A.P. Kumaran v. State of Kerala and Usha P.M.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 19TH DAY OF JUNE 2017/29TH JYAISHTA, 1939** ## **Crl.MC.No. 5173 of 2014 ()** **--------------------------CC.NO. 1124/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, CHERTHALA** **------------------** ## **PETITIONER/COMPLAINANT:** **------------------------------------------** **A.P.KUMARAN, S/O.PARAMESWARA PILLAI,67 YEARS OF AGE, SMITHA BHAVAN, PANANGAD P.O, ERNAKULAM.** **BY ADVS.SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA** ## **RESPONDENT(S)/STATE AND ACCUSED :** **-------------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-682 031** **2. USHA P.M., D/O.THANKAPPAN, MURIKKUCHIRAYIL HOUSE, PANAVALLY P.O, CHERTHALA TALUK, ALAPPUZHA-688 524** **R1 BY PUBLIC PROSECUTOR SRI.JESTIN MATHEW** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## **Crl.MC.No. 5173 of 2014 ()** ## **--------------------------------------** ## **APPENDIX** |**PETITIONER(S)' ANNEXURES:**|**PETITIONER(S)' ANNEXURES:**|| |---|---|---| |**-------------------------------------------**||| |**ANNEXURE A1:-**|**TRUE COPY OF THE COMPLAINT FILED BEFORE THE JUDICIAL**|| ||**FIRST CLASS MAGISTRATE COURT -II, CHERTHALA**|| ||**DATED 28/5/2008**|| |**ANNEXURE A2:-**|**CERTIFIED COPY OF THE ORDER SHEET IN CC 1124/2008 ON**|| ||**THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE**|| ||**COURT-II CHERTHALA.**|| |**RESPONDENT(S)'**|**ANNEXURES:**|**NIL**| |**----------------------------------------------**||| |||**/TRUE COPY/**| |||**P.S.TO JUDGE**| **sts** ## ALEXANDER THOMAS, J. ================== Crl.M.C.No. 5173 of 2014 ================== Dated this the 19[th] day of June, 2017 O R D E R The petitioner herein is the complainant in C.C.No. 1124/2008 on the file of the Judicial First Class Magistrate's Court-II, Cherthala, wherein the 2[nd] respondent herein is alleged to be the accused for offence punishable under Sec.138 of the Negotiable Instruments Act. The dishonoured cheque in question is for Rs. 3 lakhs. The proceedings before the trial court has commenced in the year 2008. It is pointed out that P.W-1 was examined as early as in the year 2010 and that DW-1 was also examined in the year 2012. Now by the impugned order it appears that thereafter the earlier judicial officer was transferred and new judicial officer has taken charge and in view of that, as per the impugned order dated 12.6.2014, as reflected in Anx.A-2 proceedings sheet, the learned Magistrate has ordered that since the evidence was recorded by his predecessor, it requires de novo trial and hence the case has been posted for tendering evidence in the de novo trial. This is the order that is under challenge in this Crl.M.C.. The prayers in this Crl.M.C. are as follows: - “i) to set aside the order in CC 1124/2008 on the file of the JFMC-II Cherthala dated 12.6.2014 for conduct of denovo trial evident from A-2 - ii) to direct the J.F.C.M.-1I, Cherthala to proceed with CC 1124/2008 from the stage now it reached and to direct the J.F.M.C-II Cherthala to dispose of CC 1124/2008 within time to be fixed by Crl.M.C.5173/14 - : 2 :- this Hon'ble Court;” 2. Though notice had been duly served on R-2 (accused), there is no appearance for that party. 3. Heard Sri.K.Mohanakannan, learned counsel appearing for the petitioner (complainant) and Sri.Justin Mathew, learned Prosecutor appearing for R-1 State. 4. The provisions contained in sub section (1) of Sec.143 along with two provisos thereto, of the Negotiable Instruments Act, read as follows: "Sec.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 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. xxx xxx xxx” 5. The provisions contained in Sec.326 of the Cr.P.C. read as ## follows: “Sec.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 Crl.M.C.5173/14 - : 3 :- 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: Provided that if the succeeding Judge or Magistrate] is of opinion that further examination of any of the witness 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. (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 latter, within the meaning of sub-section (1). (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 under Section 325.” 