| Case Number | Crl.Rev.P. 478/2011 & Crl.M.A.No. 12757/2011 |
| Case Type | Criminal Revision Petition |
| Court | High Court of Delhi (India) |
| Petitioner | Ajay Jain |
| Respondent | Purushottam Nath Jain & Sons |
| Bench/Coram | Hon’ble Ms. Justice Pratibha Rani |
| Judgement Date | February 4, 2013. |
| Referred | Code of Criminal Procedure, 1973 – Sections 251, 252, 253, 254, 260, 261, 262, 263, 263(g), 264, 265, 311, 482;Negotiable instruments Act, 1881 – Sections 138, 141, 143, 143(1), 145, 145(2). |
FACTS OF THE CASE
The case came before the High Court when a Revision-Petition was filed by the petitioner (accused) impugning the order dated 27.09.2011 passed by the Trial Court dismissing his application made under Section 311 CrPC to resummon the defense witness.
Initially, the respondent, in this case, filed a complaint against the present petitioner under section 138 NI Act, alleging dishonor of a cheque issued in the name of the complainant by the accused. the Trial Court taking cognizance initiated a summons trial and accordingly, a notice under section 251 CrPC was served to accused on 28.05.2009, to which he pleaded not guilty and claimed trial.
The case was put up for Preliminary examination on 1.09.10, and after CE of complainant on 15.04.2011, the Trial Court without examining the accused statement, recorded that in view of latest case law, statement of the accused is not required, and posted for the DE on 20.05.2011.
Thereafter the accused moved application to summon a defense witness under Section 311 CrPC, after obtaining the reply from the complainant (Even though no such reply was required) the same was allowed by the Trial Court and case adjourned to 24.08.2011.
During the proceedings for defense evidence of the date 24.08.2011, the accused was in person with proxy counsel due to illness, though the witness was present, matter is passed and witness discharged without examining. Then the Trial Court while declining the prayer of the accused counsel for adjournment posted the case for final arguments on 27.09.2011.
On 27.09.2011, counsel for accused filed application under Section 311 CrPC praying for recalling the defense witness, which was dismissed by Court. At the request of counsel for accused the case was adjourned to 17.10.2011 for its final arguments.
The accused left defenseless and aggrieved filed a Criminal Revision Petition impugning the same order dated 27.09.2011 of the court. When this petition came for the hearing before the High Court on 10.0.2012, the Court found the grievance of the petitioner to be well-founded and deemed it a case requiring exercise of the inherent powers of High Court under Section 482 CrPC to secure the ends of justice.
ISSUES
- The manner in which the trial has been conducted by the Trial Court for disposing case under Section 138 NI Act.
- How without examining the accused, the case has been set straight away for defense evidence and then for final arguments?
- Why the statement of the accused was dispensed with?
- Why was the accused not questioned about defense he has to make, right from serving notice till the final arguments?
- Legality of the impugned order issued by Trial court and validity of reasons cited by the Court for dismissing plea of accused.
ANALAYSIS
Section 143 NI Act provides that the cases under Section 138 NI Act shall be tried summarily before Court of JM/MM. And as far as may be, the provisions of Sections 262 to 265 CrPC prescribes the procedure to be followed in summary trials.
The High Court upon summoning the TCR found that neither of the procedures has been complied by the Trial court in conducting trial of the case.
It is to be noted that manner in which CE has been recorded, shows that though the case should be tried summarily, was tried as a summons case, the procedure followed by Court is not of summary trial – to which according to procedure in Section 143 NI Act, if the Magistrate finds that the case be tried not summarily but as summons, shall pass order after hearing the parties and recall witnesses to hear it as summons trial. No such evidence found from TCR.
It is to be understood that the Trial Court was referring to guidelines report of the High court issued in case of Rajesh Agarwal vs. State & Anr, which was intended to guide subordinate Courts where despite the mandate of statute to be of summary trial in disposal of cases under Section 138 NI Act, still continue trying these cases as summons trial. However, the learned Trial Court have clearly missed to follow objective of guidelines in its letter and spirit
And the learned Trial Court, citing the case of Rajesh Agarwal(supra) preferring to concentrate only on para 17 of the report, has failed to record statement of the accused, and has dispensed the statement of accused without recording the same, also while examining he was not asked about what defense he has to make by the Court. Making a clear violation of provision in Section 263 CrPC- which states that every case tried summarily, the Magistrate shall enter,
Section 263(g) – the plea of the accused and his examination (if any).
The Court preferred to discharge the defense witness and close the DE. And the reasons stated by the Trial Court for dismissing the prayer of the accused under Section 311 CrPC to recall the defense witness are not supporting enough.
The court seemed hasty in proceeding with the case, and posted for final arguments without giving the accused opportunity the circumstances appearing against him rendering him defenseless before the Court.
The Hon’ble High Court after perusal of TCR has come to conclusion that not only procedure prescribed for conducting the trial was not followed, even the guidelines give by the same Court in Rajesh Agarwal’s case have been ignored by the learned Trial Court. And found the case fit for exercise of inherent powers of the High Court under Section 482 CrPC.
The petition was then disposed, quashing the order dated 15.04.2011 passed by Trial Court to the effect that statement of accused not required to be recorded and directing Court to conduct trial in accordance with procedure prescribed by law.
Case Time -line
| 27.02.2006 | Trial Court ordered for summoning accused. |
| 28.05.2009 | Summon served. |
| 01.10.2009 | Preliminary Examination conducted. |
| 15.04.2011 | Cross Examination of complainant. |
| 24.08.2011 | Put for Defense evidence. |
| 27.09.2011 | Call for final arguments. The accused filed for recall of DE. |
| 17.10.2011 | Put for final arguments. |
| 10.10.2012 | First hearing of Revision-Petition before High Court. |
| 04.02.2013 | Judgement by High Court. |
Case Cited In- Shri Naresh Jindal vs Smt. Mamta Aggarwal
Sh.G.S.Bhatia vs M/S Amba Leasing & Financing Co.
M/S. Ramjee Construction Co vs M/S. Chirag Timber Traders
CONCLUSION
This case has definitely showed the functioning of the Subordinate Courts while dealing with cases under Section 138 NI Act. How despite huge number of cases decided there still lacks proper understanding of procedure to be followed in such cases. And when such cases go for similar Revisions before the High Courts, in turn poses huge burden and is critical reason for large pendency of cases.
REFERENCES
This Article is written by Abraham Dany Diana first year student of Dr. B. R Ambedkar Law College, Andhra University, Intern at Legal Vidhiya.
0 Comments