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TMI Blog2020 (11) TMI 884X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 conver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Negotiable Instruments Act, 1881 (for short, 'the said Act of 1881'), the learned Magistrate has an option to try the case as a summons case when he is of the view that it is undesirable to try the case summarily. However, another learned Single Judge, in the case of Mahendra Kumar -vs- Gangamma.B - ILR 2018 KAR 4761, by relying upon a decision of another learned Single Judge rendered in the case of M/S. Leo Granex -vs- M/S. Pavillion Granites others - ILR 2009 KAR 4062 held that if the learned Magistrate is of the opinion that it is undesirable to proceed with the trial of a complaint filed under Section 138 of the said Act of 1881 by following summary procedure, depending upon the complexity of the case, by invoking the power under Section 143 of the said Act of 1881, he can convert the summary triable case into a warrant triable case. As per the order dated 13th July, 2020 passed by the Chief Justice on the administrative side, the case is placed before this Bench for deciding the question quoted above. By Order dated 7th September 2020, this Court appointed Sri. Vikram Huyilgol, learned Additional Government Advocate as Amicus Curiae to assist the Court. 3. Tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner-accused has challenged the cognizance order itself and has taken a serious defence based on misuse of unsigned cheque. He submitted that though, in normal course, the provisions of Sections 262 to 265 of Cr.P.C which are applicable to a summary trial have to be applied to a trial of a complaint filed under Section 138 of the said Act of 1881, Section 143 confers a power on a Magistrate to direct trial of such a complaint filed under Section 138 of the said Act of 1881 as a warrant case. He pointed out that Section 259 of Cr.P.C confers power on the learned Magistrate to follow the procedure for trial of warrant case in a case where the procedure regarding summons case is applicable. He urged that the view taken by the learned Single Judge in the case of Mahendra Kumar (supra) is well supported by law. 5. The learned counsel appearing for the respondent- complainant submitted that the decision of the Apex Court in the case of Indian Bank Association and others -vs- Union of India and others1 settles the issue. He urged that in view of the fact that Section 143 of the said Act of 1881 starts with non obstante clause, Section 143 is mandatory in nature and Section 259 of Cr.P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o day until its conclusion, unless the court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded in writing. (3) Every trial under this section shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint. (emphasis added) 8. Under Section 138 of the said Act 1881, the maximum punishment for the offences alleged under the said section is of imprisonment for a term which may be extend to two years or with fine which may extend to twice the amount of the cheque, or with both. To understand the purport and the legal effect of the provision of sub-section (1) of Section 143 of the said Act of 1881, it is necessary to make a reference to relevant provisions of Cr.P.C. Under clause (x) of Section 2 of Cr.P.C, a 'warrant case' is defined as the case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. A summons case is defined under clause (w) of Section 2 of Cr.P.C to mean a case relating to an offence, which is not a warrant a case. Therefore, going by the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial it appears to the Magistrate that the nature of the case is such that it is undesirable to try it summarily, the Magistrate shall recall any witnesses who may have been examined and proceed to re-hear the case in the manner provided by this Code. 9. In view of clause (i) of sub-section (1) of Section 260 of Cr.P.C., which starts with non-obstante clause, sub-section (1) of Section 260 of Cr.P.C overrides the other provisions of Cr.P.C. Therefore, in view of sub-clause (i) of sub-section (1) of Section 260, in case of the offences which are not punishable with death or imprisonment for life or imprisonment for a term exceeding two years, any Chief Judicial Magistrate, any Metropolitan Magistrate or any Magistrate of the First Class specially empowered in this behalf by the High Court can try a case in a summary way in a manner laid down under Sections 262 to 265 of Cr.P.C. Thus, when a case involving the offences not punishable with imprisonment for a term exceeding two years is being tried by a Chief Judicial Magistrate, a Metropolitan Magistrate or a Magistrate of the First Class specially empowered in this behalf by the High Court, the Court can order that the case shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Magistrate finds that one of the contingencies set out in the second proviso to sub-section (1) of Section 143 exists, he can pass an order to that effect and hear or rehear the case, as the case may be, in the manner provided by Cr.P.C. As the maximum sentence prescribed for the offence punishable under Section 138 of the said Act of 1881 cannot exceed two years, in view of the definition of warrant case in clause (x) of Section 2 of Cr.P.C, the case cannot be tried as a warrant case and, therefore, once the power under second proviso is exercised, the complaint filed alleging an offence punishable under Section 138 of the said Act of 1881 becomes a summons case as contemplated by clause (w) of Section 2 of Cr.P.C. 11. Now, the question is whether the learned Magistrate trying a case under Section 138 of the said Act of 1881 can exercise his power under Section 259 of Cr.P.C, which could be exercised in case of a summons case. Section 259 of Cr.P.C. reads thus: 259. Power of Court to convert summons-cases into warrant-cases.--When in the course of the trial of a summons-case relating to an offence punishable with imprisonment for a term exceeding six months, it appears ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowing the procedure applicable to a summons cases. Sub- section (1) of Section 143 of the said Act of 1881 introduces a special regime of procedure to try a complaint for an offence punishable under Section 138 of the said Act of 1881. A complaint under Section 138 of the said Act of 1881 can become a summons case only in a case to which second proviso to sub- section (1) of Section 143 of the said Act of 1881 is made applicable. Thus, the procedure to be followed for deciding such cases is governed by Section 143 of the said Act of 1881. 15. Sub-section (2) of Section 143 specifically provides that so far as practicable, consistently with the interests of justice, the trial of the cases alleging an offence punishable under Section 138 shall be continued from day to day until its conclusion, unless the Court finds the adjournment of the trial beyond the following day for the reasons to be recorded in writing. Sub-section (3) of Section 143 lays down that trial shall be concluded as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint. Consistent with these provisions, the Apex Court, in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1881 can convert the complaints into warrant triable cases are completely contrary to the plain reading of the provisions of Section 143 (1) and are also contrary to the specific directions issued by the Apex Court in the case of J.V. Baharuni (supra). 21. 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. 22. Therefore, for the foregoing reasons, we answer the question formulated by the learned Single Judge in the order dated 29th June 2020 in the negative. It is held that 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. We record our apprec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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