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2020 (11) TMI 884 - HC - Indian LawsDishonor of Cheque - offence punishable under Section 138 of the Negotiable Instruments Act, 1881 - Power of Court to try cases summarily - Whether in a case for offence punishable under Section 138 of the Negotiable Instruments Act, 1881, the Court of Magistrate exercising its power under the second proviso to Section 143 (1) of the Negotiable Instruments Act, if it appears to the said Court that it is undesirable to try the case summarily, after recording reasons, can proceed to try/hear the said case as a warrant case? HELD THAT - Only in limited cases where the second proviso to sub-section (1) of Section 143 of the said Act 1881 is applicable, the learned Magistrate can convert the case into a summons case. In view of overriding effect of sub-section (1) of Section 143 of the said Act 1881, a case under Section 138 is not a summons case. It must be tried summarily unless it can be tried as summons case by exercising the power under second proviso to sub-Section (1) of Section 143. The power under Section 259 of Cr.P.C can be exercised only in a case which is triable as a summons case. A case under Section 138 of the said Act of 1881 is not a summons case in view of the fact that sub-section (1) of Section 143 overrides the provisions of Cr.P.C. Therefore, Section 259 of Cr.P.C, cannot be allowed to be invoked by the learned Magistrate after passing an order under second proviso to sub-section (1) of Section 143 of the said Act of 1881. The object of introducing Chapter XVII into the said Act of 1881 containing Sections 138 to 142 by the Act of 66 of 1988 with effect from 1st April 1989 was to enhance the acceptability of the cheques in settlement of liabilities by making the drawer liable for penalties in case of bouncing/dishonor of cheques. If the learned Magistrates are allowed to invoke power under Section 249 of Cr.P.C by adopting the procedure for a warrant case, it will completely defeat the very object of introducing Chapter XVII, as there will not be an expeditious disposal of trial in a complaint filed alleging an offence punishable under Section 138 of the said Act of 1881. Therefore, the power of the learned Magistrate under the second proviso to sub-section (1) of Section 143 of the said Act of 1881 is confined only to converting a complaint under Section 138 of the said Act of 1881 into a summons triable case. The power conferred on the Magistrate under the second proviso to sub-section (1) of Section 143 does not enable the learned Magistrate to exercise power under Section 259 of Cr.P.C and to convert a complaint filed alleging an offence under Section 138 of the said Act of 1881 into a warrant triable case. If the learned Magistrates are allowed to convert the complaints filed alleging an offence punishable under Section 138 of the said Act of 1881 into a warrant triable case, the consequence will be disastrous as the trial will be prolonged. Lot of time will have to be devoted for hearing of discharge application and for framing of charge. It will amount to defeating the very object of introducing Chapter XVII containing Sections 138 to 142 in the said Act of 1881 with effect from 1st April 1989. The power of the learned Magistrate to convert the trial of a complaint under Section 138 of the said Act of 1881 under the second proviso to sub-section (1) of Section 143 is confined only to converting the case into a summons triable case - Application disposed off.
Issues Involved:
1. Whether a Magistrate can convert a summary trial under Section 138 of the Negotiable Instruments Act, 1881, into a warrant trial. Detailed Analysis: Issue 1: Conversion of Summary Trial to Warrant Trial The primary question was whether a Magistrate, under Section 138 of the Negotiable Instruments Act, 1881, can convert a summary trial into a warrant trial. The judgment addressed conflicting views from previous cases, namely: - M/S. Mesh Trans Gears Private Limited vs. Dr. R. Parvathareddy: Held that a Magistrate could opt for a summons trial if it was undesirable to try the case summarily. - Mahendra Kumar vs. Gangamma.B: Held that a Magistrate could convert a summary trial into a warrant trial depending on the complexity of the case. Legal Provisions and Interpretations: - Section 143 of the Negotiable Instruments Act, 1881: This section allows Magistrates to try cases summarily but includes a proviso that permits conversion to a summons trial if imprisonment exceeding one year might be necessary or if it is otherwise undesirable to try the case summarily. - Section 259 of the Code of Criminal Procedure (Cr.P.C.): Allows conversion of summons cases into warrant cases if the offense is punishable with imprisonment exceeding six months and if it serves the interests of justice. Court's Analysis: 1. Summary vs. Summons Trials: The Court clarified that under Section 143, complaints under Section 138 should be tried summarily. Only in specific circumstances (as per the second proviso to Section 143) can the case be converted to a summons trial. This does not extend to converting the case into a warrant trial. 2. Non-Applicability of Section 259 of Cr.P.C.: The Court held that Section 259 of Cr.P.C. cannot be invoked to convert a Section 138 case into a warrant trial. The overriding effect of Section 143 of the Negotiable Instruments Act precludes such conversion. 3. Judicial Precedents: The Court referred to the Supreme Court decision in J.V. Baharuni vs. State of Gujarat, which emphasized that a Magistrate has discretion under Section 143 to follow either summary or summons trial procedures but not warrant trial procedures. Conclusion: The Court concluded that the power of the Magistrate under the second proviso to Section 143(1) of the Negotiable Instruments Act is limited to converting a summary trial into a summons trial. It does not extend to converting the case into a warrant trial. The judgment emphasized the importance of expeditious disposal of cases under Section 138 to uphold the legislative intent behind the Negotiable Instruments Act. The petition was directed to be placed before the concerned Single Bench for further proceedings in accordance with the law laid down in this judgment. The Court appreciated the assistance provided by the Amicus Curiae in reaching this decision.
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