2008 ALL MR (Cri) 3060
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

A.S. OKA, J.

Tanaji Dinkar Wadakar Vs. Veer Chaphekar Nagari Sahakari Pat Sanstha Ltd. & Ors.

Writ Petition No.1127 of 2006

26th August, 2008

Petitioner Counsel: Mr. S. P. THORAT
Respondent Counsel: Mr. ABHAYKUMAR APTE,Mr. Y. S. SHINDE

Criminal P.C. (1973), S.260(1) - Negotiable Instruments Act (1881) Ss.138, 143 - Power of Court to try cases summarily - Dishonour of cheque - A Judicial Magistrate of the first class is empowered to try an offence u/s.138 of N.I. Act though, he may not be specially empowered in that behalf as required by clause (c), S.260(1) of Criminal P.C..(Para 7)

JUDGMENT

JUDGMENT :- The submissions of the learned counsel for the parties were fully heard on the last date. It will be necessary to refer to the facts of the case in brief. The petitioner is the original complainant who filed a complaint alleging commission of offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the said Act"). The 1st to 11th respondents are the accused in the said complaint.

2. An application was made on behalf of the accused under Section 143 of the said Act praying that the trial may be conducted as a warrant case. The said application was rejected by the learned Magistrate. The accused a preferred a Revision Application before the Sessions Court. By the impugned Judgment and Order dated 22nd March, 2006, the learned Sessions Judge has interfered and by allowing Revision Application it was directed that the learned Magistrate will the conduct the Criminal case as a warrant triable case. This is the Order impugned in this petition under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973.

3. The learned counsel for the petitioner invited my attention to Section 143 of the said Act. He submitted that there was no occasion to invoke the second proviso of sub-section (1) of Section 143 at a stage when even the trial was not started. He submitted that learned Magistrate was empowered to try the case by adopting summary procedure.

4. The learned counsel appearing for the accused supported the impugned Order by pointing out that the stand of the accused is that accused Nos.4 to 11 resigned from the post of the Director of the 1st accused. He submitted that the question is whether accused Nos.1 to 3 have committed any offence especially when the said accused had shown willingness to deposit the cheque amount subject to the petitioner depositing Term Deposit/Fixed Deposit receipts with the 1st accused. He submitted that apart from the fact that the learned Magistrate was not empowered to conduct the matter summarily, considering the defence of the petitioner, the case ought to have been treated as a warrant triable case. He submitted that no interference was called for.

5. I have carefully considered the submissions. The reasons recorded by the learned Sessions Judge for allowing Revision Application are found in paragraph 4 of the Order which reads thus :-

"Mr. Zende, the learned counsel for respondent No.1 submits, on the other hand, that even if the learned Magistrate has not been conferred with the powers by the Hon'ble High Court for holding summary trial, the provision of Section 143, N.I. Act which is a provision under a Special Act will override the general provision U/ss.260 and 261, Cr.P.C.. It is not possible to agree with Mr. Zende. Section 143, N.I. Act contemplates summary trial of cases filed U/s.138, N.I. Act. It is 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, that he after hearing the parties, may hear the case in the manner provided under the Cr.P.C.. The conferment of powers for summary trial by the Hon'ble High Court U/s.261, Cr.P.C. upon J.M.F.C. is conferment of a power which is of foundational nature, but for such conferment of power, the Magistrate cannot try any case summarily. Had the provision U/s.143, N.I. Act been such that the only method of trial provided thereunder was summary trial, one probably could have accepted the argument of Mr. Zende. Since the very section contemplates trial of such cases by other mode also, it cannot be said that the provision would override the general provision under Cr.P.C.. Hence, the order."

6. It will be necessary to refer to section 143 of the said Act which reads that :-

"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."

7. Sub-section (1) of Section 143 starts with non-obstante clause. Sub-section (1) provides that offences under Chapter XVII of the said Act of 1881 shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate. The said Section provides that the provisions of Sections 262 to 265 of the said Code apply to such trials. Thus, a forum is created by Section 143 itself which lays down the procedure to be followed in the trial of the complaint. Reliance was sought to be placed on Clause (c) of sub-section (1) of Section 260 of the said Court by contending that a Magistrate of the 1st Class cannot try a case summarily unless he was specially empowered in this behalf by the High Court. In view of the non-obstante clause used in Section (1) of Section 143 of the said Act, a Judicial Magistrate of the first class is empowered to try an offence under Section 138 of the said Act though, he may not be specially empowered in that behalf as required by Clause (c) of sub-section (1) of Section 260 of the said Code. Therefore, notwithstanding the fact that a Magistrate of the first Class is not specially empowered by this Court, by virtue of sub-section (1) of Section 143 of the said Act, a Magistrate of the first class gets jurisdiction to try an offence under Chapter XVII of the said Act by following the procedure laid down therein. Therefore, to this extent the learned Sessions Judge was not right.

8. Under the second proviso of sub-section (1) of Section 143 of the said Act, in two contingencies the learned Magistrate can decline to try the case by following Sections 262 to 265 of the said Code. The first contingency is in a case where at the commencement of or in the course of a summary trial, it appears to the learned 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. The second contingency is when for any other reason, it is undesirable to try the case summarily. The second proviso further lays down that such order can be passed by the learned Magistrate after hearing the parties and after recording reasons to that effect.

9. In the present case, obviously the first contingency had not arisen. There is no finding recorded by the learned Sessions Judge or learned Magistrate that it is undesirable to try the case summarily.

10. Therefore, considering the stage at which the order was passed by the learned Magistrate, he was justified in rejecting the prayer made by the accused for adopting procedure of warrant case. Therefore, the impugned order will have to be quashed and set aside. It is, however, made clear that if a case in that behalf is made out, it will be open for the learned Magistrate to pass appropriate order at appropriate stage in terms of second proviso to sub-section (1) of Section 143 of the said Act.

11. Hence, I pass the following order:

(i) Subject to what is observed above, impugned Judgment and Order dated 22nd March, 2006, is quashed and set aside and Criminal Revision Application No.528/2005 will stand dismissed.

(ii) Writ Petition is allowed in above terms with no order as to costs.

Petition allowed.