2010 (8) TMI 1127 - HC - Indian Laws

Summary

Issues Involved:
1. Legality of the process issued by the trial court.
2. Validity of evidence recorded by a predecessor magistrate.
3. Compliance with procedural requirements u/s 200 and 313 of the Criminal Procedure Code.
4. Timeliness of the complaint under Section 138 of the Negotiable Instruments Act.
5. Necessity of referring the cheque to a handwriting expert.
6. Requirement of hearing the accused before sentencing.
7. Applicability of probation benefits.

Summary:

1. Legality of the Process Issued by the Trial Court:
The accused argued that the trial court issued process solely based on verification below the complaint, violating Section 200 of the Criminal Procedure Code. The court found that the Magistrate could take cognizance initially u/s 190 of the Criminal Procedure Code and that the subsequent recording of verbatim evidence of the complainant and witnesses complied with the requirements.

2. Validity of Evidence Recorded by a Predecessor Magistrate:
The accused contended that the provisions of Section 326 could not be availed in summary trials, and thus, the oral evidence recorded by the earlier Magistrate should be discarded. The appellate court held that the accused had no objection to proceeding with the matter based on the evidence already recorded, as per a purshis filed before the trial court. The court found no failure of justice due to this procedural aspect.

3. Compliance with Procedural Requirements u/s 200 and 313 of the Criminal Procedure Code:
The accused argued that material particulars were not put before them u/s 313 of the Criminal Procedure Code. The court noted that the material details of the evidence were put before the accused in the form of separate questions, and the statement u/s 313 was recorded by the Magistrate. The court found that the accused had waived their right to further cross-examine witnesses and to lead any evidence in defense.

4. Timeliness of the Complaint under Section 138 of the Negotiable Instruments Act:
The accused raised the plea of limitation, arguing that the complaint was time-barred. The court held that the notice was returned as "unclaimed" on 05.11.1998, and the complaint filed on 15.12.1998 was within the permissible period. The court relied on the endorsement of "unclaimed" to determine the timeliness of the complaint.

5. Necessity of Referring the Cheque to a Handwriting Expert:
The accused contended that the cheque should have been referred to a handwriting expert. The court found that the accused had admitted his signature on the cheque in his further statement, making the opinion of a handwriting expert unnecessary.

6. Requirement of Hearing the Accused Before Sentencing:
The accused argued that they were not heard before the order of sentence was passed. The court noted that the accused or their pleader had remained absent on the date fixed for sentencing, and as per Section 255 (2) of the Criminal Procedure Code, it was not necessary for the Magistrate to hear the accused before passing the order of sentence.

7. Applicability of Probation Benefits:
The accused claimed that the Magistrate had not recorded reasons for not granting probation, violating Section 361 of the Criminal Procedure Code. The court observed that the accused had created numerous hurdles and failed to produce any mitigating circumstances for granting probation, even at the time of the appeal hearing.

Conclusion:
The court upheld the conviction of the accused u/s 138 of the Negotiable Instruments Act but found the sentence to be inadequate. The matter was remanded to the Magistrate for expeditiously making an appropriate order regarding sentence and compensation, within three months, after giving the parties a reasonable opportunity to be heard. The impugned final order of sentence was set aside, and the rule was made absolute with no order as to costs.