When court should not permit de novo trial in dishonour of cheque case?

Criminal - De novo Trial - Section 138 of Negotiable Instruments Act, 1882 and Section 326 (3) of Criminal Procedure Code ,1973 (CrPC) - Petitioners were convicted for dishonour of cheque by Trial court and session court - Present petition filed for quashing of proceedings and directing de novo trial - Whether proceedings should be quashed or de novo trial should be ordered - Held, Petitioner had examined himself, his witnesses including bank witnesses - Details of evidence demonstrated that statement of Petitioner was recorded - Petitioners had taken matter to several Courts inspite of it being time bound matter - Trial court had evaluated all aspects and rejected application of denovo trial - Evidence was recorded by courts below word by word not in form of notes or substance Disposal of case by courts below would not in any way vitiate trial - No need for quashing proceedings or directing de novo trial - Petitions dismissed.

BOMBAY HIGH COURT

Shyambahadur Purshottam Sharma and Another Vs. Sudhakar Narshu Poojary and Another

Judge : K.U. CHANDIWAL

Decided On : Aug-23-2013

Citation; 2014(2) MHLJ 806 BOM

2. These group of matters are heard together as a common question for denovo trial in proceedings under Section 138 of Negotiable Instruments Act, owing to transfer of one Judge recording earlier evidence, is to be addressed.

3. In Writ Petition nos.3739 of 2011, 3740 of 2011, 3741 of 2011 and 3742 of 2011, apart from afore referred legal point, Mr.Mundargi has argued on facts to show, how the order of learned Judge of conviction, confirmed in appeal calls for interference.

4. In the said matters, the petitioner - Shyambahadur faced prosecution vide C.C.No.6060/SS/2006 initiated by respondent -Sudhakar Poojary and also prosecution vide C.C.No.6059/SS/2006 initiated by respondent -Bhupen Gala. After recording conviction, the matter was carried by both, the petitioner Shyambahadur and respondent Bhupen Gala, before Additional Sessions Judge, where on 6th September,2011 the learned Additional Sessions Judge dismissed respective appeals and allowed the respective revisions of original complainant by modifying the sentence. The amount of compensation was enhanced. In C.C.No.6059/SS/2006, the cheque amount was Rs.1,38,000/-, compensation was enhanced to Rs.2,76,000/- In C.C.No.6060/SS/2006, the cheque amount was Rs.1,24,000/- the compensation was enhanced to Rs.2,48,000/-.

5. Mr.Niranjan Mundargi, learned Counsel, says that petitioner in both the matters is a barber. He had no reason and occasion to receive amount in the sum of Rs.1,24,000/- or Rs.1,38,000/- on 25.10.2005 from two persons. He says, the account was closed in the year 2000. The account was joint with his brother. His brother had disputes with one Mr.Kenia. Consequently, the cheques are misused. The statutory notice dated 19.5.2006 received by the petitioner was replied declining acquiescence and making allegations against Shri.Kenia. Shri.Kenia has, without any reason replied it and disputed the contents of the notice. According to the learned Counsel, both the Courts have failed to evaluate the evidence. He accepts, the bank witness did not venture to disprove the signature and other details of bank account held by the petitioner, as due to flood entire record was washed away. Learned Counsel repeats that there was no monetary transaction.

