TaxTMI 
TaxTMI 
2015 (3) TMI 858
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....the contracted jobs and to deposit the money out of sale proceeds on a daily basis in the State Bank of India, Veraval Branch. The business dealings between the parties were going on since 1996 and in terms of the contract appellants furnished to the Respondent No. 2, two Cheques bearing Nos. 884572 and 884574, dated 24th June, 2000 for Rs. 10 lakhs and Rs. 25 lakhs, respectively. When the cheques were presented for realization, they bounced with the endorsement "not arranged for". Hence, respondent No. 2 initiated criminal proceedings under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I. Act') against the appellants and filed Criminal Complaint No. 2131 of 2000. 3. Before the Trial Court it was argued on behalf of Respondent No.2-Corporation that the cheques in question were issued by the appellants to discharge their part liability for clearing the dues whereas the case of the appellants was that there were no dues payable to the Respondent Corporation and the Cheques were taken by the complainant-Corporation as 'guarantee' and misused the same. 4. The Trial Court acquitted the appellant No. 2-accused under Section 255(1) of the Crim....
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....ppellant Nos. 2 to 5 had purchased the stock of castor seeds and as per the statement of account, the appellants paid only Rs. 28,66,677/- and an amount of Rs. 41,89,364/- was outstanding. The appellants, therefore, issued three cheques bearing No.585977 dated 27.6.2001 for Rs. 3,00,000/, cheque No. 585979 for Rs. 2,00,000/- and cheque No. 585980 for Rs. 2,00,000/- drawn on Laxmi Vilas Bank Ltd., Gondal Road, Rajkot towards part payment. When these cheques were presented for realization, they were dishonoured by the Bank with endorsement "insufficient funds". Respondent No. 1 issued notice dated 10.7.2001 to the appellants and upon their failure to obey the notice, he filed a Complaint under Section 138 of the N.I. Act. 9. Before the Trial Court, the appellants denied having committed the offence and the complainant has adduced evidence. By an order dated 30.5.2009 the Trial Court acquitted the accused-appellants. The Respondent No. 1- complainant challenged the acquittal order in an appeal before the High Court of Gujarat under Section 378, Cr.P.C. 10. It was mainly contended by the complainant before the High Court that the Trial Court committed illegality as the offence un....
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.... January, 2013 issued notice and stayed proceedings before the learned Magistrate in pursuance of the remand order passed by the High Court. The matter was also directed to be tagged with SLP (Crl) No. 5623 of 2012. 15. That is how all these appeals are placed before us. In all three matters, the rival contentions of the parties are more or less similar and as the issue involved is one and the same, they are being dealt with and disposed of commonly. 16. Learned counsel for the appellants contended that even though the learned Magistrate who rendered the judgment was not the same who recorded the evidence, the fact remains that the order of acquittal was recorded only after appreciating the entire evidence in its proper perspective and after giving an opportunity to both sides to present their case. Not only that, the learned Magistrate, before delivering the judgment, has given ample opportunity to the parties to bring on record their evidence in detail. The learned Magistrate analyzed the entire oral as well as documentary evidence. After taking into account all material aspects, the Trial Court framed the issues and passed reasoned order arriving at a conclusion that no io....
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....le to hold the accused guilty and convict him" explains in clear terms that the decision was passed after undergoing a regular trial following complete procedure in accordance with the Cr.P.C. Keeping in mind the provisions of Section 465, Cr.P.C., the High Court ought not to have reversed the finding of the Trial Court on account of any error, omission or irregularity in the complaint or order, judgment or other proceedings during trial or inquiry until and unless the Court feels that failure of justice has in fact occasioned thereby. Learned counsel, taking cue from sub-section (2) of Section 465, Cr.P.C., submitted that it is the bounden duty of respondents-complainants to raise the objection, if any, at the earliest stage before the Trial Court itself. But the complainants had not raised any such objection that being summary proceedings, the learned Magistrate who delivered the judgment cannot act on the evidence recorded by his predecessor. The respondents have therefore no locus to raise such objection in appeal, and the High Court had committed a serious error in entertaining the plea of respondents and setting aside the judgment of the Trial Court. In support thereof, learn....
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....Learned counsel for the respondents, on the other hand, contended that even though sub-section (1) of Section 326 Cr.P.C. allows the succeeding Magistrate to act on the evidence so recorded by his predecessor, sub-section (3) thereof puts a bar in respect of summary trials in proceedings under Section 138 of the N.I. Act. After the insertion of Section 143 to the N.I. Act, w.e.f. 6th February, 2003, all offences under Chapter XVII of the N.I. Act shall be tried by the Judicial Magistrate and provisions of Sections 262 to 265 of the Cr.P.C. shall, as far as may be, apply. Basing reliance on Nitinbhai learned counsel for the respondents submitted that the prohibition contained in sub-section (3) of Section 326 is absolute and admits of no exception. Sub-section (2) of Section 143 of the N.I. Act read with absolute bar contained in sub-section (3) of Section 326, Cr.P.C. makes it clear that in summary trial the evidence if recorded by a Magistrate partly, the entire trial vitiates and becomes non est in the law. In such cases, de novo trial is only the alternative. 22. Placing reliance on Mandvi Cooperative Bank Ltd. v. Nimesh B. Thakore 2010 3 SCC 83 learned counsel submitted that....
