The Legal representative of the complainant in C.C.17/2011 of the Judicial First Class Magistrate Court, Erattupetta, and 3rd respondent in Crl.A.No.328/ 2011, of the Additional Sessions Court, Kottayam, is the revision petitioner herein.
2. The original complainant filed a complaint against the 2nd respondent herein alleging offences under section 138 of the Negotiable Instruments Act. Originally, it was taken on file as C.C.153/2004 and thereafter it was converted to S.T.211/2006, when the case was pending before the Judicial First Class Magistrate Court, Pala. Thereafter, the case was made over to Judicial First Class Magistrate Court - II, Pala, as per the orders of the Chief Judicial Magistrate, Kottayam. While the case was pending before Judicial First Class Magistrate Court-II, Pala, the complainant was examined as PW1 and exhibits P1 to P11 were marked on his side. After examination of accused under Section 313 of Code of Criminal Procedure and after hearing both sides, when the case was posted for judgment, the case was transferred to Judicial First Class Magistrate Court, Erattupetta as per the orders of the Sessions Court, Kottayam in Criminal.M.P.No.2730/2010. There the case was renumbered as C.C.17/2011. During the pendency of the proceedings in the lower court, the original complainant died and the revision petitioner was substituted as complainant in his place. After the case was transferred to Judicial First Class Magistrate Court, Erattupetta, the learned Magistrate, after hearing both sides and evaluating the evidence found the 2nd respondent guilty under Section 138 of the Negotiable Instruments Act, and convicted him thereunder and sentenced him, against which the 2nd respondent filed Criminal Appeal No.328/2011 before the Sessions Court, Kottayam which was made over to Additional Sessions Court, Kottayam for disposal. The learned Additional Sessions Judge - II (special), by the impugned order relying on the decision of this court in Kanakarajan v. Vipin in (2013 (4) KLT, 227) found that there was no specific order passed by the Magistrate while converting the summary trial case to summons trial case and, in view of the above decision, that vitiated the trial and set aside the order and remanded the case for fresh disposal. That order is being challenged by the revision petitioner before this Court.
3. The Counsel for the revision petitioner submitted that in view of the latest decision of the Supreme Court in Baharuni J.V and another Vs. The State of Gujarat and another [2014(4) KHC 476 (SC)], the order passed by the Court below is unsustainable in law and if detailed evidence is recorded even without giving any special reason for converting the case to summons case trial, that will not vitiate the trial, and in cases already decided on that basis, it need not be sent for de novo trial if detailed evidence was taken. So, the order passed by the Court below is unsustainable in law and same is liable to be set aside and must be sent back to the Sessions Court for disposal on the basis of the evidence now available on record .
4. On the other hand, the counsel for the 2nd respondent submitted that he had even questioned the jurisdiction of the Court to entertain the complaint in the appeal and also the court below had relied on the decision of this Court in Kanakarajan's case for remanding the case as such it cannot be said that it is illegal.
5. It is an admitted fact that the case was originally taken on file on the basis of a private complaint filed by the original complainant before the Judicial First Class Magistrate Court -I Pala, where it was taken on file as C.C.153/2004 and thereafter it is seen from the order of the Court below that without recording any reason, the learned Magistrate had converted the same to one as summary trial case as S.T.211/2006, and thereafter it was transferred to Judicial First Class Magistrate Court -II Pala, where the evidence was completed and during that time, the original complainant died and the present revision petitioner was substituted as complainant as his legal heir. Thereafter, the case was transferred to Judicial First Class Magistrate Court, Erattupetta as per the orders of the sessions court, Kottayam in Criminal M.P.
