Dismissed

M/S V.K. Dhir Hosiery Works and Anr. v. Suresh Kumar Gupta and Sons HUF

Punjab & Haryana HC27 Oct 2014CRM-M/14930/2012

Case brief

AI extract

What is this about?

The High Court dismissed multiple petitions contesting orders denying a de novo trial in cheque bounce cases. It ruled that while cheques crimes are triable summarily, full evidence recording makes them regular trials where Section 326(2) CrPC applies, allowing successors to use predecessor's evidence. It also barred second revisions citing statutory limits.

What did the court decide?

Petitions dismissed; costs of Rs. 25,000 awarded to respondents; orders to expedite trial.

M/S V.K. Dhir Hosiery Works and Anr. Vs Suresh… — Cheque Dishonour | Punjab & Haryana HC (2014)

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CRM - M-No. 14930 of 2012

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IN THE HIGH COURT OF JUDICATURE FOR THE STATES OF PUNJAB AND HARYANA, AT CHANDIGARH

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	Date of Decision: 27.10. 2014 CRM- M-No. 14930 of 2012
M/s. V.K. Dhir Hosiery Works &	another ...Petitioners
	Versus
Suresh Kumar Gupta & Sons (HU	F) ...Respondents
	CRM- M-No. 25361 of 2012 (O&M)
M/s. V.K. Dhir Hosiery Works &	another ...Petitioners
	Versus
R.L. Nauhria & another	...Respondents
	CRM- M- No. 40290 of 2012
Naveen Bajaj	...Petitioner
	Versus
Amitoj Singh	...Respondent
	CRM- M-No. 7503 of 2013 (O&M)
Surinder Pal Singh	...Petitioner
	Versus
Harvinder Singh	...Respondent
CORAM:HON’BLE MR. JU	STICE MAHAVIR S. CHAUHAN
Present: For the petitioners:
Mr. Vaibhav Sehgal,	Advocate

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VIRENDRA SINGH ADHIKARI 2014.11.11 13:27 I attest to the accuracy and authenticity of this document High Court Chandigarh

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CRM - M-No. 14930 of 2012

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For the respondent(s) :

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Mr. B.D. Sharma, Advocate (In Crl. Misc.- M-No. 14930 of 2012 & CRM M- No. 40290 of 2012)

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Mr. H.R Nauhria, Advocate(In Crl. Misc.- M-No. 25631 of 2012)

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Mr. Sanjiv Ghai, Advocate (In CRM- M- No. 7503 of 2013)

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1. Whether Reporters of local papers may be allowed to see the judgment? Yes

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2. To be referred to the Reporter or not? Yes

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3. Whether the judgment should be reported in the Digest? Yes

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Mahavir S. Chauhan, J.

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This order, being passed in Crl. Misc. M- No. 14930 of 2012, M/s. V.K. Dhir Hosiery Works & another versus Suresh Kumar Gupta & Sons (HUF), shall dispose of, in addition to this petition, Crl. Misc.- M- No. 25361 of 2012, M/s. V.K. Dhir Hosiery Works & another versus R.L. Nauhria & another, Crl. Misc. - M- No. 40290 of 2012, Naveen Bajaj versus Amitoj Singh, and Crl. Misc. M- No. 7503 of 2013, Surinder Pal Singh versus Harvinder Singh as all these petitions involve a common question of law, i.e., whether or not provisions of sub-section (2) of Section 326 of the Code of Criminal Procedure, 1973 (here-in-after referred to as, ‘the Code’) are attracted to the cases on hand? Facts, for the sake of convenience and to avoid unnecessary confusion, have been taken from Crl. Misc. No. M-14930 of 2012, M/s. V.K. Dhir Hosiery Works & another versus Suresh Kumar Gupta & Sons

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VIRENDRA SINGH ADHIKARI 2014.11.11 13:27 I attest to the accuracy and authenticity of this document High Court Chandigarh

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CRM - M-No. 14930 of 2012

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(HUF).