6. On evaluation of evidence and findings recorded by both the Courts, doubtful situation created by the learned Counsel in respect of claim of respective complainant was re-assessed. There is no controversy about the statutory notice having been served upon the petitioner - Shyambahadur. It is pertinent that the cheques in questioned were drawn on joint account maintained by the petitioner and his brother. If the cheques were misused, as the petitioner asserts, there was no inhibition for him to take criminal action. The evidence of D.W.1 and D.W.2 in respective proceedings traveled to a dispute of the petitioner's brother with Amit Kenia in which cause of the complainant, was also disputed. Such evidence could not have been appreciated and rightly, as there was evidence against the petitioner of issuing cheques from his account which account was already closed by him. The controversy of the complainant concerned with Ram Mahal Hotel belonging to Amit Kenia will not delve case of the complainant. The accused-petitioner did not rebut the presumption as was expected under Section 118 and 139 of Negotiable Instruments Act. It is well recognised legal position in terms of Section 139 of Negotiable Instruments Act that when an accused has to rebut the presumption, the standard to prove for doing so is by a preponderance of probability. Therefore, when the accused is able to establish probability which creates doubt about existence of legal enforceable debt or liability, the complaint could be dismissed. If the accused as drawer of the cheque neither raised probable defence nor able to contest the presumption of legally enforceable liability has to face statutory presumption under Section 139 of Negotiable Instruments Act. The challenge to the signature on the cheques, however, did not materialize as there was no examination by any expert to the signature on the disputed cheques by comparison with admitted signature. Bank witness also did not support defence. Hence, I hold that the findings of conviction recorded against the writ petitioner do not call for interference, on facts. The law point referred by the learned Counsel emerging from the Judgment of “Nitinbhai Saevatilal Shah and Anr. Vs. Manubhai Manjibhai Panchal and Anr. (AIR 2011 SC 3076)” will be discussed at a later stage.

7. Criminal application nos.23 of 2013 and 24 of 2013 are preferred by original accused. The matter has been expedited by the High Court by its order dated 8.2.2010 and 11.9.2010. Cross examination of complaints' is over. Even statement under Section 313 of Cr.P.C. was running over 28 pages. Evidence of accused also completed. Two defence witnesses are examined. D.W.2 put in evidence in 12 pages running went on for seven months. Evidence of D.W.3 is partly recorded. An application under Section 326(3) of Cr.P.C. was filed by the accused applicant, however, it was rejected by the learned Judge on 11.12.2012. Challenge to the same in Sessions Court was rejected on 2.1.2013. Hence, the applications.

8. Mr.Nagi, learned Counsel for writ petitioner says, the judgment in the matter of “Nitinbhai” referred to above, being dated 1.9.2011, it was imperative for the petitioners as accused to challenge the order of conviction as there should have been denovo trial in tune with the Hon'ble Supreme Court's judgment. He says, subsequent judgment of either the Gujrat High Court, Punjab-Haryana High Court or the learned Single Judge of this High Court will be of no consequence as effect of Nitinbhai's case will be paramount. He says, as the trial was conducted in the manner different from prescribed by the Code, the trial was bad and no question of curing an irregularity arises, but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularities occurs in the course of such conduct, that irregularities can be cured under Section 537 of Old Code. He has placed reliance for such purpose to paragraph 15 of the Judgment in the case “Payare Lal Vs. State of Punjab and Haryana (1961(0) AIJEL-SC 20926”.

He repeats, the matter of “Nitinbhai” having still in-force, sealing fate of the original complainant in the respective matter, the prosecution and conviction calls for interference.

9. The contentions raised by Mr.Nagi, explained the legal position for which there cannot be contest, however, two judgments of Hon'ble Supreme Court in the matter of “Nitinbhai” (supra) and later judgment dated July 12,2013 in “Mehsana Nagrik Sahakari Bank Ltd. Vs. Shreeji Cab Co. and Ors.”, indicate that they more or less lean to facts of particular case and impetus of Section 326(3) of Cr.P.C. was explained as the matter of “Nitinbhai” was a summary case and the evidence was brief. It is also legally established position indicated in the matter of “Amit Das vs. State of Bihar, (2000(0) AIJEL-SC 1569)” in paragraph 20. Paragraph 20 reads as under:-

“20. A decision not expressed, not accompanied by reasons and not proceeding on conscious consideration of an issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Art.141. That which has escaped in the Judgment is not ratio decidendi. This is the rule of sub-silentio, in the technical sense when a particular point of law was not consciously determined.”

10. It is well settled, “to imprint fact situation of one decided case upon another or observations made in the peculiar facts of a given case to any or every other case notwithstanding dissimilarity in effect and the distinctive features is legally impermissible. Each case, more particularly a criminal case depends on its own facts and a close similarity between one case and another is not enough to warrant like treatment because a significant detail may alter the entire aspect. In deciding such cases, one should avoid temptation to decide cases by matching the colour of one case against the colour of another. To decide, therefore, on which side, side of the line a case falls, the broad resemblance to another case is not decisive.” [Parasa Raja Manikyala Rao v. State of A.P. (AIR 2004 SC 132)].