6. The Apex Court had occasion to consider the effect of bar under Sec. 326(3) on successor magistrate to record the evidence recorded by his predecessor in complaints under Sec.138 of the Negotiable Instruments Act, in the decision in J.V.Baharuni v. State of Gujarat, reported in (2014) 10 SCC 494, wherein it has been held that in a case under Sec.138 of the N.I. Act, which requires to be tried in a summary way as contemplated under Sec.143 of the N.I. Act, when in fact, was tried as regular summons case would not come within the purview of Sec. 326(3) Cr.P.C. and in other words, if the case in substance was not tried in a summary way, though was triable summarily, and was tried as a regular summons case, it need not be tried de novo and the succeeding magistrate can follow the procedure contemplated under Sec.326(1) of the Cr.P.C. and where in a case that can be tried Crl.M.C.5173/14 - : 4 :- summarily, the court, records the evidence elaborately and in verbatim and defence was given full scope to cross examine, such procedure adopted is indicative that it was not summary procedure and therefore succeeding magistrate can rely upon the evidence on record and do novo inquiry need not be conducted (see paras 36 & 37 of the above SCC report). 7. Various principles have been summarised in para 60 of the abovesaid judgment in J.V.Baharuni's case supra reported in (2014) 10 SCC 494(p.p.520-521, which reads as follows: “60. However, to summarise and answer the issues raised herein, the following directions are issued for the courts seized of with similar cases: 60.1. All the subordinate courts must make an endeavour to expedite the hearing of cases in a time-bound manner which in turn will restore the confidence of the common man in the justice-delivery system. When law expects something to be done within prescribed timelimit, some efforts are required to be made to obey the mandate of law. 60.2. The learned Magistrate has the discretion under Section 143 of the NI Act either to follow a summary trial or summons trial. In case the Magistrate wants to conduct a summons trial, he should record the reasons after hearing the parties and proceed with the trial in the manner provided under the second proviso to Section 143 of the NI Act. Such reasons should necessarily be recorded by the trial court so that further litigation arraigning the mode of trial can be avoided. 60.3. The learned Judicial Magistrate should make all possible attempts to encourage compounding of offence at an early stage of litigation. In a prosecution under the Negotiable Instruments Act, the compensatory aspect of remedy must be given priority over the punitive aspect. 60.4. All the subordinate courts should follow the directives of the Supreme Court issued in several cases scrupulously for effective conduct of trials and speedy disposal of cases. 60.5. Remitting the matter for de novo trial should be exercised as a last resort and should be used sparingly when there is grave miscarriage of justice in the light of illegality, irregularity, incompetence or any other defect which cannot be cured at an appellate stage. The appellate court should be very cautious and exercise the discretion judiciously while remanding the matter for de novo trial. 60.6. 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 Crl.M.C.5173/14 - : 5 :- 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. Thus it can be seen from a mere reading of the directions given in sub para 6 of para 60 of the abovesaid judgment of the Apex Court that 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. That 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, etc. The petitioner has made available copies of the depositions before this Court and the trial court has also given a detailed report regarding the various stages of the cases and copies of the order sheet, etc. It is seen that the predecessor judicial officer has recorded in detail the verbatim evidence tendered in depositions of the witnesses in their examination and it was not merely substance of the evidence that was recorded. 8. Therefore, the impugned orders passed by the successor magistrate on 12.6.2014 appears to be without due application of mind Crl.M.C.5173/14 - : 6 :- and is not proper and correct. In this view of the matter, the impugned order dated 12.6.2014 passed by the learned Magistrate ordering that the evidence has to be again recorded in de novo trial, etc. will stand set aside and the learned Magistrate will recommence the proceedings from the stage where it was stopped by the predecessor magistrate. Since the matter has been pending for very long period since the year 2008, the learned Magistrate will ensure that all earnest steps are taken for final disposal of the case without much delay, at any rate, within a period of four months from the date of production of a certified copy of this order. With these observations and directions, the aforecaptioned Crl.M.C. stands finally disposed of. Sd/sdk+ ALEXANDER THOMAS, JUDGE ///True Copy/// P.S. to Judge