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TMI Blog2020 (12) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent/complainant in support of his case. 5 Point, raised by petitioner in the present petition, is that in an application, filed by the accused or prosecution under Section 145(2) of NI Act for summoning and examining any person giving the evidence on affidavit, the Court has no discretion to refuse to summon and examine such person as to the facts contained in the affidavit filed by the said person. To substantiate his plea, judgment pronounced by the Apex Court in Mandvi Cooperative Bank Ltd. vs. Nimesh B. Thakore reported in (2010)3 SCC 83, has been referred. 6 On perusal of record of the trial Court, it is noticed 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. 7. Besides above, 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 fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused, particularly in those proceedings where the accused has to suffer severe consequences, always remained paramount consideration of the Legislature and judiciary. For that reason only, Legislature by using word shall in Section 145(2) of NI Act has casted a mandatory duty upon the Court to call the witness(es) for examination/cross-examination on the application of prosecution or accused. 11 In view of bare provision of Section 145(2) of NI Act and law laid down by the Apex Court, the trial Court has committed an illegality in dismissing the application filed by the petitioner/accused. 12. 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Section 251 of Cr.P.C. is a commencing provision which requires that on appearance of accused or bringing him before the Magistrate, the particulars of offence shall be stated to him and he shall be asked whether he pleads guilty or not and therefore, it has been held that if the Magistrate opts to hold summary trial, trial of offence under the said Act begins when the Magistrate asks the accused whether he pleads guilty or not as envisaged in Section 251 of the Code. It is further held that evidence in a trial can be adduced only after recording the plea of accused as envisaged in the said Section. 16 Similarly, Section 143 of NI Act empowers the Court to try the cases summarily by applying Sections 262 to 265 (both inclusive) of Cr.P.C. as far as may be applicable. In view of provisions of Section 262 Cr.P.C., procedure for trial of summons case, as provided in Sections 251 to 259 Cr.P.C. contained in Chapter XX of Cr.P.C., is to be followed in summary trial with variations keeping in view provisions of Sections 263 to 265 Cr.P.C. and in trial under NI Act, it shall be subject to further variations in consonance with provisions of NI Act. Section 251 Cr.P.C. provides t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .P.C. provides that no sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under Chapter XXI of Cr.P.C. But provisions of first proviso to Section 143 of NI Act empowers the Magistrate to pass a sentence of imprisonment upto one year and an amount of fine exceeding ₹ 5000/- on conviction in a summary trial. Therefore, limit to impose the sentence as provided under Section 262 (2) of Cr.P.C. is not applicable in the summary trial under NI Act but it shall be governed by second proviso of Section 143 of NI Act. 19. Second proviso to Section 143 of NI Act also empowers the Magistrate, if it appears to him, keeping the nature of case, that a sentence of imprisonment for a term exceeding the term provided under first proviso may have to be passed or that, for any other reason, it is undesirable to try the case summarily, to recall the witness who may have been examined and to proceed to hear or re-hear the case in the manner provided by the Cr.P.C. but after hearing the parties and recording the order to that effect. It gives discretion to the Magistrate either to proceed summarily or otherwise for a regular trial, as warrant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to facts contained therein, if the Courts think fit to do so or on application of prosecution or the accused. In NI Act there is a slight departure to the procedure provided for a summary trial in Cr.P.C. where Magistrate has to record substance of evidence only and in a case under the NI Act, parties may file their evidence on affidavits and complainant or any other person giving evidence on affidavit may be called by the Court suo moto, or shall be summoned and examined on application of prosecution or the accused. 23. Section 143-A of NI Act, empowers the Court trying an offence under Section 138 of NI Act to order the drawer of cheque to pay interim compensation to the complainant, where drawer pleads not guilty to the accusation made in the complaint in summary trial or summons case trial or upon framing of charge in any other case. Therefore, in a regular trial under NI Act, Magistrate has option either to proceed with summary trial or summons case trial or any other trial other than summary trial or summons trial. 24 As held by the Apex Court in J.V. Baharuni s case there is no straitjacket formula to try the cases falling under NI Act and the law provided th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chapter XXI dealing with summary trials and further Section 143 of NI Act also provides that provisions of Sections 262 to 265 shall also apply to summary trial under NI Act as far as may be . Therefore, intent of Legislature is that Scheme of Chapter XX of Cr.P.C. dealing with trial of summons case shall be applicable to summary trials in principle only which means that after presence of accused before the Magistrate, in response to the process issued against him after taking cognizance of offence by the Magistrate, he has to be informed about accusation against him but it would not be necessary to frame a formal charge or put a Notice of Accusation to him as required in a summons case but the Magistrate has to record in his order, the fact of putting the substance of accusation to him and substance of response of accused thereto and thereafter, before considering the evidence already filed by way of affidavit by complainant, to call the complainant for filing any further evidence, if any, and to call for evidence by accused in rebuttal thereto including summoning and examining any person giving evidence on affidavit as provided under Section 145 of NI Act. Adopting aforesaid p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s referred supra, has observed that the procedure adopted by the Magistrate will indicate that as to whether case was tried summarily or in a regular way, therefore, in present case, it can be inferred that Magistrate has intended to opt for regular trial as the case was fixed for Notice of Accusation. 29 Further, the Magistrate has taken the cognizance of the case on the basis of preliminary evidence and other evidence filed by complainant with complaint and had summoned the accused and on presence, accused was directed to furnish the personal and surety bonds which were furnished by accused and attested and accepted by Magistrate and thereafter time was granted, as prayed for, by accused, for filing an application under Section 145 of NI Act for summoning the complainant for examination before putting Notice of Accusation. 30 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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