2014 ALL MR (Cri) 4513
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
P.D. KODE, J.
Roopchand Daryanomal Jani Vs. Sanjay Tarachand Hardwani & Anr.
Criminal Application (APL) No.614 of 2012
30th July, 2013
Petitioner Counsel: Mr. D.N. DANI
Respondent Counsel: Mr. J.M. GANDHI, Mr. D.B. PATEL
Negotiable Instruments Act (1881), Ss.143, 138 - De novo trial - Order by successor Magistrate - On basis that predecessor Magistrate was conducting a summary trial and not summons trial - Legality - Predecessor Magistrate though proceeded as summons trial, he did not pass an order u/s.143 intimating the manner of trial - However, both the parties had well notice of fact that procedure for summons trial has been adopted - De novo trial for not passing order u/s.143 would be a hyper-technical view - De novo trial would result in prolonging proceeding and forcing parties to once again lead evidence and thereby taxing witness - Hence, order of de novo trial quashed with direction to Trial Court to proceed with case from stage at which impugned order was passed. 2011 ALL SCR 2130 Ref. to. (Paras 9, 10)
2. The applicant-complainant in Summary Case No. 4271/2008, pending on the file of 23rd J.M.F.C. & Spl Court for offences under Section 138 N.I. Act, Nagpur prays for quashing the order dated 16.12.2011 ordering de novo trial in said case. The said case was initiated upon the complaint made by the applicant on the accusation of non applicant no.1 having committed an offence under section 138 of the Negotiable Instruments Act. Considering the nature of controversy involved, it is not necessary to state in detail subject matter of said case, except that said accusation was founded on the count of failure of non applicant no.1 to pay the demanded amount mentioned in the demand notice served upon him after the cheque given by him for the liability was dishonoured and returned by the banker.
3. Mr. Dani, learned counsel for the applicant, submitted that in said case, right from the commencement, the case was not proceeded in the summary manner. It is submitted that the officer presiding over said Court after explaining the accusation to the non applicant no.1 and the non applicant no.1 pleading not guilty, recorded the evidence of the first witness by taking on record his affidavit of the evidence and recording in detail the cross examination made on behalf of non applicant. It is further submitted that, thereafter, said Presiding Officer was transferred and his successor in the similar manner continued with the case by recording evidence in similar manner of two more witnesses, examined on behalf of the applicant. Mr. Dani further submitted that thereafter even said Presiding Officer was also changed and when the matter was fixed for adducing the evidence on behalf of the non applicant, the application was made by non applicant no.1 for referring disputed document to the handwriting expert. It is, thus, contention of the Mr. Dani that said case has never proceeded by following the procedure meant for summary trial and was conducted by following procedure meant for summons trial.
4. Mr. Dani, learned counsel for the applicant, further submitted that thereafter the third Presiding Officer seized with the said case, passed the order, which is under challenge in this petition. It is submitted that by placing reliance upon the decision in the case of Nitinbhai Saevatilal Shah & Anr. ..vs.. Manubhai Manjibhai Panchal & anr.; AIR 2011 Supreme Court 3076 : [2011 ALL SCR 2130], the impugned order was passed. It is submitted that since the case in question was not tried as summary case, the trial court completely misconstrued the ratio of decision in Nitinbhai's case, [2011 ALL SCR 2130] (supra) and erred in ordering de novo trial. It is submitted that since the case has not been tried as a summary case, the order impugned be quashed and set aside. It is submitted that passing of such an order on the contrary would result in causing further delay as the applicant will have to once again adduce evidence. Mr. Dani, learned counsel, further submitted that since the case was tried as summons case and as such evidence recorded in the case is in entirety available to the present Presiding Officer and so also the non applicants having not objected for proceeding in the case in such manner, hardly any prejudice would be caused to them, if the case is proceeded in such a manner as visualized in the decision relied on.
5. Mr. Gandhi, learned counsel for the non applicant no.1, fairly submitted that position of the events occurred in the case has been correctly submitted by the learned counsel for the applicant. Mr. Gandhi was candid enough to say that non applicant no.1 was defending the case with understanding that it is tried as summons case and not in summary way. Mr. Gandhi submitted that in the circumstances, he is leaving the matter to the discretion of the court to pass appropriate orders.
6. In the premise aforesaid, it is crystal clear that the case in which the order of de novo trial, relying upon decision in the case of Nitinbhai, [2011 ALL SCR 2130] (supra) was passed, has never proceeded in summary manner and even non applicant no.1 was well aware of the said fact. The said submission also reveals that evidence in said case is not recorded in summary manner but it has been recorded in the manner as contemplated for summons cases and as such said record is available for the learned Judge who is presently seized with the matter.
7. The perusal of the decision in the case of Nitinbhai, [2011 ALL SCR 2130] (supra) reveals two aspects upon which said decision is based. One about full evidence being not available to the succeeding Magistrate in the event of case being tried in summary way and thus inviting risk of such case getting decided by subsequent Presiding Officer without having advantage of hearing full evidence before him. Such a contingency has not arisen in the present case.
8. Now, considering the other aspect i.e. powers of the learned Magistrate trying summary cases, reference to the provisions of Section 143 in term reveals that for the reasons recorded, the Magistrate is empowered to proceed with the case as summons case. In the said context, however, Mr. Dani fairly submitted that no such order was passed.
9. Now, even considering said provision in proper perspective, it is clear that the same is an enabling provision for giving both the parties notice regarding the manner in which the case would be proceeded. In the present case, both the parties having well notice of the fact of the applicant having prosecuted by following the procedure meant for the summons case and so also non applicant no.2 having defended it, non passing of such order cannot be said to be vitiating the proceeding. As a matter of fact, taking such a hyper-technical view would not serve the ends of justice but on the contrary, the same would result in prolonging proceeding further and forcing the parties to once again lead the evidence and thereby taxing the witness. It can be further added that the provisions of the procedural law, are made to ensure that both the parties receive a fair opportunity at trial. Similarly, the provisions made in the Negotiable Instruments Act for trying the cases for an offence under the Negotiable Instruments Act in summary way, is mainly for serving the benevolent object of disposing the cases for offences under the Act at the earliest. Having regard to the same, taking contrary view than the expressed hereinabove would be, on the contrary, defeating the spirit and object for which the said provisions are made. At any rate, fairness at a criminal trial being soul of the proceeding and setting aside and quashing the order impugned is unlikely to affect it and on the contrary sustaining it is likely to avoid causing of further prejudice and delay in the matter, it appears proper to pass such order by exercising powers under Section 482 of the Cr. P. C. for serving the ends of justice.
10. Resultantly, the part of the order impugned, ordering de novo trial so also further proceedings, if any thereafter stands quashed, with a direction to the trial court to proceed with the case from the stage at which order impugned was passed, in accordance with laws.