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CHEQUE BOUNS CASE

ALL CHEQUE BOUNCE CASES SHOULD BE TRIED IN A SUMMARY MANNER RATHER THAN ISUMMONS MANNER = It is brought to the notice of this Court that Magistrates throughout the State quite often adopt the summons case procedure without arriving at a conscious decision thereon. Towards avoiding such mishaps in future, this Court directs a copy of this order to be forwarded to all the District Courts and Metropolitan Magistrate/Judicial Magistrate Courts. The Magistrates shall henceforth effect compliance in keeping with the observations herein above made and it shall be the duty of the District Judge to ensure such compliance. 8. Considering that adoption of summons case procedure affords better opportunity to the accused to make out his defence and towards avoiding unnecessary upheavel, this Court directs that the present order shall be complied with in respect of all fresh cases filed under Section 138 of Negotiable Instruments Act.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Chennai high court view taken by myself in a N...

Chennai high court view taken by myself in a Nikon D 200 camera. (Photo credit: Wikipedia)

Dated: 17/02/2011

Coram
The Honourable Mr. Justice C.T.SELVAM

Crl.RC.(MD).No.2 of 2011

Swaminatha Pillai .. Petitioner

vs.

Mr.A.Senthil Kumar .. Respondent

Prayer

Criminal Revision Petition filed under Section 397 r/w 401 of Criminal
Procedure Code to call for the entire records and set aside the order passed in
Cr.M.P.No.5538 of 2010 in C.C.No.4 of 2006, on the file of the learned Judicial
Magistrate No.III, Trichy against the petitioner.

!For Petitioner … Mr.T.Senthil Kumar
^For Respondent … Mr.E.S.Shivashankkaren

***

:ORDER

The petitioner has moved the learned Judicial Magistrate No.III, Trichy in
Cr.M.P.No.5538 of 2010 in C.C.No.4 of 2006 seeking that the case wherein the
petitioner stands accused of offence under Section 138 of the Negotiable
Instruments Act be proceeded with by following the summary trial procedure, as
provided for under Section 143 of the Negotiable Instruments Act.

2. The lower Court has held Section 143 of the Negotiable Instruments Act
not to be mandatory, since the Section only informs that the procedure of
Sections 262 to 265 of the Criminal Procedure Code is to apply to such trials
“as far as may be”. It has also found that the petitioner was trying to
protract proceedings as the said plea was not raised at an early stage. It found
no irregularity in adopting the summons case procedure and dismissed the
petition. It is against such order of dismissal that the present Criminal
Revision petition has been filed.

