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TMI Blog2024 (8) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... trate to record any further preliminary evidence of the complainant. Such an affidavit in evidence though produced at the time of verification can be read as evidence at all stages of the trial and other proceedings. Manner of the examination of the person giving affidavit is as per Section 264 of Cr.P.C. Since the scheme is to follow summary procedure, Section 264 of Cr.P.C., provides judgment to be passed when the accused pleads not guilty unless an application is filed for recall of the witnesses as provided under Section 145 (2) of the Act. These provisions are required to be read in tandem. In Expeditious Trial of Cases under Section 138 of the N. I. Act, 1881 [ 2021 (4) TMI 702 - SUPREME COURT] , the Constitutional Bench of the Apex Court discussed the power of Magistrate to try summary and procedure adopted by the Magistrate to convert summary trial into summons triable mechanically, considered in detail provisions and the mandate of Section 143 of the Act. The main issue in that proceeding was the power of the Court under Section 258 of Cr.P.C. to stop the proceedings and in that context observations in the case of Meters and Instruments Private Limited [ 2017 (10) TMI 218 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Karn, Advocate. For the Respondent : Mr Parag Rao and Mr Ajay Menon, Advocate. JUDGMENT 1. Rule. Rule is made returnable forthwith. Heard matter finally at the admission stage with consent. 2. The legality or otherwise of the order dated 14.8.2023 passed by the Magistrate is under challenge in the present petition. 3. Mr Karn would submit that the impugned order needs interference since it is first of all perverse and violative of principles of natural justice as no sufficient time was granted to the petitioner in the present matter and an application for recall of the order is rejected. 4. Mr Karn would submit that the action of the learned Magistrate in closing the cross examination of the complainant is clearly arbitrary and amounts to denial of an opportunity. He submits that such rejection is clearly against the settled principles of criminal jurisprudence of granting fair opportunity to the accused to decide the matter as hurriedly did in the present matter. He would then submit that at the most some cost could have been awarded to the petitioners for the purpose of allowing the order of recall. 5. Mr Karn would further submits that order dated 14.8.2023 was passed without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll of the order dated 14.8.2023 would not arise. 9. Rival contentions fall for consideration. 10. A private complaint under Section 138 of the Act is filed against the petitioners claiming that a memorandum of understanding was executed between the parties whereby the complainant agreed to purchase plot D and accordingly issued some cheques. 11. Though the initial request was there not to present the cheques, memorandum of understanding shows that part payment is required to be made on 30.11.2021 and accordingly cheques were presented for encashment, however, the same were returned unpaid. 12. Complainant issued a legal notice demanding the amount mentioned in the cheques. Even though such notice was received, there was no payment forthcoming and accordingly, offence stands concluded against the petitioners and the directors resulting in filing of the complaint. 13. Records show that after verification of the complaint on the basis of filing of the affidavit, process was issued against the accused. 14. Admittedly proceedings under Section 138 of the Act are required to be conducted as summary procedure unless the Magistrate comes to the conclusion that there is need to convert it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code. (2) The trial of a case under this section shall, so far as practicable, consistently with the interests of justice, be continued from day to 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. 19. Perusal of the above provision which was inserted by Act of 55 of 2002 and came into effect from 6.2.2003 would clearly go to show that all offences under the said chapter i.e. chapter XVII starting with Section 138, shall be tried by Judicial Magistrate First Class ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court. Similarly the accused, on an application to that effect is entitled to summon and examine any person giving evidence on affidavit. 25. Thus it is clear that the accused, if he so desire to examine any person and more specifically the complainant and his witness who has deposed on affidavit, must file an application to that effect and accordingly, the Court is required to decide whether to recall the witnesses or not. 26. Matter in hand would go to show that the complainant deposed on affidavit at the time of verification of the complaint and such deposition on affidavit is required to be considered as evidence in any inquiry/trial or other proceedings as provided under Section 145 (1) of the Act. Complainant need not step into the witness box again in order to prove his affidavit after the process is issued to the accused. This fact is clearly established in the directions issued by the Apex Court in the case of Indian Bank Association and others Vs Union of India and others (2014) 5 SCC 590, in paragraph 23 which reads thus:- 23 Many of the directions given by the various High Courts, in our view, are worthy of emulation by the criminal courts all over the country dealing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 52 CrPC, the procedure contemplated under Chapter XX CrPC has to be followed to take the trial to its logical conclusion, the said judgment was rendered as per statutory provisions prior to the 2002 Amendment. The statutory scheme post-2002 Amendment as considered in Mandvi Coop. Bank [Mandvi Coop. Bank Ltd. v. Nimesh B. Thakore, (2010) 3 SCC 83, pp. 95-96, paras 25, 26 : (2010) 1 SCC (Civ) 625 : (2010) 2 SCC (Cri) 1] and J.V. Baharuni [J.V. Baharuni v. State of Gujarat, (2014) 10 SCC 494 : (2015) 1 SCC (Cri) 1] has brought about a change in law and it needs to be recognised. After the 2002 Amendment, Section 143 of the Act confers implied power on the Magistrate to discharge the accused if the complainant is compensated to the satisfaction of the court, where the accused tenders the cheque amount with interest and reasonable cost of litigation as assessed by the court. Such an interpretation was consistent with the intention of legislature. The court has to balance the rights of the complainant and the accused and also to enhance access to justice. Basic object of the law is to enhance credibility of the cheque transactions by providing speedy remedy to the complainant without int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to appear and if the Court is satisfied that the payment has not been duly made and if the complainant has no valid objection. If the accused is required to appear, his statement ought to be recorded forthwith and the case is to be fixed for defence evidence, unless the complainant's witnesses are recalled for examination. 