11. Mr.Jatin Shah, learned Counsel says, if the writ petitioner pays total amount of Rs.5,00,000/- (Rupees five lakhs only) as compensation in both the matters, he has no objection to compound in terms of Section 147 of Negotiable Instruments Act. He confirms that the balance amount would be Rs.3,40,000/- (Rupees Three lakhs Forty thousand only), as Rs.1,60,000/- (Rupees One lakhs sixty thousand only) is deposited in Courts.

12. Mr.Rathod, learned Counsel submits that in the matter of “Nitinbhai”, there was exhaustive evidence before the Trial Court, still the Supreme Court did not approve continue conducting trial from that stage by successor judge.

13. Mr.Jatin Shah, learned Counsel for writ petitioner says, matter of “Nitinbhai” was a summary trial and no procedure of extensive evidence was contemplated. Section 143 of Negotiable Instruments Act takes away effect of Section 326(3) of Cr.P.C. He says, in the later judgment of the Hon'ble Supreme Court dated 12.7.2013 in Criminal Appeal no.968 – 971 of 2013, the Supreme Court even considered the case of “Nitinbhai” and has observed in paragraph 5 that evidence in the case was recorded in full and not in summary manner and that being so, the submission of accused were not accepted. The said matter was basically in respect of an application under Section 319 of Cr.P.C., however, High Court had gone to the area of de novo trial as the respondent had filed an application for quashing and setting aside the orders of criminal Courts. The High Court felt that the proceedings under Section 138 of Negotiable Instruments Act is a summary trial proceedings, hence, the concerned successor Magistrate had to record the evidence de novo and any order passed on the basis of evidence recorded by his predecessor was not valid. The High Court has relied on the judgment of “Nitinbhai” referred to above.

14. Mr.Jatin Shah has placed reliance to the judgment of this Court in the matter of “Indo Rama Synthetics Vs. HRK Infra and Oils and Ors., Dated 2.5.2012 in Criminal Application no.671 of 2011”; judgment of this Court in the matter “Dinesh Thacker Vs. State of Maharashtra, dated 12.12.2011 in Criminal Writ Petition no.3745 of 2011”; judgment of Rajasthan High Court in the matter “Tripti Vyas Vs. State of Rajasthan, dated 12.3.2013 (MANU/RH/0181/2013)”. He has cited three judgments of this Court prior to pronouncement of judgment of “Nitinbhai”.

15. The scope and object of the proceedings initiated under Negotiable Instruments Act was explained by Hon'ble Supreme Court in the matter of (i) “Laxmi Dye Chem Vs. State of Gujarat (2012(11) Scale 365)” and (ii) “Mandvi Co-op.Bank Ltd. Vs. Nimish Thakore (2010(2) SCC(Cri) 1)”.

16. There is no controversy that the mandatory language in which Section 326(3) of Cr.P.C. is couched, leaves no manner of doubt that when a case is tried as summary case, the Magistrate who succeeds the Magistrate who have recorded part or whole of the evidence cannot proceed on the evidence so recorded by his predecessor. The reasons are, the summary trials are only substance of evidence. The Court does not record 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 notes of evidence recorded by his predecessor.

17. In the case of “Nitinbhai” though Mr.Rathod, learned Counsel pointed out that the evidence was extensively recorded, it was not so. There was no defence evidence adduced by the accused. The evidence was specifically treated in summary case and in summary manner.

18. The Hon'ble Lordships of the Supreme Court in the Judgment in the case of “Mehsana Nagrik Sahkari Bank Ltd. Vs. Shreeji Cab Co. and Ors. Etc, (Criminal Appeal nos.968-971 of 2013, Judgment dated 12.7.2013)” were appraised of the judgment of “Nitinbhai” to which one of the Lordships was party, still on evaluation of facts of particular case as referred in paragraph 5 thereof, the evidence in case was recorded in full and not in a summary manner, did not accede to objection in terms of Section 326(3) of Cr.P.C.