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Criminal Complaint No. 257/2 of October 03, 2001, Suresh Kumar versus V.K. Dhir, was brought by the the respondent against the petitioners under Section 138 of the Negotiable Instruments Act, 1881 (here-in-after referred to as, the Act) on the allegations that in the month of April, 2001, the petitioners had borrowed from the respondent an amount of two lac rupees (Rs. 2,00,000/- only) with a promise to return it within four months but a cheque bearing No. 957804 dated August 13, 2001, for Rs.2.00 lacs, drawn on Indian Overseas Bank, Civil Lines, Ludhiana issued by the petitioners to the respondent in discharge of that liability, when presented to the bankers of the petitioners for encashment, was returned uncashed and the petitioners failed to return the amount due despite service upon them of a notice of demand. In that complaint, the petitioners filed an application under sub-section (2) of Section 326 of the Code praying for de novo trial. In the reply filed by the respondent averments made in the application were denied.

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Learned Judicial Magistrate Class-I, Ludhiana, vide order dated February 10, 2012, dismissed the application by holding that the case from its very inception was tried as a Summons Case and evidence was recorded in detail (as against the summary procedure of recording only substance of the evidence) and, as such the application was misconceived.

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Petitioners assailed the correctness of order dated February 10, 2012 by way of Criminal Revision No. 08 of February 17, 2012 which, after

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VIRENDRA SINGH ADHIKARI 2014.11.11 13:27 I attest to the accuracy and authenticity of this document High Court Chandigarh

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CRM - M-No. 14930 of 2012

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contest, was dismissed by learned Additional Sessions Judge, Ludhiana vide order dated April 05, 2012.

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To impugn correctness of order dated April 05, 2012 of the learned Additional Sessions Judge and order dated February 10, 2012 of the learned Judicial Magistrate Class-I, petitioners have sought to invoke, by way of this petition, inherent powers of this Court under the provisions of Section 482 of the Code.

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Respondent is contesting the petition.

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I have heard learned counsel for the parties.

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Learned counsel for the petitioners relies upon Nitinbhai

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Saevatilal Shah and Anr. Vs. Manubhai Manjibhai Panchal and Anr . , 2011

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(4)RCR(Criminal)148 to contend that when a case is tried as a summary case a Magistrate, who succeeds the Magistrate who had recorded the part or whole of the evidence, cannot act on the evidence so recorded by his predecessor. In summary proceedings, the successor Judge or Magistrate has no authority to proceed with the trial from the stage at which his predecessor has left it and, as such, petitioners’ application for de novo trial has wrongly been dismissed by the Courts below.

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09. Per Contra , learned counsel representing the respondent argued that the case cited above is applicable only to a summary trial where only substance of the evidence is recorded by a Judicial Officer, whereas in the case in hand a perusal of the statements of the witnesses would show that not only

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VIRENDRA SINGH ADHIKARI 2014.11.11 13:27 I attest to the accuracy and authenticity of this document High Court Chandigarh

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CRM - M-No. 14930 of 2012

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examination-in-chief of the witnesses has been recorded in detail but also a lengthy cross examination of the witnesses was conducted by the counsel for the petitioners. Evidence in detail having been recorded in the presence of both the parties and / or in the presence of their respective counsel, no prejudice can be said to have been caused to the either party. Therefore, the lengthy detailed evidence recorded by the predecessor of the judicial Magistrate can be read for adjudicating the matter by his successor. If the facts of the present case are perused carefully, it would reveal that the entire evidence was recorded according to the procedure which is warranted in a Summons Case and not in the manner prescribed for summary trial.

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No other or further point has been urged.

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Before proceeding to adjudicate upon the point in issue, it is pertinent to point out that sub-section (3) of Section 397 of the Code bars second revision by the same person. The petitioners have brought this petition after having failed in criminal revision filed by them before the Court of Session. The instant miscellaneous petition filed by the petitioners, thus, is nothing but a second revision petition and merely by changing the nomenclature the statutory bar of sub-section (3) of Section 397 of the Code cannot be overcome and the powers under Section 482 of the code cannot be utilised for exercising the powers which are expressly barred by the provisions of sub-section (3) of Section 397 of the Code. The powers under Section 482 of the Code can be exercised only when it is necessary to make such order to give

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CRM - M-No. 14930 of 2012

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effect to any order passed under the Code or to prevent the abuse of the process of the Court or otherwise to secure the ends of justice. None of the conditions envisaged for the exercise of the powers under Section 482 of the Code are present in the case and, therefore, the inherent powers under Section 482 of the Code cannot be used. Statutory bar of sub-section (3) of Section 397 of the Code can not be overcome. If that would have been permitted, every revision facing the bar of sub-section (3) of Section 397 of the Code could be labelled as a petition under Section 482 of the Code. This view has been echoed by the Apex Court in the case of Dharampal v. Ramshri , (1993) 1 SCC 435: (1993 Cri LJ 1049), and it has been observed that "it is now, well settled that the inherent powers under Section 482 of the Code cannot be utilised for exercising the powers which are expressly barred by the Code.”

