Chief Metropolitan Magistrate dated 27.11.2014 are set-aside. As a result, learned Magistrate shall proceed with the trial summarily. Petitions are disposed of in terms of this order.
Since the matters are pending on board since 2011, the trial Court is directed to dispose of the cases as expeditiously as possible.
Sd/- JUDGE PYR