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....ising with the right of the accused for a fair trial. This results in overcoming the huge docket of Courts with matters pertaining to dishonour of cheques as their prolonged trials became a serious matter of concern. 25. Sub-section (1) of Section 143 of the N.I. Act makes it clear that all offences under Chapter XVII of the N.I. Act shall be tried by the Magistrate 'summarily' applying, as far as may be, provisions of Sections 262 to 265 of Cr.P.C. It further provides that in case of conviction in a summary trial, the Magistrate may pass a sentence of imprisonment for a term not exceeding one year and a fine exceeding Rs. 5,000/-. Sub-section (1) of Section 143 of the N.I. Act further provides that during the course of a summary trial, if the Magistrate is of the opinion that the nature of the case requires a sentence for a term exceeding one year or for any other reason, it is undesirable to try the case summarily, the Magistrate shall, after hearing the parties, record an order to that effect and thereafter recall any witness whom he had examined, or proceed to rehear the case.Sub-section (2) mandates that so far as practicable, the trial has to be conducted on a day ....
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....ccused. 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. ** ** ** 25. It is not difficult to see that Sections 143 to 147 lay down a kind of a special code for the trial of offences under Chapter XVII of the Negotiable Instruments Act and Sections 143 to 147 were inserted in the Act by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 to do away with all the stages and processes in a regular criminal trial that normally cause inordinate delay in its conclusion and to make the trial procedure as expeditious as possible without in any way compromising on the right of the accused for a fair trial. Here we must take notice of the fact that cases under Section 138 of the Act have been coming in such great multitude that even the introduction of such radical measures to make the trial procedure simplified and speedy has been of....
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....e final order of sentence imposed upon the accused and remanded the matter to the learned Magistrate for passing appropriate order on sentence and compensation. Aggrieved by the said order, appeal came before this Court. 29. Dealing with the said appeal, this Court, while relying on the provisions of Section 326, Cr.P.C. observed: '12. Section 326 is part of the general provisions as to inquiries and trials contained in Chapter XXIV of the Code. It is one of the important principles of criminal law that the Judge who hears and records the entire evidence must give judgment. Section 326 is an exception to the rule that only a person who has heard the evidence in the case is competent to decide whether the accused is innocent or guilty. The section is intended to meet the case of transfers of Magistrates from one place to another and to prevent the necessity of trying from the beginning all cases which may be part-heard at the time of such transfer. Section 326 empowers the succeeding Magistrate to pass sentence or to proceed with the case from the stage it was stopped by his preceding Magistrate. Under Section 326(1), the successor Magistrate can act on the evidence record....
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....uld have been, otherwise required to record in a regular trial and his judgment should also contain a brief statement of the reasons for the finding and not elaborate reasons which otherwise he would have been required to record in regular trials. 17. The mandatory language in which Section 326(3) is couched, leaves no manner of doubt that when a case is tried as a summary case a Magistrate, who succeeds the Magistrate who had recorded the part or whole of the evidence, cannot act on the evidence so recorded by his predecessor. In summary proceedings, the successor Judge or Magistrate has no authority to proceed with the trial from a stage at which his predecessor has left it. The reason why the provisions of sub-sections (1) and (2) of Section 326 of the Code have not been made applicable to summary trials is that in summary trials only the substance of evidence has to be recorded. The court does not record the entire statement of witnesses. Therefore, the Judge or the Magistrate who has recorded such substance of evidence is in a position to appreciate the evidence led before him and the successor Judge or Magistrate cannot appreciate the evidence only on the basis of evidence....
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....ng empowered by law in this behalf, does any of the following things, namely: ** ** ** (l) tries an offender; ** ** ** his proceedings shall be void." A plain reading of this provision shows that the proceedings held by a Magistrate, to the extent that he is not empowered by law, would be void and void proceedings cannot be validated under Section 465 of the Code. This defect is not a mere irregularity and the conviction of the appellants cannot, even if sustainable on the evidence, be upheld under Section 465 of the Code. ** ** ** 25. This is not a case of irregularity but want of competency. Apart from Sections 326(1) and 326(2) which are not applicable to the present case in view of Section 326(3), the Code does not conceive of such a trial. Therefore, Section 465 of the Code has no application. It cannot be called in aid to make what was incompetent, competent. There has been no proper trial of the case and there should be one.' 31. In Nitinbhai Saevantilal Shah (supra) we find that the entire case was tried 'summarily' and the Magistrate who issued process, was transferred after recording the evidence. The succeeding Magistrate delivered the....
