Criminal Revision Application No. 244 of 2013 with 56 of 2014. Case: Abdul Khabeer s/o. Muniroddin Siddiqui Vs Mohd. Osmanoddin s/o. Mohd. Fazluddin Qureshi. Bombay High Court

Case Number:Criminal Revision Application No. 244 of 2013 with 56 of 2014
Party Name:Abdul Khabeer s/o. Muniroddin Siddiqui Vs Mohd. Osmanoddin s/o. Mohd. Fazluddin Qureshi
Counsel:For Applicant: P. S. Paranjape, Adv. and For Respondents: G. R. Syed, S. R. Palnitkar, APP, Advs.
Judges:T. V. Nalawade, J.
Issue:Criminal Procedure Code (2 of 1974) - Sections 260, 262, 461, 465; Negotiable Instruments Act (26 of 1881) - Sections 138, 143; Indian Penal Code (45 of 1860) - Section 65
Citation:2015 CriLJ 1281
Judgement Date:November 10, 2014
Court:Bombay High Court
 
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Judgment:

  1. Both the revisions are filed against the judgment and order of Criminal Appeal No. 24/2011, which was pending in the Court of Sessions Judge, Parbhani. The petitioner from Criminal Revision Application No. 244/2013 was accused in SCC No. 772/2007, which was pending in the Court of Judicial Magistrate, First Class (hereinafter referred to as 'J.M.F.C.') and the case was filed for offence punishable under section 138 of Negotiable Instruments Act (hereinafter referred to as 'the Act') by the petitioner from Criminal Revision Application No. 56/2014. The accused is convicted and sentenced by the learned J.M.F.C. and he is sentenced to suffer imprisonment for the period of two months. He was also directed to pay compensation of Rs. 3,00,000/- (Rupees three lakh) and fine of Rs. 2,000 (Rupees two thousand). This decision is modified by the learned Sessions Judge and the substantive sentence is reduced to the term, till the rising of the Court and compensation is increased to make it Rs. 3,50,000/- (Rupees three lakh fifty thousand). The fine order is also set aside. This was done in view of the submission made by the learned counsel for the complainant in that regard. In the present proceeding, both the sides are heard. This Court has perused the original papers.

  2. The decision is challenged mainly on the ground that the trial was not conducted denovo, when the evidence was recorded by the predecessor of the J.M.F.C. who decided the case. It was submitted that the case was tried as summons case, but in summary manner and so, the J.M.F.C., who decided the case, could not have decided the matter on the basis of evidence recorded by his predecessor. It was submitted that in view of the provision of section 143 of the Act, it needs to be presumed that the case was tried in summary manner. With this submissions, it was further submitted that the conviction cannot sustain in law and the trial is vitiated. Though other contentions are made in the petition, only the aforesaid point was argued in the present proceeding.

  3. On the other hand, the learned counsel for the original complainant submitted that the learned Sessions Judge has committed mistake in not giving sentence in default of making payment of compensation amount and due to that, the claimant is facing problems in enforcing the order. It was also submitted that nothing is said about the compensation amount of Rs. 50,000/- which remains after making of the payment of Rs. 3,00,000/- to the complainant and in view of the provisions, he is entitled to get all the amount of compensation which the accused needs to deposit as per the order made by the learned Sessions Case.

  4. In view of the nature of aforesaid challenge to the decision of the Trial Court and the learned Sessions Judge, the relevant provisions of Criminal Procedure Code (hereinafter referred to as 'the Code') and the Act need to be seen first.

  5. The relevant portion of the provision of section 143 (1) of the Act runs as under:-

    "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:

    "The aforesaid provision has three parts as under:-

    (i) Notwithstanding anything contained in the Code as amended in 1974, the provisions of the Special Act will apply.

    (ii) All the offences under this Chapter (Chapter XVII) of the Act shall be tried by J.M.F.C. or by Metropolitan Magistrate (hereinafter referred to as 'M.M.') and

    (iii) The provisions of sections 262 to 265 of the Code (both inclusive) shall, as far as may be, apply to such trials.

    The bare reading of this provision shows that some change is made in the procedure laid down in the Court by the special provisions of the Act. To ascertain what is the exact change, the provisions of sections 262, 265 of the Code need to be seen. Only after the comparison of these provisions, the object behind the provisions of the Act can be ascertained. Similarly, the other relevant provisions of the Code with regard to the class to which such cases belong need to be seen.

  6. In section 2 (w) of the Code, the definition of 'summons case' is given and in section 2 (x) of the Code, the definition of 'warrant case' is given. They run as under:-

    "(w) "summons-case" means a case relating to an offence, and not being a warrant-case;

    "(x) "warrant-case" means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years;"

    Thus, when the substantive sentence that can be imposed for offence exceeds two years, the case falls under the category of 'warrant case' and if the sentence is up to two years of imprisonment, the case falls under the category of 'summons case'.

  7. Section 4 of the Code provides that all the offences punishable under Indian Penal Code (hereinafter referred to as the 'I.P.C.') and also under other laws are to be tried as per the procedure laid down in the Code. However, it also makes it clear that when Special Act like the present one has made some special provisions which are inconsistent with the general provisions of the Code, the special provisions regarding the procedure need to be followed.

  8. The classification of cases as 'summons case' and 'warrant case' can be made applicable to both the cases filed for offences committed under the I.P.C. and also for the offences punishable under Special Act. In Schedule I, provided to the Code, the...

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