3. Heard.

4. To appreciate the contentions made on behalf of the petitioner, it
would be appropriate to reproduce Section 143 of the Negotiable Instruments Act:
“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
and 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.”
5. On a plain reading, it may be seen that the Magistrate is required to
follow the summary trial procedure envisaged under Sections 262 to 265 Cr.P.C.
When such procedure has been followed, the Magistrate may impose a sentence of
imprisonment only for a period upto one year and the fine, if any imposed by the
Magistrate, shall not exceed Rs.5,000/-. Section 138 of the Negotiable
Instruments Act provides for punishment of imprisonment upto a period of two
years and for an imposition of fine which may extend to twice the amount of the
cheque. The sentence may either be of imprisonment or of fine or of both. The
restrictions placed on the sentence that may be imposed under the first proviso
to Section 143 of the Negotiable Instruments Act is lifted by the further
proviso which informs that where it appears to the Magistrate that the case is
one in which a sentence of imprisonment of term exceeding one year is to be
passed, or it otherwise appears for any other reason that it would be
undesirable to try the case summarily, the Magistrate shall after hearing the
parties, record an order to that effect and thereafter follow the procedure
informed in the said proviso. From the wording of Section 143 of the Negotiable
Instruments Act and the two provisos thereto, it may be seen that the decision
to avoid the summary trial procedure and follow that contemplated for summons
cases is to be a conscious one. Such conscious decision may be arrived at
either at the commencement of or in the course of a summary trial. Thus the
decision to opt for the procedure prescribed for a summons case must follow the
commencement of the case by adopting the summary trial procedure. In the
decision reported in 2005(1) T.N.L.R.6(Mad), Madras High Court in
G.Chandraskaran Vs. C.R.Umapathy, this Court has observed as follows:
“15. It is brought to the notice of this Court that the learned Judicial
Magistrate in some districts take the complaints filed under Section 138 of
Negotiable Instruments Act as Calendar Cases while some others take them on file
as Summary Trial Cases. In this context, Negotiable Instruments Amendment Act
2002 has to be taken note of and followed in letter and spirit. Section 143
which has been inserted by the Amendment Act of 2002 stipulates that
notwithstanding anything contained in the Code of Criminal procedure, all
offences contained under Chapter XVII of Negotiable Instruments Act dealing with
dishonour of cheques for insufficiency etc. of funds in the accounts, shall be
tried by a Judicial Magistrate and the provisions of Sections 262 to 265,
Cr.P.C. prescribing procedure for summary trials, shall apply to such trials and
it shall be lawful for a Magistrate to pass sentence of imprisonment for a term
not exceeding one year and an amount of fine (not) exceeding Rs.5,000/- and it
is further provided that in the course of a summary trial, if it appears to a
Magistrate that the nature of the case requires passing of a sentence of
imprisonment, exceeding one year, the Magistrate (may), after hearing the
parties, record an order to that effect and thereafter recall any witness and
proceed to hear or rehear the case in the manner provided in Criminal Procedure
Code.
16. Even though the case relating to an offence under Section 138 of Negotiable
Instruments Act is a summons case, it has to be tried summarily and Sections 262
to 265, Cr.P.C. shall apply. In the course of summary trial, if the nature of
the case is such that a sentence of imprisonment exceeding one year may have to
be passed or for any other reason, it is undesirable to try the cases summarily,
then it is always open to the Magistrate to hear the parties and record an order
to that effect and thereafter recall any witness and proceed to hear or rehear
the case as per the procedure in trial of summons cases.”

6. This Court holds that it is incumbent on all Magistrates to commence
proceedings in respect of offences under Section 138 of Negotiable Instruments
Act by adopting summary trial procedure contemplated under Section 262 of
Criminal Procedure Code. Once so having commenced, the Magistrate may either on
his own motion or on that of the parties, hear the parties and pass a reasoned
order on which of the two courses viz., that of summary under Chapter XXI CrPC
or of that prescribed for summons cases under Chapter XX CrPC is to be adopted.
What is sought to be emphasized by this Court is that the adoption of the
procedure contemplated for a summons case should be the result of a conscious
decision of the Court and not mere happen chance.

7. It is brought to the notice of this Court that Magistrates throughout
the State quite often adopt the summons case procedure without arriving at a
conscious decision thereon. Towards avoiding such mishaps in future, this Court
directs a copy of this order to be forwarded to all the District Courts and
Metropolitan Magistrate/Judicial Magistrate Courts. The Magistrates shall
henceforth effect compliance in keeping with the observations herein above made
and it shall be the duty of the District Judge to ensure such compliance.

8. Considering that adoption of summons case procedure affords better
opportunity to the accused to make out his defence and towards avoiding
unnecessary upheavel, this Court directs that the present order shall be
complied with in respect of all fresh cases filed under Section 138 of
Negotiable Instruments Act.

9. Reverting to the case on hand, the fair submission made by the learned
Counsel for the petitioner is that the prosecution evidence stands recorded by
following the procedure for summons cases and that the matter stands at the
stage of defence evidence. He would undertake that the petitioner/accused would
now not insist on commencement of the case by adoption of summary trial
procedure and that the case may proceed to its logical end towards which purpose
the petitioner would produce the evidence, if any, on his side within a period
of one month from the date of receipt of a copy of this order. The learned
Judicial Magistrate No.III, Trichy is directed to dispose of C.C.No.4 of 2006
within a period of three months from the date of receipt of a copy of this
order.

10. With the above directions, this petition is disposed of.

ssl

To
The Judicial Magistrate No.III, Trichy

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