2015 (3) TMI 858 - SC - Indian Laws

Matter remanded back by high court for de novo trial - Summary Trial - Criminal proceedings under Section 138 of the Negotiable Instruments Act, 1881 - Section 143 of Negotiable Instrument Act, 1881 - De novo trial should be exercised as a last resort. Held that - On scrutiny of record available in SLP(Crl) No. 5623 of 2012, we found that there has been in total 82 hearings spread over five years. Out of 82 hearings, 67 hearings were done by Jt. C.J. (J.D.) and J.M.F.C., Veraval. The Magistrate was transferred on 24.02.2005 and was replaced by J.M.F.C., Veraval who heard the case for 14 more times and delivered judgment on 15th hearing i.e. on 12.09.2005. Thus by any stretch of imagination, the trial which extended over five years and was decided in over 82 hearings with elaborate cross examination, deposition and all trappings of regular trial cannot simply be termed as summary trial . Be that as it may, to satisfy ourselves we have carefully gone through the records of the Trial Court as well as the High Court in each matter before us. There is no doubt, as per the record, learned Magistrate has not specifically mentioned that the trial was conducted as summons case or summary case. Though in the record of SLP(Crl) No. 734 of 2013, at some places the word 'summary' was mentioned as regards to the nature of proceedings of the case, having given our anxious and thorough consideration, we found that the word 'summary' used therein was with reference to Chapter XXII of Cr.P.C., 1882 and it does not relate to the 'summary trial' envisaged under Section 143, of the N.I. Act. Pertinently, before the Trial Court the Suit No. 4457 of 2001 has been referred at some places as 'Summary Suit' and at some other places it has been referred as 'Civil Suit'. Similarly, the case number 5294 of 1998 has been shown at some places as Summary Case and at some other places it was shown as Criminal Case. After a careful examination of the record, we came to the conclusion that the word 'summary' used at some places was with reference to summary trials prescribed under Cr.P.C. Needless to say that the summary trial as preferred mode of trial in the matters related to negotiable instruments was inserted by the Amendment Act, 2002 only w.e.f. 6th February, 2003. A case under section 138 of the N.I. Act, which requires to be tried in a summary way as contemplated under section 143 of the Act, when in fact, was tried as regular summons case it would not come within the purview of section 326 (3) of the Code. In other words, if the case in substance was not tried in a summary way, though was triable summarily, and was tried as a summons case, it need not be heard de novo and the succeeding Magistrate can follow the procedure contemplated under section 326 (1) of the Code. But where even in a case that can be tried summarily, the Court records the evidence elaborately and in verbatim and defence was given full scope to cross-examine, such procedure adopted is indicative that it was not summary procedure and therefore, succeeding Magistrate can rely upon the evidence on record and de novo enquiry need not be conducted. The High Court in the present cases remanded the matters for de novo trial on the basis of flawed application of Nitinbhai's Saevatilal Shah case 2011 (9) TMI 918 - SUPREME COURT in spite of the fact that these cases are pending for over a decade. It went unnoticed by the High Court that the appellants have raised the plea of mode of trial due to change of Magistrate for the first time before the High Court. The same has not been raised when the change of Magistrate took place in the Court below during the course of trial. This clearly shows that only for the purpose of protracting the litigation, the plea has been taken for the first time. Had it been their case that because of the procedure adopted by the Court substantial miscarriage has taken place, they would have raised this plea at a much early stage of the proceedings. In the present cases on hand, without strong, cogent, unimpeachable evidence on record that cases were tried 'summarily' but not as regular trial, the Court below gravely erred in remanding them to the Trial Court for a de novo trial. In the light of the discussion made above, we are of the considered opinion that the High Court failed to appreciate the evidence on record in its true perspective. The High Court erred in arriving at a conclusion that the mode of trial in all these matters was summary trial whereas the record of the trial Court adequately shows that regular trial was undertaken in these matters. Hence, in our considered opinion, the matters are required to be remanded back to the High Court for consideration on merits. We make it clear, that we have not expressed any opinion on the merits of the cases. The High Court should, by conducting an independent inquiry and by reasoned order, dispose of the cases on their own merits as expeditiously as possible, preferably within a period of three months due to the fact that these cases are languishing for almost 14 years. - Decided in favour of appellant.

Summary

Issues Involved:
1. Legislative intent and object of incorporating Section 143 of the Negotiable Instruments Act.
2. Factors the appellate court must consider regarding the procedure adopted by the trial court.
3. Circumstances under which a case should be remanded for a de novo trial.

Detailed Analysis:

Legislative Intent and Object of Incorporating Section 143 of the Negotiable Instruments Act:
The Legislature inserted Sections 143 to 147 into the Negotiable Instruments Act to ensure the "speedy disposal" of cases related to the dishonor of cheques. The aim was to simplify the trial procedure, making it expeditious without compromising the accused's right to a fair trial. Section 143 mandates that all offences under Chapter XVII of the Act be tried "summarily," applying, as far as possible, the provisions of Sections 262 to 265 of the Cr.P.C. The Magistrate is given the discretion to convert a summary trial into a regular trial if deemed necessary, provided reasons are recorded.

Factors the Appellate Court Must Consider Regarding the Procedure Adopted by the Trial Court:
The appellate court must thoroughly scrutinize whether the trial was conducted summarily or as a summons trial. This involves examining the record to see if the evidence was recorded in detail or merely summarized. Key indicators include the framing of charges, recording of statements under Section 313 of the Cr.P.C., and the extent of cross-examination. The appellate court must ensure that any procedural irregularities did not result in a miscarriage of justice. The High Court must not remand a case for de novo trial without a clear finding that the trial was conducted summarily.

Circumstances Under Which a Case Should Be Remanded for a De Novo Trial:
A de novo trial should be ordered only in exceptional cases where it is indispensable to prevent a miscarriage of justice. This should not be done merely because of a change in the presiding Magistrate. The appellate court must ensure that the original trial was not conducted in a manner that substantially prejudiced the accused. The order for a de novo trial should be a last resort, used sparingly and only when the appellate court is convinced that the trial was indeed summary and not a regular trial.

Conclusion:
The Supreme Court found that the High Court had mechanically applied the precedent from Nitinbhai Saevantilal Shah without independently verifying whether the trials were conducted summarily or regularly. The records showed that the trials involved extensive hearings and detailed recording of evidence, indicating that they were not summary trials. The High Court's orders remanding the cases for de novo trials were set aside, and the matters were remanded back to the High Court for consideration on merits, with a direction to expedite the process. The Supreme Court emphasized that remanding for a de novo trial should be a last resort and only in cases of grave miscarriage of justice.