2020 (12) TMI 414 - HC - Indian Laws

Dishonor of Cheque - summon of accused - rejection of request of petitioner/accused to summon and examine the witnesses - Section 145(2) of Negotiable Instrument Act - HELD THAT - The trial Judge has also ventured in discussing the merits of case on the basis of plea taken by accused in the application, despite the fact that there was no occasion to discuss the same at this stage that too in an application filed under Section 145(2) of NI Act. It is also noticed that on 27.08.2018 on request of accused, without resorting to record substance of accusation or putting Notice of Accusation or framing the charge, and recording response of accused thereto, the Magistrate had granted time to the accused to file an application under Section 145 of Negotiable Instrument Act that too without giving an opportunity to the complainant to file/lead any further evidence, if any, which he would have intended to bring on record after commencement of trial. Thus the trial Court has committed a mistake of law. In present case, there is another issue which requires consideration. Application under Section 145 of NI Act was entertained at wrong stage whereas such application is permissible after closure of or during leading of evidence of complainant, at a stage when complainant would have been given opportunity to lead and complete his evidence after recording substance of accusation or putting notice of accusation or framing of charge but not before that. Therefore, the application should not have been permitted to be filed at wrong stage and in any case, if it had been permitted to be filed at wrong stage, then the same should have been kept pending for consideration at appropriate stage. It would be clear from discussions recorded hereinafter. It is evident from record that on the very first day of appearance of accused neither charge was framed nor Notice of Accusation was put to him and it was also not recorded that substance of accusation was communicated to him for his response as to whether he pleads guilty or has any defence to make. After putting the substance of accusation/Notice of Accusation to the accused, in case of not pleading guilty by him, the Magistrate would have either recorded substance of accusation to follow the procedure in summary trial or would have followed procedure for regular trial after putting notice of accusation or framing the charge as the case may be and thereafter would have asked the complainant to lead any further evidence, if any, in support of his case and thereafter occasion to entertain application under Section 145(2) of NI Act would have arisen to pray for summoning and examining the persons who might have given evidence on affidavit i.e. only after filing/leading any other further evidence or opting for not to lead further evidence by the complainant not prior to that. The trial Court has committed patent illegality in in impugned order. Serious mistake committed by the trial Court is not mere irregularity but illegality - the impugned order rejecting the application filed under Section 145 of NI Act is set aside with direction to the trial Court to consider this application after putting Notice of Accusation to accused, at the stage of or after calling for further evidence of complainant, if any, to be filed/led on behalf of complainant in support of his case. Petition allowed.

Summary

Issues Involved:
1. Legality of the dismissal of an application under Section 145(2) of the Negotiable Instruments Act (NI Act).
2. Proper stage for filing an application under Section 145(2) of the NI Act.
3. Interpretation and application of Sections 143 to 147 of the NI Act in conjunction with the Criminal Procedure Code (Cr.P.C.).

Detailed Analysis:

1. Legality of the Dismissal of an Application under Section 145(2) of the NI Act:
The petitioner challenged the impugned order dated 8.4.2019, whereby the Additional Chief Judicial Magistrate-I, Amb, District Una, dismissed an application under Section 145(2) of the NI Act. The petitioner argued that the court has no discretion to refuse to summon and examine witnesses whose affidavits have been filed by the complainant. The trial court's dismissal was found to be illegal as it did not comply with the mandatory requirement of summoning witnesses when an application under Section 145(2) is filed by the prosecution or the accused. The court referred to the Supreme Court's judgment in Mandvi Cooperative Bank Ltd. vs. Nimesh B. Thakore, which clarified that the use of the words ‘may’ and ‘shall’ in Section 145(2) indicates a mandatory duty to summon witnesses upon such an application.

2. Proper Stage for Filing an Application under Section 145(2) of the NI Act:
The court noted that the application under Section 145 of the NI Act was entertained at an incorrect stage. This application should be filed after the closure of the complainant's evidence or during the leading of evidence, not before the trial commences. The trial court's mistake was in allowing the application before putting the Notice of Accusation or framing the charge and recording the response of the accused. The court emphasized that the application should be considered only after the trial has commenced and the complainant has had the opportunity to present further evidence if any.

3. Interpretation and Application of Sections 143 to 147 of the NI Act in Conjunction with the Cr.P.C.:
The judgment extensively discussed the procedure for trials under the NI Act, particularly focusing on the summary trial provisions under Section 143. The court explained that the NI Act creates a special code for the trial of offences under Chapter XVII, aiming for expeditious trials without compromising the accused's right to a fair trial. The court highlighted that the trial should commence with the recording of the substance of accusation or putting the Notice of Accusation to the accused, followed by the complainant's opportunity to present further evidence. The court also referred to the Supreme Court's judgments in J.V. Baharuni and Meters and Instruments Private Ltd. vs. Kanchan Mehta, which elucidated the procedural nuances and the flexibility afforded to Magistrates in conducting trials under the NI Act.

Conclusion:
The trial court's order dated 8.4.2019 was set aside, and the trial court was directed to reconsider the application under Section 145(2) of the NI Act at the appropriate stage, i.e., after putting the Notice of Accusation to the accused and calling for further evidence from the complainant if any. The parties were directed to appear before the trial judge on 11.01.2021, and the trial judge was instructed to proceed in accordance with the law as discussed in the judgment. The court emphasized the importance of adhering to the correct procedural stages to ensure a fair trial and avoid procedural irregularities.