Cri. M. C. No. 3846 of 2012. Case: Indira Gandhi Memorial General Marketing Society Ltd Vs Ms. Abraham Varghese and Company. High Court of Kerala (India)
| Case Number | Cri. M. C. No. 3846 of 2012 |
| Counsel | For Petitioner: M. J. Thomas, Adv. and For Respondents: Nirmal V. Nair, Manu Tom Thomas, Reji Joseph, Public Prosecutor |
| Judges | P. D. Rajan, J. |
| Issue | Negotiable Instruments Act (26 of 1881) - Sections 138, 143; Criminal Procedure Code (2 of 1974) - Section 326(3) |
| Citation | 2014 CriLJ 3300 |
| Judgement Date | March 19, 2014 |
| Court | High Court of Kerala (India) |
Judgment:
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This is a petition filed under Section 482 of the Code of Criminal Procedure to quash Annexure-A4 and A8 in ST. No. 216/2009 and ST. No. 129/2010 of the Judicial First Class Magistrate Court-IV, Kottayam, (ST. No. 216/2009 is the leading case) invoking inherent jurisdiction. Both cases were filed for offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the 'Act'). The allegation is that the accused purchased rubber from the complainant and in discharge of that liability a cheque for Rs. 3,21,375/- was given and when it was presented for encashment it was dishonoured due to insufficiency of fund. Even after on issuing statutory notice there was no payment. In the above circumstance, the above cases were filed in the trial court. Annexure-A1 and A2 are the complaint in both the cases.
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Both cases were posted for evidence on 14.8.2012 and in view of the decision reported in Nitinbhai Saevatilal Shah v. Manubhai Manjibhai Panchal [2011 (3) KHC 840 (SC)]: (AIR 2011 SC 3076) the accused requested for a de novo trial on the ground that the complaints were filed before different courts and subsequently transferred to Judicial First Class Magistrate Court-IV, Kottayam and a joint trial was allowed in ST. No. 216 of 2009. The petitioner's counsel resisted the same, but in view of the above decision the trial court ordered a de novo trial. Petitioner filed an application to allow him to adduce further evidence and requested to cancel the de novo trial. In the above circumstance the complainant approached this Court to quash the order of de novo trial ordered on 14.8.2012 with this petition.
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Section 326 of Cr. P. C., it reads as follows:-
Conviction or commitment on evidence partly recorded by one Magistrate and partly by another:-(1) Whenever any Judge or Magistrate after having heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein and is succeeded by another Judge or Magistrate who has and who exercises such jurisdiction, the Judge or Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself:
Provided that if the succeeding Judge or Magistrate is of opinion that further examination of any of the witness whose evidence has already been recorded is necessary in the interests of justice, he may re-summon any such witness, and after such further examination, cross-examination and re-examination, if any, as he may permit, the witness shall be discharged.
(2) When a case is transferred under the provisions of this Code from one Judge to another Judge or from one Magistrate to another Magistrate, the former shall be deemed to cease to exercise jurisdiction therein, and to be succeeded by the latter, within the meaning of sub-section (1).
(3) Nothing in this section applies to summary trials or to cases in which proceedings have been stayed under section 322 or in which proceedings have been submitted to a superior Magistrate under section 325.
The learned counsel appearing for the petitioner contended that the procedure for summons trial was followed in this case, in such circumstance it is the discretion of the learned Magistrate to start a de novo trial. No circumstances are explained in Annexure-A4 for ordering the de novo trial. But the learned counsel appearing for the respondent strongly resisted the contention and contended that according to Section 143 of the Act, all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate summarily and the provisions of Section 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials. The proviso also says that if any summary trial under such section is ordered, it is for the Magistrate to consider and pass orders for a term not exceeding one year and an amount of fine exceeding five thousand rupees. Therefore, no necessity to interfere in Annexure-A4 and A8.
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Section 143 of the NI Act reads as follows:
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...
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