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To stress that merely by saying that the jurisdiction of the High Court for exercise of its inherent power was being invoked the statutory bar of sub-section (3) of Section 397 of the Code cannot be overcome, the Hon’ble Supreme Court of India in Rajan Kumar Machananda Vs. State of Karnataka, 1988(14) ECR 3(SC), JT1987(4)SC637, 1990Supp(1)SCC132, held as under:

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“ 2. Heard learned Counsel for the parties. The respondent State had challenged the order before the Court of Sessions when the learned Magistrate before whom the matter was proceeding directed release of the truck in favour of the appellant. The Revisional Court dismissed the petition of the State. A second Revision did not lie at the instance of the State to the High Court in

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CRM - M-No. 14930 of 2012

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view of the provisions of Section 397(3) of Cr.P.C. Obviously, to avoid this bar, the application moved by the State before the High Court was stated to be under Section 482 Cr.P.C. asking for exercise of inherent powers. In exercise of that power, the High Court has reversed the order of the Magistrate as affirmed by the Sessions Judge. The question for consideration is as to whether the bar under Section 397(3) Cr.P.C. should have been taken note of to reject the revision at the instance of the State Government or action taken by the High Court in exercise of its inherent power has to be sustained. It is not disputed by counsel appearing for the State that the move before the High Court was really on application for revision of the order of the Magistrate releasing the truck. That is exactly what is prohibited under Section 397(3) Cr.P.C. Merely by saying that the jurisdiction of the High Court for exercise of its inherent power was being invoked the statutory bar could not have been overcome. If that was to be permitted every revision application facing the bar of Section 397(3) of the Code could be labelled as one under Section 482. We are satisfied that this is a case where the High Court had no jurisdiction to entertain the revision. The appeal is allowed and we set aside the order of the High Court. The Order of the Magistrate as affirmed by the Session Judge is upheld.”

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The petition filed by the petitioners is nothing but a revision petition though the nomenclature given to it is the "miscellaneous petition” and as such it is not maintainable in view of the bar of sub-section (3) of Section 397 of the Code.

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Be that as it may, discussion to follow shall demonstrate that petitioners’ application under sub-section (2) of Section 326 of the Code praying for recording of the evidence afresh is not only misconceived but is also mischievous and a clever device to delay disposal of the criminal

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CRM - M-No. 14930 of 2012

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complaint.

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Before setting out to answer the question here-in-before posed, it would be relevant to make a short reference to the provisions contained in Section 143 of the Act which reads thus:

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" 143. Power of the 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 Section 2662 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials.

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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.

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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 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 manner provided by the said Code.

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(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.

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(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 ."

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A bare look across Section 143 of the Act would show that the

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cases filed under Section 138 of the Act are triable in a summary manner.

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Though it begins with non obstante clause carving out an exception to the

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CRM - M-No. 14930 of 2012

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provisions of the Code, sub-section (1) thereof clearly provides that all the offences under Chapter XVII of the Act shall be tried by a Judicial Magistrate of the First Class or by a Metropolitan Magistrate and the provisions of Sections 262 to 265 of the Code, as far as may be, applied to such trials. It empowers the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine not exceeding five thousand rupees. It also provides that if it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeded one year may have to be passed, he can do so after hearing the parties and recalling any witness who may have been examined and to proceed hearing or rehearing the case in the manner provided in the Code. Under this provision so far as practicable, the Magistrate is expected to conduct the trial on day to day basis until its conclusion and conclude the trial within six months from the date of filing of the complaint. It is clear from the bare look at this provision that the legislature intended to speed up the procedure in disposing of the cases under Section 138 of the Act. Broadly speaking, a summary trial is an abridged form of the regular trial and is resorted to in order to save time in trying "petty cases". It is essentially a speedy trial dispensing with unnecessary formalities or delays and giving discretion to the Magistrate to try or not to try an offence, triable summarily, in a summary manner. Section 143 of the Act empowers Court to try cases under Section 138 of the Act in a summary way and to follow the provisions of Sections 262 to 265 of the Code, as far as may be, for trying the

