Sunday 9 March 2014

Procedure to followed in case for dishonour of cheque


“There   could   hardly   be   a   case   under   Section   138   of   the  
Negotiable   Instruments   Act  where   the   Magistrate   has   strictly  
adopted procedure applicable to summary cases.  It is observed  
that in almost all the cases, the evidence is recorded in detail  
and   in   some   cases   the   cross­ examination   goes   on   for   days  
together.  Therefore, the successor in office is not supposed to go  
by   the   label   applied   to   the   case.     He   is   under   obligation   to  
examine the record and proceedings and see that if the evidence  
is recorded by adopting the procedure applicable to summons  
cases there is no repetition of recording of evidence so that the  
valuable time of the Court is saved.”IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
  

    

Ganpatrao s/o Mahadeorao Kapse,
v
CRIMINAL APPLICATION (APL) NO.175 OF 2012
Rajiv s/o Bhupendranath Sidhra,


                             CORAM : M.L. TAHALIYANI, J.
                              DATED   : 10   FEBRUARY, 2014.

Citation; 2014 (1) Crimes 514 Bom


    The   question,   which   has   arisen   for   determination   in   the 
present application, is as to whether the change of Magistrate by itself will 
entail de novo trial in a case which is labelled as summary case.  In ordinary 
ig
course, if one goes by the provisions of law, the answer will be ‘yes’.  But this 
issue has been discussed at length in various judgments and particularly in 
the judgment of this Court in Criminal Application (APL) No.671 of 2011.  It 
is   pertinent   to   note   that   this   Court   has   taken   into   consideration   the 
observations   of   the   Hon'ble   Supreme   Court   in   the   case   of  Nitinbhai 
Saevatilal Shah Vs. Manubhai Manjibhai Panchal  reported at  AIR 2011  
SC 3076.    After having gone through the provisions of law and after having 
followed the crux of the judgment in Nitinbhai's case, this Court had come to 
the conclusion that if a case is labelled as summary case but is tried as a 
summons case, there will be no de novo trial automatically on change of the 
Presiding Officer.  This Court had in detail discussed the manner in which the 
evidence  in summary  case   is  recorded  and   also  the  manner   in which  the 
evidence in summons case is recorded.  The Court had also distinguished the 
provisions regulating the summary trials and summons trials.
4.
In view of the judgment of this Court in Criminal Application 
(APL) No.671 of 2011, in fact there is no scope to give any detail order in the 

present application and the said judgment will have to be followed.  What is 
further  noted  is that in a  recent judgment  in  a  case   of  Mehsana  Nagrik 
Sahkari Bank Ltd. Vs. Shreeji Cab Co. and Ors. reported at 2013(4) Crime  
351 (SC), the Hon'ble Supreme Court has also taken the same view.   The 
observations made by the Hon'ble Supreme Court can be found at para Nos.

4, 5, 6 and 7 as under :­
“4.             The appellant Bank had filed a complaint before the  
competent   Court   under   Section   138   of   the   Negotiable  
Instruments  Act, 1881 against respondent Nos.1 to 3.   As the  
respondents wanted one additional party to be added to that  
complaint, they filed an application under Section 319 of the  
Code of Criminal Procedure before the Additional Chief Judicial  
Magistrate, Mehsana.  That application having been rejected, a  
Criminal   revision   application   was   filed   before   the   Principal  
Sessions   Judge,   Mehsana.   That   Judge   confirmed   the   order  
passed by the Trial Court.  Thereafter,  the respondents filed an  
application   before   the   High   Court   for   quashing   and   setting  
aside the orders passed by the criminal courts. The High Court  
proceeded on an entirely different premise and disposed of the  
application  filed  by the respondents noting that the evidence in  
the   matter   had   come   to   be   recorded   by   Additional   Chief  
Judicial  Magistrate,  Mehsana.   The proceeding under Section  
138   of   the   Negotiable   Instruments   Act   is   a   summary   trial  
proceeding.  Hence, the  concerned  successor  Magistrate had to  
record the evidence de novo and any order passed on the  basis  
of the evidence recorded by his predecessor was not valid.  The  
High Court relied upon the above judgment in support thereof  
and passed  an order directing a fresh recording of  evidence.  It  
is   against   this   order   of   the   High   Court   that   this   appeal,   by  
special leave, has been filed.
5.             Mr. Huzefa Ahmadi, learned senior counsel appearing  
for  the appellant Bank pointed out that the law laid down by 
this Court in the above authority is that when a proceeding is  
conducted  as  a  summary trial, and when one Magistrate  has  
partly heard the case and is succeeded by another Magistrate,  