19. In the matters at hand, if one goes by facts, it is explicit that the cases under Negotiable Instruments Act are tried by the learned Judge as summons cases. Full fledge evidence was recorded running into several pages. The applicant in Application no. 23 of 2013 successfully got the matter protracted for 13 years. Even his S.L.P. before Hon'ble Supreme Court was dismissed. Three times the matter was made time bound. One of the application was to recall the complainant that has also been rejected. Transfer applications were moved and rejected by this Court on 16.7.2010 with costs. The modus operandi is, to have benefit of Section 326(3) of Cr.P.C., to get the matter at P.H. stage transferred from one Court to another and then allow recording of evidence, and if conviction is recorded, reserve a right to challenge the same for want of de novo trial. Such practice and exercise by disgruntled elements is to be deprecated and condemned, and warrants stern action. There should not be a chicanery to the judicial system which in the matter of such caliber the accused facing trial are brazenly adopting. This has stated fortitude, this callus flippant approach has dragged life of litigation.

20. Section 143 of Negotiable Instruments Act provides that all offences under Chapter 12 of Negotiable Instruments Act shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of Sections 262 to 265 of Cr.P.C. shall apply to such trials. Section 143 further provides, 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. Curiously, Section 143 further provides, 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. It is, thus explicit, either at the commencement of the trial or in the course of trial, it is for the learned Magistrate to decide to proceed further with trial as summons trial. However, for that he has to hear the parties and record a specific order. In State of Maharashtra and particularly in Mumbai, transfers of Judicial Magistrate is a routine exercise and the matters for obvious reasons are dragged for years together. It would be advisable, for the learned Metropolitan Magistrate leaving the Court or resuming the Court to record an order below Exhibit 1 to try the case as summons trial and to lead evidence.

21. Mr.Rathod, learned Counsel for the applicant has placed reliance to the Judgment of this Court in the matter “Shivaji Sampat Jagtap Vs. Rajan Hiralal Arora and the State of Maharashtra, (2007 Cri.L.J. 122)”; to the judgment in the matter “Pratibha Pandurang Salvi and Ors. Vs. State of Maharashtra and Anr.,(2010 Cri.L.J. 730); and judgments from other High Courts, of the learned Single Judges.

22. The facts attended in the case at hand clearly indicate that trial Court did not try the matter as summary trial and when entire evidence was recorded as if it was not a summary trial, when the matter is at the stage of conclusion, prayer for de novo trial being sabotage to the legal position, could not be permitted. The Supreme Court in the matter of “Nitinbhai” did not declare the proceedings illegal but it observed, when the trial itself was made summary, and Magistrate recording evidence treating it as summary trial, then naturally successor Magistrate will not get benefit of demeanor of witness when the entire evidence is recorded in full fledge trial. However, in the instant case, these facts are patently absent.

23. The legislature intended to punish only those who are well aware that they have no amount in the bank and no balance to discharge liabilities which indeed amounts to cheating. In “Mandvi Co-op.Bank Ltd.” (Supra), in paragraph 16 the Hon'ble Supreme Court has observed that complaints under Section 138 of the Act came to be filed in such large numbers that it became impossible for the courts to handle them within a reasonable time and it also had a highly adverse effect on the court's normal work in ordinary criminal matters. A remedial measure was urgently required and the legislature took action by introducing further amendments in the Act by the Negotiable Instruments (Amendment and Miscellaneous Provision) Act,2002. The 2002 amendment inserted in the Act for the first time suggested sections 143 to 147. The observations in paragraphs 21 and 29 read as under:-

“21. It is, however, significant that the procedure of summary trials is adopted under section 143 subject to the qualification “as far as possible”, thus, leaving sufficient flexibility so as not to affect the quick flow of the trial process. Even while following the procedure of summary trials, the non-obstante clause and the expression “as far as possible” used in section 143 coupled with the non-obstante clause in Section 145 allows for the evidence of the complainant to be given on affidavit, that it, in the absence of the accused. This would have been impermissible (even in a summary trial under the Code of Criminal Procedure) in view of Section 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.