29. Then the Apex Court in case of Meters and Instruments Private Ltd (supra) observed in paragraph 18 as under:- 18 From the above discussion the following aspects emerge: 18.1 Offence under Section 138 of the Act is primarily a civil wrong. Burden of proof is on the accused in view of presumption under Section 139 but the standard of such proof is preponderance of probabilities . The same has to be normally tried summarily as per provisions of summary trial under CrPC but with such variation as may be appropriate to proceedings under Chapter XVII of the Act. Thus read, principle of Section 258 CrPC will apply and the court can close the proceedings and discharge the accused on satisfaction that the cheque amount with assessed costs and interest is paid and if there is no reason to proceed with the punitive aspect. 18.2 The object of the provision being p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time of verification can be read as evidence at all stages of the trial and other proceedings. Manner of the examination of the person giving affidavit is as per Section 264 of Cr.P.C. Since the scheme is to follow summary procedure, Section 264 of Cr.P.C., provides judgment to be passed when the accused pleads not guilty unless an application is filed for recall of the witnesses as provided under Section 145 (2) of the Act. These provisions are required to be read in tandem. 31. In Expeditious Trial of Cases under Section 138 of the N. I. Act, 1881 RE reported in (2021) 16 SCC 116, the Constitutional Bench of the Apex Court discussed the power of Magistrate to try summary and procedure adopted by the Magistrate to convert summary trial into summons triable mechanically, considered in detail provisions and the mandate of Section 143 of the Act. The main issue in that proceeding was the power of the Court under Section 258 of Cr.P.C. to stop the proceedings and in that context observations in the case of Meters and Instruments Private Limited(supra) were considered as inappropriate. However, specific directions were issued to the High Court to issue practice directions to the trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amination, it is not necessary for the Magistrate to record further preliminary evidence. Such an affidavit could be read in evidence at all stages of the trial. 35. Section 145 of the Act is an enabling provision for the complainant to lead evidence on affidavit. Complainant when chooses to give evidence on affidavit during the course of inquiry or trial or other proceedings, it cannot be said that such evidence on affidavit cannot be allowed during further stage of trial. Basically it is a rule of procedure laid down by the legislature in the manner in which evidence of the complainant needs to be recorded. However, Section 145 of the Act and more specifically sub section 2 allows the Court of its own motion to summon any such person who has given evidence on affidavit. Apart from power of the Court, prosecution i.e. complainant as well as accused are entitled, on an application being filed to summon the complainant and his witnesses for examination. However, the accused must disclose grounds for recalling such witnesses and probable defence on which he wants to cross examine the complainant and their witnesses. Thus it is clear that an application on behalf of the prosecution or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on filed on behalf of the petitioner and secondly there are no grounds of probable defence for the purpose of such recall. 41. In the case of Ajju C. S. Sindolli Vs Elizabeth Rodrigues Criminal Writ Petition No. 56/2023 decided on 126.10.2023, is clearly distinguishable. In that case after explaining substance of accusation and pleading not guilty, the Magistrate recorded that since no application is filed under section 145 (2) of the Act, matter to proceed for 313 statement and adjourned it to further date. On the next date the accused filed an application seeking permission to cross examine the complainant under Section 145 (2) of the Act and for reopening the case. Both these applications were rejected, which were challenged before this Court. By placing reliance in the case of Meters and Instruments Private Ltd (supra), learned Single Judge (Coram Prakash D. Naik, J) observed that an accused who wants to contest the case, must be required to disclose specific defence for such contest and then it is open to the Court to ask specific questions to the accused at that stage. Thus in the case of Mr Ajju C. S. Sindolli (supra), there was specific application filed giving details of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Single Judge (Coram Prakash D. Naik, J) is again distinguishable. In that matter examination in chief of the complainant was recorded and since Advocate for the accused was not present, cross examination was closed. Subsequently an application for recall of the complainant was filed which was opposed by the complainant. Accused then filed another application under Section 145 (2) of the Act which was again opposed by the complainant. Both these applications were allowed by the learned Magistrate and the complainant was recalled. Thus, the above decision will not be of any help since it is squarely on different facts and circumstances. 46. Petitioners failed to apply before the Court under Section 145 (2) of the Act disclosing their probable defence for the purpose of recalling the complainant. Thus, there is no ground even to recall the order of closing of cross examination as no purpose would be served since there is no application disclosing probable grounds for the purpose of cross examination of the complainant. 47. For all the above reasons, no fault could be attributed to the order passed by the learned trial Court and much less any illegality or perversity so as to inter ..... 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