2022 (4) TMI 1152 - HC - Indian Laws

Dishonor of Cheque - applicability of maxim sublato fundamento cadit opus - violation of the mandate of Section 143 of the Negotiable Instruments Act - HELD THAT - The incorporation of Section 143 Negotiable Instruments Act was within an object of speedy disposal of cases resulting in recommendation of simplified procedure of trial of the offence under the Negotiable Instruments Act i.e. summary trial. The incorporation of Section 143 to 147 was aimed at early disposal of cases in simplified procedure and more particularly to do away the stages and process in a regular criminal trial that normally cause inordinate delay in its conclusion and to make a trial procedure as expeditious and possible without in any way compromising with the right of the accused for a fair trial. There is no straitjacket formula classifying a case to be tried as a summary trial or as a summons case in offences falling under the Negotiable Instruments Act. The law provided therefore is so flexible that it is up to the prudent judicial mind to try the case summarily or otherwise. Examining the case from another perspective, Section 461 CrPC deals with irregularities which vitiate proceedings. The order of the Magistrate to try the case as a summons case is not an irregularity that would vitiate the proceedings. Hence, even though the proviso to Section 143 contemplates affording of hearing to the parties before directing a case to be tried as summons case, however, non-compliance thereof does not vitiate the proceedings. Apparently the said proviso contemplates a situation where the order to try the case as summons case is passed by the Magistrate after commencement of the trial and where certain witnesses have been recorded - The delay on the part of the petitioner in approaching the Court has not been satisfactorily explained. Besides, apart from the apprehension that petitioner is likely to be sentenced for an imprisonment beyond one year, the same cannot be said to be a prejudice caused to an accused. The said discretion is yet to be exercised by judicial prudence and is not a judgment as regards conclusion of guilt of an accused. It does not thus amount to determination of any right of an individual or to have occasioned a prejudice to him. A prejudice has to be established and an apprehension of higher sentence is not a prejudice since sentencing or conviction are to be awarded after following the procedure prescribed in law and after affording opportunity of hearing to the respective parties. The inherent power vested in a High Court under Section 482 CrPC are to be exercised to prevent the abuse of the process of law and to secure the ends of justice. Such a power is to be exercised sparingly, with circumspection and in the rarest of rare cases. The very fact that statement under Section 313 CrPC had been recorded in the month of December 2015 would be sufficient to dismiss the present petition. It would rather be expedient that the trial in question is concluded at the earliest. The instant petition is accordingly dismissed being without any merit and being an attempt to delay the proceedings at a highly belated stage when the trial was at its fag end and statement under Section 313 CrPC had already been recorded - Petition dismissed.

Issues Involved:
1. Quashing of proceedings under Section 138 of the Negotiable Instruments Act.
2. Premature order by Trial Court to conduct the case as a summons case.
3. Non-compliance with the mandate of Section 143 of the Negotiable Instruments Act.
4. Delay in filing the petition and its implications.
5. Applicability of the legal maxim "sublato fundamento cadit opus".
6. Prejudice caused by not affording an opportunity of hearing before treating the case as a summons case.

Issue-wise Detailed Analysis:

1. Quashing of proceedings under Section 138 of the Negotiable Instruments Act:
The petitioner sought to quash the proceedings in Criminal Complaint No.4280 dated 23.08.2012 under Section 138 of the Negotiable Instruments Act, 1881. The complaint was filed by the respondent alleging that the petitioner issued a cheque for ?1,29,74,692, which was dishonored due to "funds insufficient" and "drawers signature differ". The petitioner was summoned to face trial, and the Trial Court decided to try the case as a summons case due to the substantial amount involved.

2. Premature order by Trial Court to conduct the case as a summons case:
The petitioner argued that the Trial Court's order to try the case as a summons case was premature and issued before the commencement of the trial. The petitioner relied on the judgment in J.V. Baharuni & Another Vs. State of Gujarat & Anr, which states that the decision to try the case as a summons case should be made during the course of the trial, not before it begins.

3. Non-compliance with the mandate of Section 143 of the Negotiable Instruments Act:
The petitioner contended that the Trial Court's order conflicted with Section 143 of the Negotiable Instruments Act, which mandates summary trials for offences under the Act. The petitioner argued that the Trial Court failed to follow the procedure of hearing the parties before deciding to try the case as a summons case, as required by the second proviso to Section 143(1).

4. Delay in filing the petition and its implications:
The respondent opposed the petition, highlighting that it was filed after a delay of two and a half years from the Trial Court's order. The respondent noted that the trial had progressed significantly, with the complainant's evidence closed in November 2014 and the petitioner's statement under Section 313 CrPC recorded in December 2015. The delay in filing the petition was deemed inexcusable and suggested an abuse of the process of law.

5. Applicability of the legal maxim "sublato fundamento cadit opus":
The petitioner invoked the legal maxim "sublato fundamento cadit opus," arguing that if the foundation of the Trial Court's order was removed, the entire structure of the proceedings would collapse. However, the court found this maxim inapplicable, as the initial action (the order to try the case as a summons case) was not in conflict with the law, and non-compliance with the directive to hear the parties did not vitiate the proceedings.

6. Prejudice caused by not affording an opportunity of hearing before treating the case as a summons case:
The petitioner claimed prejudice due to the lack of an opportunity to be heard before the case was treated as a summons case, potentially leading to a sentence exceeding one year. However, the court held that mere apprehension of a higher sentence did not constitute prejudice. The discretion to impose a higher sentence would be exercised by the judicial mind after following due process.

Conclusion:
The court dismissed the petition, finding no merit in the arguments presented by the petitioner. The court emphasized that the inherent power under Section 482 CrPC should be exercised sparingly and noted the advanced stage of the trial, with the statement under Section 313 CrPC already recorded. The court directed the Trial Court to ensure an expeditious decision in the main case.

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