NO.2730/2010 where it was again renumbered as C.C.17/2011 and then it was disposed of. It is true, that Section 143 of the Negotiable instruments Act, gives power to the Magistrate Court to try the cases under Section, 138 of the Act summarily but, in appropriate cases power has been given to convert the same to summons trial case after recording reasons for the same. It is also true that, this court in Kanakarajan's case (supra) observed that whenever the Magistrate wants to convert the summary trial case to summons trial case, special reasons must be recorded and only thereafter it can be done. If the special reason is not recorded, then it will vitiate the procedure and that will affect the trial of the case as well . Further in Nitinbhai Saevatilal Shah & Another v. Manubhai Manjibhai Panchal & Another in [AIR 2011 SC 3076], the Hon'ble Supreme Court has held that in a summary trial case, by virtue of section 326 of Criminal Procedure Code, if the officer who recorded the evidence is transferred, then de novo trial is required.
6. But that decision was explained in the later decision of the Supreme Court in Baharuni.J.V and another v. State of Gujarath and another [2014 (4) KHC 476(SC)] and in para 61 of the judgment, certain guidelines have been given as to how the procedure will have to be followed in future and in respect of cases pending, which reads as follows:
“However, to summarise and answer the issues raised herein, following directions are issued for the Courts seized off with similar cases :
(i). All the subordinate Courts must make an endeavour to expediate 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.
(ii). 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 NI Act. Such reasons should necessarily be recorded by the Trial Court so that further litigation arraigning the mode of trial can be avoided.
(iii). 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.
(iv). 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.
(v). 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.
(vi). 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.”
7. Further in para 44 of the judgment, the procedure to be followed under Section 143 of the Negotiable Instruments Act has been discussed, which reads as follows:
“ There is no straight jacket formula to try the cases falling under the NI Act. The law provided therefore is so flexible that it is up to the prudent judicial mind to try the case 'summarily' or otherwise. No doubt, the second proviso to Section 143 of the Act specifies that in case the Magistrate does not deem the case fit to try summarily, he shall record an order to that effect after hearing the parties. Just because this directive is not followed scrupulously by the Trial Court would itself not vitiate the entire trial and the Appellate Court should not direct for a de novo trial merely on the ground that the Trial Court had not recorded the order for not trying the case summarily.”
8. The procedure to be followed has been discussed in para 57 and 58 of the judgment also.
9. So while observing the same, the Hon'ble Supreme Court has observed that, merely because the procedure has not been strictly followed by converting the case to summons trial case from summary trial case that would itself not vitiate the trial, and the appellate Court will have to consider the materials available on record and proceed with the case. Further in the last paragraph mentioned above, where the guidelines were summarised, the Hon'ble Supreme Court has observed in cases where substance of evidence is not recorded but detailed evidence taken by recording the evidence tendered by the witnesses in verbatim, then there is no necessity to remand the case directing de novo trial, and it is for the appellate Court to consider as to whether, the substance of the evidence was recorded or the detailed evidence of the witness in verbatim was reproduced for the purpose of considering the question as to whether any de novo trial is required invoking the power under section 326 of Criminal Procedure Code depending upon facts of the case and merely because it was numbered as summary trial case and disposed of, alone is not a criteria for ordering de novo trial. So, the order passed by the Court below relying on the decision of this Court in Kanakarajan's case is not correct in view of the dictum laid down by the Supreme Court in Baharuni.J.V and another's case (supra) . So the order by the Court below remanding the case for fresh de novo trial is set aside and the matter is remitted to the Additional Sessions Court (Special), Kottayam for disposal of the case on merit, after considering the evidence recorded by the Magistrate. If the evidence is not substance recorded but deposition of witnesses is recorded in verbatim as deposed by the witnesses, and detailed evidence was taken, the appellate Court can proceed with hearing of appeal and dispose of the same in accordance with law. I am not going to the question regarding the contentions raised by either of the parties in this revision as for the purpose of disposal of the revision that is not required. Further, all these matters are left open to be considered by the Additional Sessions Judge, while disposing the Criminal Appeal in accordance with law.
10. The parties are directed to appear before the Court below on 8/01/2015 and the Additional Sessions Judge is directed to expediate disposal of the appeal as expeditiously as possible at any rate within 3 months from the date of receipt of the order.
Office is directed to communicate the order to the concerned court immediately.
Sd/-
K.RAMAKRISHNAN JUDGE iap