29. Once it is realized that sections 143 to 147 were designed especially to lay down a much simplified procedure for the trial of dishonoured cheque cases with the sole object that the trial of those cases should follow a course even swifter than a summary trial and once it is seen that even the special procedure failed to effectively and expeditiously handle the vast multitude of cases coming to the court, the claim of the accused that on being summoned under section 145(2), the complainant or any of his witnesses whose evidence is given on affidavit must be made to depose in examination-in-chief all over again plainly appears to be a demand for meaningless duplication, apparently aimed at delaying the trial.”

24. In summons trial cases exhaustive evidence is recorded. Section 263 of Cr.P.C. applies to summary trial explaining procedure to record the material. Thus, section 263 of Cr.P.C. illustrates,

(a) It should be serial number on the case;

(b) the date of the commission of the offence;

(c) the date of the report or complaint;

(d) the offence complained of and the offence (if any) proved, and in cases coming under clause (ii), clause (iii) or clause (iv) of sub-section (1) of section 260, the value of the property in respect of which the offence has been committed.

Section 264 of Cr.P.C. deals with judgment in the cases tried summarily, wherein it is informed that the Magistrate has to record substance of the evidence and a judgment containing a brief statement of the reasons for the finding. It is obvious, reading impact of Sections 263 and 264 of Cr.P.C., if the accused does not plead guilty it is only notes or substance of evidence that is to be recorded by learned Magistrate and judgment will be dealing with brief statement.

25. In the matter under challenge, as indicated herein before, it was not by way of notes of evidence but full fledge trial has taken place.

26. In the Writ petitions, the accused-petitioner had examined himself, his witnesses including bank witnesses. Two courts have evaluated the evidence.

27. In criminal application no.23 of 2013 and 24 of 2013, the details of such evidence and protraction are enumerated herein before which demonstrates, statement of accused was running 28 pages, evidence of the accused applicant was running 65 pages in chief and 22 pages in cross examination. The accused-applicant, has taken the matter to several Courts inspite of it being a time bound matter. Plea of Accused/Petitioner was recorded. The learned Judge has evaluated all theses aspects and rejected application under Section 326(3) of Cr.P.C. on 11.12.2012. It is obvious, in both matters Courts have tried following the procedure in summons case and not by summary trial. In the light of this situation, disposal of the case by successor Magistrate will not in any way vitiate the trial.

28. In the matter of “Nitinbhai”, Hon'ble Supreme Court did not inform, that offence under Section 138 of Negotiable Instruments Act can be tried only summarily. The case in the matter of “Nitinbhai” was a summary trial case as could be seen in paragraph (6) of the judgment and in paragraph 14 the Hon'ble Lordships considered it, since it was tried as summary case, and hence, the conviction was set aside. Again, in later case decided on 12.7.2013 (“Mehsana Nagrik Sahkari Bank Ltd.” case), Hon'ble Supreme Court considered Nitinbhai's case.

29. The evidence is recorded by the learned Magistrate word by word not in the form of notes or substance. To repeat, plea was also recorded, procedure contemplated under Section 263 and 264 of Cr.P.C. was not followed by Learned Magistrate. Thus, I find no reason to accede to the requests of the writ petitioner or the applicants for quashing the proceedings or directing de novo trial. The writ petitions fail on merits as the reasons for conviction are sound and on logical appreciation of evidence. The learned Magistrate has tried the complaint as summons case in full fledge manner. Hence, the Order:-

ORDER

(1) (i) Writ Petition no.3739 of 2011 to 3742 of 2011 dismissed. Conviction recorded against writ petitioner is confirmed. If the writ petitioner deposit balance amount of Rs.3,40,000/- in this Court upto 23^rd February,2014, the conviction in terms of Section 138 of Negotiable Instruments Act, shall be treated as compounded in terms of Section 147 of Negotiable Instruments Act.

(ii) Respondents are permitted to withdraw the deposited amount from this Court and also from Trial Court.

(2) (i) Criminal application no.23 of 2012 and 24 of 2012 dismissed. The learned Judge is requested to expedite the hearing as the matter is quite old of 2000.

(ii) The order is stayed upto 23rd September, 2013.

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