that second Magistrate has to re­hear the whole case afresh and  
he cannot start from the stage the first Magistrate left it. There  
was no question of the High Court asking the entire matter to  
be looked into by another Magistrate de novo, in the present  
case because, in fact, the evidence had not been recorded in a 
summary manner, but it was recorded in full. Mr.  Sanjanwala,  
learned   counsel   appearing   for   the   respondents,   on   the   other  
hand, submits that the law laid down in Nitinbhai  Saevatilal  
Shah & Anr. Vs. Manubhai Manjibhai Panchal & Anr., (supra) 
be followed.
6.    We have perused the notes of evidence which are produced  
on record.  They clearly show that the evidence in this case was  
recorded in full and not in summary manner.  That being so, we  
cannot but accept the submission of Mr. Ahmadi.  
7.       In the facts and circumstances of the case, we allow this  
appeal, set aside the order passed by the High Court and direct  
the Additional Chief Judicial Magistrate, Mehsana, to proceed  
hereafter from the stage where it is pending now.  As far as the  
application of the respondents for adding some other person to 
the complaint is concerned, were are not inclined to accept that.  
It is for the complainant to decide as to against which party it  
wants to proceed.  That application will stand rejected.”
5.
It is thus clear that if the evidence is recorded in detail in a 
case,  which   is  registered   as  summary  case,   the   change   of   Judicial   Officer 
during   the   pendency   of   case   would  not   by  itself  attract  the   provisions  of 
Section   326(1)   of   the   Criminal   Procedure   Code.     The   Court   has   to 
understand the purpose of the said provision and purposive interpretation 
has to be given to the provision of Section 326(1) of the Criminal Procedure 
Code.   The observations made by this Court in Criminal Application (APL) 
No.671 of 2011 decided on 2nd May, 2012 can be reproduced here as under :­


As such, in view of the observations made by this Court and the 
6.

“There   could   hardly   be   a   case   under   Section   138   of   the  
Negotiable   Instruments   Act  where   the   Magistrate   has   strictly  
adopted procedure applicable to summary cases.  It is observed  
that in almost all the cases, the evidence is recorded in detail  
and   in   some   cases   the   cross­examination   goes   on   for   days  
together.  Therefore, the successor in office is not supposed to go  
by   the   label   applied   to   the   case.     He   is   under   obligation   to  
examine the record and proceedings and see that if the evidence  
is recorded by adopting the procedure applicable to summons  
cases there is no repetition of recording of evidence so that the  
valuable time of the Court is saved.”
Hon'ble   Supreme   Court   in   the   cases   cited   Supra,   the   present   application 
succeeds.   The order passed by the learned Judicial Magistrate First Class, 
Nagpur below Exhibit 77 in Summary Criminal Case No.3610/2006 is set 
aside.  The Magistrate shall continue with the trial on the basis of evidence 
already recorded by his predecessor. 
7.
The Registrar (Judicial) of this Court is directed to forward one 
copy   each   of   the   present   judgment   as   well   as   the   judgment   passed   in 
Criminal Application (APL) No.671 of 2011 to all the Session Judges within 
the jurisdiction of this Court, who shall circulate copies thereof amongst all 
the judicial officers working under them.
      
       JUDGE.

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