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CRM - M-No. 14930 of 2012

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cases under Section 138 of the Act. The phraseology "as far as may be" employed in sub-section (1) of Section 143 of the Act gives an option to the Magistrate to depart from the procedure contemplated under Sections 262 to 265 of the Code. Thus, it is not mandatory for the Magistrate to follow the procedure contemplated under Sections 262 to 265 of the code and it is left to the discretion of the Magistrate to follow the procedure of summary trial contemplated under those provisions to the extent it is possible. The second proviso to sub-section (1) of Section 143 of the Act further empowers the Magistrate in a case which is being tried in a summary way, if it appears to him, to recall any witness who may have been examined and proceed to hear or re-hear the case in the manner provided by the Code. This is an indicator that the choice is left to the Magistrate to either try the case strictly by following the procedure contemplated by Sections 262 to 265 of the Code or to adopt the procedure provided by the Code. Section 260 of the Code confers power upon any Chief Judicial Magistrate or any Metropolitan Magistrate or any Magistrate of the First Class specially empowered in this behalf by the High Court to try in a summary way all or any of the offences enumerated therein. Section 262 of the Code lays down procedure for summary trial and Sub-section (1) thereof, inter alia, prescribes that in summary trials the procedure specified in the Code for the trial of summons-case shall be followed subject to condition that no sentence of imprisonment for a term exceeding three months is passed in case of any conviction under the chapter.

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CRM - M-No. 14930 of 2012

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The manner in which record in summary trials is to be maintained is provided in Section 263 of the Code. Section 264 of the Code mentions that in every case tried summarily in which the accused does not plead guilty, the Magistrate shall record the substance of evidence and a judgment containing a brief statement of the reasons for the finding. Thus the Magistrate is not expected to record full evidence which he would have been, otherwise required to record in a regular trial and his judgment should also contain a brief statement of the reasons for the finding and not elaborate reasons which otherwise he would have been required to record in regular trials.

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Section 326 of the Code reads as under:-

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" Section 326 : Conviction or commitment on evidence partly recorded by one Magistrate and partly by another -- (1) Whenever any Judge or Magistrate, after having heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein and is succeeded by another Judge or Magistrate who has and who exercises such jurisdiction, the Judge or Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself:

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Provided that if the succeeding Judge or Magistrate is of opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interests of justice, he may re-summon any such witness and after such further examination, cross-examination and re-examination, if any, as he may permit, the witness shall be discharged.

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(2) When a case is transferred under the provisions of this Code from one Judge to another Judge or from one Magistrate to another Magistrate, the former shall be deemed to cease to exercise jurisdiction therein and to be succeeded by the later, within the meaning of Subsection (1).

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(3) Nothing in this section applies to summary trials or to cases in which proceedings have been stayed under Section 322 or in which proceedings have been submitted to a superior Magistrate

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CRM - M-No. 14930 of 2012

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under Section 325 ."

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In summary proceedings, the successor Judge or Magistrate has no authority to proceed with the trial from a stage at which his predecessor has left it because the Court does not record the entire statement of witnesses. Therefore, the Judge or the Magistrate who has recorded such substance of evidence is in a position to appreciate the evidence led before him and the successor Judge or Magistrate cannot appreciate the evidence only on the basis of evidence recorded by his predecessor. Sub-section (3)of Section 326 of the Code does not permit the Magistrate to act upon the substance of the evidence recorded by his predecessor, the obvious reason being that if succeeding Judge is permitted to rely upon the substance of the evidence recorded by his predecessor, there will be a serious prejudice to the accused and indeed, it would be difficult for a succeeding Magistrate himself to decide the matter effectively and to do substantial justice.