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....s were tried "summarily" or in a "regular way". 35. Be that as it may, to satisfy ourselves we have carefully gone through the records of the Trial Court as well as the High Court in each matter before us. There is no doubt, as per the record, learned Magistrate has not specifically mentioned that the trial was conducted as summons case or summary case. Though in the record of SLP(Crl) No. 734 of 2013, at some places the word 'summary' was mentioned as regards to the nature of proceedings of the case, having given our anxious and thorough consideration, we found that the word 'summary' used therein was with reference to Chapter XXII of Cr.P.C., 1882 and it does not relate to the 'summary trial' envisaged under Section 143, of the N.I. Act. Pertinently, before the Trial Court the Suit No. 4457 of 2001 has been referred at some places as 'Summary Suit' and at some other places it has been referred as 'Civil Suit'. Similarly, the case number 5294 of 1998 has been shown at some places as Summary Case and at some other places it was shown as Criminal Case. After a careful examination of the record, we came to the conclusion that the word 's....
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...., 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 i....
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.... Petition No. 1309 of 2012, dated 1-7-2013] decided on 1st July, 2013, the Rajasthan High Court refrained itself from remitting the matter for a de novo trial and directed to decide the matter on merits by lower appellate Court. 42. In yet another decision of Rajasthan High Court in Tripati Vyas v. State of Rajasthan 2014 (1) Crimes 46, the High Court held that wherein the accused cross examined the complainant extensively and it was recorded by the Court word to word which does not happen in the summary trial where only substance of the evidence is to be recorded, Section 326(3) Cr.P.C. has no application. Accordingly, the High Court held that re-trial for offence under Section 138 of Negotiable instruments Act, 1881 could not be ordered on mere ground of transfer of Magistrate. 43. Thus, there is patent illegality in the approach undertaken by the High Court in remanding the matter for a de novo trial mechanically on the ground of change of Magistrate, without proper appreciation of the material before it. Out of three cases before us, in SLP (Crl.) No. 5623/2012 there is a finding recorded by the High Court that the matter has been tried summarily. In other two cases i.e. ....
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....o trial on the basis of flawed application of Nitinbhai's Saevatilal Shah case (Supra) in spite of the fact that these cases are pending for over a decade. It went unnoticed by the High Court that the appellants have raised the plea of mode of trial due to change of Magistrate for the first time before the High Court. The same has not been raised when the change of Magistrate took place in the Court below during the course of trial. This clearly shows that only for the purpose of protracting the litigation, the plea has been taken for the first time. Had it been their case that because of the procedure adopted by the Court substantial miscarriage has taken place, they would have raised this plea at a much early stage of the proceedings. 49. 'Speedy trial' and 'fair trial' to a person accused of a crime are integral part of Article 21 of the Constitution of India. There is, however, qualitative difference between the right to speedy trial and the accused's right of fair trial. Unlike the accused's right of fair trial, deprivation of the right to speedy trial does not per se prejudice the accused in defending himself. The right to speedy trial is in its....
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.... or fill up the lacuna. A retrial is not the second trial; it is continuation of the same trial and same prosecution.... the appeal court must closely keep in view that while protecting the right of an accused to fair trial and due process, the people who seek protection of law do not lose hope in legal system and the interests of the society are not altogether overlooked." 52. This Court in Mehsana Nagrik Sahkari Bank Ltd. (supra) observed that where evidence in case is recorded in full and not in a summary manner, it is not fit to direct de novo trial on transfer of Magistrate. 53. In Satyajit Banerjee v. State of W.B. [2005] 1 SCC 115, a two-Judge Bench of this Court was concerned with an appeal by special leave wherein the appellant-accused were charged for the offences punishable under Sections 498-A and 306 of the Penal Code. The trial court acquitted the accused persons. In revision preferred by the complainant, the High Court set aside the order of acquittal and directed a de novo trial of the accused. While dealing with the revisional jurisdiction of the High Court in a matter against the order of acquittal, the Court observed that such jurisdiction was exercisable b....
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....he Trial Court. But to replay the whole laborious exercise after erasing the bulky records relating to the earlier proceedings by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes imperative for the purpose of averting "failure of justice". The superior Court which orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the trouble to reach the Court and deposed their versions in the very same case. The re-enactment of the whole labour might give the impression to the litigant and the common man that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation [See Bhooraji (supra) 59. Thus, in summation, we are of the considered opinion that the exercise of remitting the matter to Trial Court for de novo t....
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....ective 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. 62. We, therefore, direct all the Criminal Courts in the country deal....