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Vikas Sharma vs Vishant Bali R on 8 December, 2020

Date of Judgment :-8th December ,2020

Court :-                      HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CaseType :-               Cr. MMO No. 359 of 2019

Appellant :-               Vikas Sharma

Respondent:-            Vishant Bali

Bench :-                      THE HONOURABLE MR.JUSTICE VIVEK SINGH THAKUR

Referred:-                   Sections 143,144, 145, 145(2),146,147 of Negotiable Instrument Act (NI Act), 251,262 of Cr.P.C.

FACTS OF THE CASE

In this case, the issue revolves around the interpretation of Section 145(2) of the Negotiable Instruments Act (NI Act). The court has previously determined that the words “may” and “shall” used in this section refer to different parties involved in the case, namely the court and the prosecution or accused. The court has held that if the prosecution or accused makes an application, the court is obligated to summon the person who gave evidence on affidavit in accordance with Section 145(1) of the NI Act, without any discretion. The legislature’s intention is clear in using different words for different situations, making it mandatory for the court to summon and examine such a person if an application is made by the prosecution or accused. The court’s failure to consider the importance of a fair trial for the accused and the mandatory nature of the provision in Section 145(2) is seen as an illegality in this case. Additionally, there is an issue with the timing of the application under Section 145 of the NI Act, as it was entertained at the wrong stage. The application should have been filed after the closure of evidence of the complainant, when they have had the opportunity to present their case. The court highlights that this issue has been previously addressed, but the magistrate’s repeated mistake warrants a discussion of the matter again.

The petitioner/accused was summoned by the trial court based on statements and affidavit filed by the complainant/respondent. The petitioner appeared in court on a specified date. The trial court then granted time to the petitioner to file an application under Section 145 of the Negotiable Instrument Act. However, the application was dismissed on April 8, 2019, rejecting the petitioner’s request to summon and examine witnesses. The petitioner argues that the court does not have the discretion to refuse to summon and examine a person whose affidavit has been filed. The petitioner cites a previous judgment by the Apex Court to support this argument. The trial judge also discussed the merits of the case based on the petitioner’s plea, despite the fact that it was not necessary at that stage and in that specific application. Additionally, it is noted that the trial court granted time to the accused to file the application under Section 145 without giving an opportunity to the complainant to file or lead any further evidence. This is viewed as a mistake of law by the trial court.

JUDGMENT

The Supreme Court in the Mandvi Cooperative Bank Ltd. case has observed that Sections 143 to 147 of the Negotiable Instruments Act provide a special code for the trial of offences under Chapter XVII of the Act. These sections were inserted to expedite the trial process and prevent delays, while also ensuring the accused’s right to a fair trial is not compromised. The court has emphasized that the right to a fair trial should never be ignored, especially when it results in the curtailment of personal liberty.

In the Meters and Instruments Private Ltd. vs. Kanchan Mehta case, the Supreme Court discussed the object of introducing Chapter XVII in the Negotiable Instruments Act and the procedure to be followed by the magistrate in such cases. The court also referred to the Omparkash Shivprakash vs. K.I. Kuriakose case, which dealt with a similar provision in the Prevention of Food Adulteration Act, and held that in summary trials, the trial of the offence begins when the magistrate asks the accused whether they plead guilty or not, as stated in Section 251 of the Code of Criminal Procedure (Cr.P.C.). Evidence can only be adduced after recording the plea of the accused.

Similarly, Section 143 of the Negotiable Instruments Act empowers the court to try cases summarily by applying Sections 262 to 265 of the Cr.P.C., as far as may be applicable. Section 262 of the Cr.P.C. pertains to the procedure for the trial of summons cases.

Upon examining the record of the trial court, it is apparent that the trial judge discussed the merits of the case based on the plea taken by the accused in the application, even though there was no occasion to do so at this stage, especially in an application filed under Section 145(2) of the Negotiable Instruments Act.

Furthermore, it is observed that on August 27, 2018, upon the accused’s request, the magistrate granted time to the accused to file an application under Section 145 of the Negotiable Instruments Act without resorting to the substance of the accusation, issuing a Notice of Accusation, or framing the charge. Additionally, the magistrate did not provide an opportunity to the complainant to file or

Based on the information provided, it seems that the application in question should not have been filed at the wrong stage. If it was mistakenly filed at the wrong stage, it should have been kept pending for consideration at the appropriate stage. It is important to ensure that the accused’s right to a fair trial is not compromised in any way. 

The Supreme Court has observed that Sections 143 to 147 of the Negotiable Instruments Act (NI Act) provide a special code for the trial of offenses under Chapter XVII of the Act

REFERENCES

https://indiankanoon.org

This Article is written by Anshika Srivastava of Shri Ramswaroop Memorial University, Intern at Legal Vidhiya.


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