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TMI Blog2022 (4) TMI 1152X X X X Extracts X X X X X X X X Extracts X X X X ..... case from another perspective, Section 461 CrPC deals with irregularities which vitiate proceedings. The order of the Magistrate to try the case as a summons case is not an irregularity that would vitiate the proceedings. Hence, even though the proviso to Section 143 contemplates affording of hearing to the parties before directing a case to be tried as summons case, however, non-compliance thereof does not vitiate the proceedings. Apparently the said proviso contemplates a situation where the order to try the case as summons case is passed by the Magistrate after commencement of the trial and where certain witnesses have been recorded - The delay on the part of the petitioner in approaching the Court has not been satisfactorily explained. Besides, apart from the apprehension that petitioner is likely to be sentenced for an imprisonment beyond one year, the same cannot be said to be a prejudice caused to an accused. The said discretion is yet to be exercised by judicial prudence and is not a judgment as regards conclusion of guilt of an accused. It does not thus amount to determination of any right of an individual or to have occasioned a prejudice to him. A prejudice has to be es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th remarks funds insufficient and drawers signature differ . The same meant that not only the petitioner-accused did not have sufficient funds in his account but also the cheque did not match the specimen signatures available with the bank. A statutory notice under the Negotiable Instruments Act dated 21st July, 2012 was sent to the petitioner-accused, however, upon non-payment of the money, complaint in question was instituted and the petitioner-accused was summoned to face trial under Section 138 of the Negotiable Instrument Act vide order dated 23rd August, 2012. Considering the huge amount of the cheque the Trial Court vide order dated 24th August, 2013 held that the case may warrant an imprisonment of more than one year and as such it is undesirable to try the case in a summary manner. Accordingly, the case was tried as a summons case. Notice of accusation was served upon the petitioner-accused on 29th November, 2013. The present petition was thus filed raising a challenge to the proceeding directing conducting of the case as summons case by urging that the order was in conflict with the mandate of Section 143 of the Negotiable Instrument Act, which relates to the power of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ques for insufficiency of funds, etc. shall be tried by a Judicial Magistrate and the provisions of Sections 262 to 265 Cr.P.C. prescribing procedure for summary trials, shall apply to such trials and it shall be lawful for a Magistrate to pass sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding ₹ 5,000/- and it is further provided that in the course of a summary trial, if it appears to the Magistrate that the nature of the case requires passing of the sentence of imprisonment exceeding one year, the Magistrate, after hearing the parties, record an order to that effect and thereafter recall any witness and proceed to hear or rehear the case in the manner provided in Criminal Procedure Code. 5. Learned counsel has further placed reliance upon the judgment of the Hon'ble Supreme Court in the matter State of Punjab Vs. Devinder Pal Singh Bhullar Ors, 2012(1) RCR (Criminal) 126. The relevant extract of the same is reproduced hereinbelow:- 72. It is a settled legal proposition that if initial action is not in consonance with law, all subsequent and consequential proceedings would fall through for the reason that illegality stri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gone through the judgments relied upon by the learned counsel for the respective parties. 11. Before delving further into the case, the relevant statutory provisions viz. Section 143 of the Negotiable Instruments Act is reproduced herein below:- 143. Power of Court to try cases summarily.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials: Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees: Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d procedure of trial of the offence under the Negotiable Instruments Act i.e. summary trial. The incorporation of Section 143 to 147 was aimed at early disposal of cases in simplified procedure and more particularly to do away the stages and process in a regular criminal trial that normally cause inordinate delay in its conclusion and to make a trial procedure as expeditious and possible without in any way compromising with the right of the accused for a fair trial. There is no straitjacket formula classifying a case to be tried as a summary trial or as a summons case in offences falling under the Negotiable Instruments Act. The law provided therefore is so flexible that it is up to the prudent judicial mind to try the case summarily or otherwise. It was held by the Hon'ble Supreme Court in the matter of J.V. Baharuni (supra) in Para 44 ,that no doubt the second proviso to Section 143 of of the Act specifies that in case a magistrate does not deem the case fit to try summarily, he shall record an order to that effect after hearing the parties. Just because this directive is not followed scrupulously by the Trial court would itself not vitiate the entire trial and the Appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter for de novo trial. 6. While examining the nature of the trial conducted by the Trial Court for the purpose of determining whether it was summary trial or summons trial, the primary and predominant test to be adopted by the appellate Court should be whether it was only the substance of the evidence that was recorded or whether the complete record of the deposition of the witness in their chief examination, cross examination and re- examination in verbatim was faithfully placed on record. The appellate Court has to go through each and every minute detail of the Trial Court record and then examine the same independently and thoroughly to reach at a just and reasonable conclusion. 15. Further, reliance on the judgment of Indian Bank Association (supra) is misplaced as the said judgment only contemplates that an order to try a case as summons case has to be passed after hearing the parties, which is also the plain and suggestive reading of the said proviso. The said judgment, however, does not hold that the same is a mandatory provision and that any non- compliance thereof shall vitiate the proceedings. Insofar as the judgment of State of Punjab Vs. Devinder Pal Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner is likely to run contrary to the object behind the statutory provision. It is well settled proposition in law that a provision may be couched in mandatory terms but yet can be directory and used of word shall , may not by itself, make the clause mandatory. It is evident that non-compliance to the second proviso to the extent of failure to grant hearing does not prescribe any consequence and it is for the said reason that the Hon'ble Supreme Court has held that a mere non- compliance of the directive would not vitiate the trial. 18. As has been pointed out by counsel for respondent, trial has advanced to an extent of being concluded inasmuch as, even the statement under Section 313 CrPC stands recorded. The delay on the part of the petitioner in approaching the Court has not been satisfactorily explained. Besides, apart from the apprehension that petitioner is likely to be sentenced for an imprisonment beyond one year, the same cannot be said to be a prejudice caused to an accused. The said discretion is yet to be exercised by judicial prudence and is not a judgment as regards conclusion of guilt of an accused. It does not thus amount to determination of any right ..... X X X X Extracts X X X X X X X X Extracts X X X X
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