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It, thus, emerges that if no record as per Sections 263 and 264 of the Code has been or is being maintained by the Magistrate and the case has been or is being tried as a regular summons case and not in a summary way as contemplated under Sections 262 to 265 of the Code, it shall not be considered as a case tried summarily, though triable summarily as provided under subsection (1) of Section 143 of the Act, so as to attract the provisions of subsection (2) of Section 326 of the Code. Therefore, the evidence recorded by one Magistrate in such a case may be legally read in evidence by his successor and

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CRM - M-No. 14930 of 2012

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no de novo trial shall be necessary. It may be added that ordinarily, once the evidence within the meaning of Section 3 of the Indian Evidence Act, 1872 is recorded by the Court having jurisdiction to do so, the deposition/statements made by the witnesses would not lose its character of being evidence in judicial proceedings and can be used for adjudication of the rights of the parties. Therefore, if the Magistrate, records the evidence, as is done in regular summons case the succeeding Magistrate can act on the evidence so recorded by his predecessor or partly recorded by his predecessor and partly recorded by himself as provided in sub-section (1) of Section 326 of the Code.

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From the above discussion, the following principle broadly emerges: a case under Section 138 of the Act, which requires to be tried in a summary way as contemplated under Section 143 of the Act, is in fact, tried as regular summons case it would not come within the purview of sub-section (3) of Section 326 of the Code. In other words, if the case in substance was not tried in a summary way, though was triable summarily, and was tried as regular summons case, it need not be heard de novo and the succeeding Magistrate can follow the procedure contemplated under Section 326 of the Code. However, where a case is tried in a summary way by following the procedure contemplated by the provisions of Chapter XXI of the Code and in particular Sections 263 and 264 therein, alone is intended to be excluded from the purview of Section 326 (1) of the Code. This view finds support in Mukesh v. State of Rajasthan, 1998 Cri LJ 2439 (Rajasthan High Court); Dilip Kulkarni

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CRM - M-No. 14930 of 2012

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and Ors. v. Bahadurmal Chowdary and Sons, (2006 (1) AIR Kar R (NOC) 103) (Andhra Pradesh High Court); K. Jayachandran v. Nargeese and Anr. 1987 Cri LJ 1997 (Kerala High Court); Ranbir Yadav v. State of Bihar , (1995) 4 SCC 392 : AIR 1992 SC 1218, Bayer Crop Science (I) Ltd. v. M/s. Mittal Chemicals (P&H) , 2014(2) R.C.R.(Criminal) 585 : 2014(3) BC 460; and Shivaji Sampat Jagtap v. Rajan Hiralal Arora, (Bombay) , 2007 CriLJ 122 (Bombay High Court).

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Reverting to the case on hand, it has been recorded by both the Courts below and is not disputed by or on behalf of the petitioners that statements of the witnesses have been recorded in full; no record as per Sections 263 and 264 of the Code has been or is being maintained by the learned Magistrate; and the case has been or is being tried as a regular summons case and not in a summary way as contemplated under Sections 262 to 265 of the Code. Therefore, Nitinbhai Saevatilal Shah and Anr. Vs.

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Manubhai Manjibhai Panchal and Anr . (supra) has no application to the case and the application moved by the petitioners has been rightly rejected by the learned trial Magistrate.

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22. It also needs to be highlighted that the criminal complaint under reference was filed in the year 2001 and as observed by learned Additional Sessions Judge in order dated April 05, 2012, the petitioners have been able to delay disposal of the complaint by making frivolous applications and after dismissal of such applications by invoking the provisions of Section 397 of the

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Code. The petitioners, thus, have abused the process of law and the Court.

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23. In the consequence, I regret my disinclination to exercise the inherent powers of this Court in favour of the petitioners. The petitions, therefore, fail and are dismissed with costs amounting to twenty five thousand rupees (Rs.25,000/- only) each petition to be paid by the petitioners to the respondent(s) before the learned trial Magistrate.

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24. As disposal of the complaints has been inordinately delayed, learned trial Magistrate is expected to dispose of the same as expeditiously as possible but not later than two months from the date of receipt of a copy of this order.

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[Mahavir S. Chauhan] Judge October 27, 2014 adhikari

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M/S V.K. Dhir Hosiery Works and Anr. v. Suresh Kumar Gupta and Sons HUF

Case brief

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M/S V.K. Dhir Hosiery Works and Anr. v. Suresh Kumar Gupta and Sons HUF

Case brief

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