# J.V. BAHARUNI & ANR v. STATE OF GUJARAT & ANR

- **Citation:** [2014] 10 S.C.R. 1061
- **Court:** Supreme Court of India
- **Decided:** 2014-10-16
- **Case number:** Criminal Appeal No. 2221 of 2014
- **Bench:** Ranjana Prakash Desai, N.V. Ramana
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/j-v-baharuni-anr-v-state-of-gujarat-anr-29485
- **Pages:** 39

## Headnote

Negotiable Instruments Act, 1881:
A
B
s.138 rlw s.143 - Acquittal by Magistrate - High Court c
remanding the cases to Magistrate for de novo trial, as
evidence was recorded by one Magistrate and conviction was
recorded by his successor-A case u/s 138 of N.I. Act, which
requires to be tried in a summary way as contemplated uls
143 of the Act, when in fact, was tried as regular summons
0
case it would not come within the purview of s.326 (3) of the
Code and, as such, it need not be heard de novo and the
succeeding Magistrate can follow the procedure contemplated
u/s 326 (1) of the Code- In the cases on hand, without strong,
cogent, unimpeachable evidence on record that cases were
E
tried 'summarily' but not as regular trial, High Court gravely
erred in remanding them to trial court for a de novo trial -
Impugned judgments of High Court are set aside and matters
remanded to it for consideration on merits.
Code of Criminal Procedure, 1973:
F
1 s.326(3) of the Code, rlw s.143 of NI Act- De novo trial
in cases arising out of s. 138, NI Act -
A de novo trial should
be the last resort and that too only when such a course
becomes so desperately indispensable -
It should be limited
G
to the extreme exigency to avert "a failure of justice" -
Any
omission or even illegality in the procedure which does not
affect the core of the case is not a ground for ordering a de
novo trial -
The ratio in Nitinbhai must not be followed
1061
H
1062
SUPREME COURT REPORTS
[2014] 10 S.C.R.
A mechanically to remand matters to trial courts for de novo trial
- There should be proper application of judicial mind and
evidence on record must be thoroughly perused before
arriving at any conclusion with regard to mode of trial -
Directions issued for courts seized off with similar cases -
B Administration of criminal justice.
Administration of justice
Criminal justice - 'Speedy trial' and 'fair trial' - Explained.
c
Allowing the appeals, the Court
HELD: 1.1. Sub-s. (1) of s.143 of the N.I. Act makes it ·
clear that all offences under Chapter XVII of the N.I. Act
shall be tried by the Magistrate 'summarily' applying, as
far as may be, provisions of ss. 262 to 265 of Cr.P.C. SubD s. (2) mandates that so far as practicable, the trial has to
be conducted on a day to day basis until its conclusion.
An analysis ·of s.143 brings out that the Magistrate,
initially, should try the case 'summarily' if he is of the
opinion that he is not going to pass sentence of
E imprisonment not exceeding one year and fine of
Rs.5,0001-. In case during the course of trial, if the
Magistrate forms a different opinion that in the
circumstances of the case, he may order a sentence of a
term exceeding one year, or for any other reason it is
F undesirable to try the case summarily, he must record the
reasons for doing so and go for a 'regular trial'. The
second proviso to sub-s. (1) of s.143, gives discretion to
the Magistrate to conduct the case other than in summary
G
manner. [para 25-26] (1077-B, E-H]
1.2. In Nitinbhai, the case was established as being
decided 'summarily' whereas in the instant cases, no
such independent inquiry has been undertaken by the
High Court to arrive at a just conclusion whether the
H cases were tried "summarily" or in a "regular way". On
J.V. BAHARUNI & ANR. v. STATE OF GUJARAT
1063
the other hand, the trial indicates all trappings of regular
A
trial and, as such, cannot simply be termed as "summary
trial". [para 32-34]
Nitinbhai Saevatilal Shah Vs. Manubhai Manjibhai
Panchal 2011 (10) SCR 804 = AIR 2011 SC 3076 -
B
distinguished.
1.3. In the instant cases, Magistrate has not
specifically mentioned that the trial was conducted as
summons case or summary case. Thus, the High Court
has not applied its mind independently by thoroughly
C
examining the records about the procedure followed in
these cases by the Magistrate. If the case in substance
was not tried in a summary way, though was triable
summarily, and was tried as a summons case, it need not
be heard de nov

## Text

_Characters 0–39,739 of 73,138. This is a partial read: ask again with offset=39739 for what follows._

[2014] 10 S.C.R. 106·1
J.V. BAHARUNI & ANR.
v.
STATE OF GUJARAT & ANR.
(Criminal Appeal No. 2221 of 2014)
OCTOBER 16, 2014
[RANJANA PRAKASH DESAI AND N.V. RAMANA, JJ.)
Negotiable Instruments Act, 1881:
A
B
s.138 rlw s.143 - Acquittal by Magistrate - High Court c
remanding the cases to Magistrate for de novo trial, as
evidence was recorded by one Magistrate and conviction was
recorded by his successor-A case u/s 138 of N.I. Act, which
requires to be tried in a summary way as contemplated uls
143 of the Act, when in fact, was tried as regular summons
0
case it would not come within the purview of s.326 (3) of the
Code and, as such, it need not be heard de novo and the
succeeding Magistrate can follow the procedure contemplated
u/s 326 (1) of the Code- In the cases on hand, without strong,
cogent, unimpeachable evidence on record that cases were
E
tried 'summarily' but not as regular trial, High Court gravely
erred in remanding them to trial court for a de novo trial -
Impugned judgments of High Court are set aside and matters
remanded to it for consideration on merits.
Code of Criminal Procedure, 1973:
F
1 s.326(3) of the Code, rlw s.143 of NI Act- De novo trial
in cases arising out of s. 138, NI Act -
A de novo trial should
be the last resort and that too only when such a course
becomes so desperately indispensable -
It should be limited
G
to the extreme exigency to avert "a failure of justice" -
Any
omission or even illegality in the procedure which does not
affect the core of the case is not a ground for ordering a de
novo trial -
The ratio in Nitinbhai must not be followed
1061
H
1062
SUPREME COURT REPORTS
[2014] 10 S.C.R.
A mechanically to remand matters to trial courts for de novo trial
- There should be proper application of judicial mind and
evidence on record must be thoroughly perused before
arriving at any conclusion with regard to mode of trial -
Directions issued for courts seized off with similar cases -
B Administration of criminal justice.
Administration of justice
Criminal justice - 'Speedy trial' and 'fair trial' - Explained.
c
Allowing the appeals, the Court
HELD: 1.1. Sub-s. (1) of s.143 of the N.I. Act makes it ·
clear that all offences under Chapter XVII of the N.I. Act
shall be tried by the Magistrate 'summarily' applying, as
far as may be, provisions of ss. 262 to 265 of Cr.P.C. SubD s. (2) mandates that so far as practicable, the trial has to
be conducted on a day to day basis until its conclusion.
An analysis ·of s.143 brings out that the Magistrate,
initially, should try the case 'summarily' if he is of the
opinion that he is not going to pass sentence of
E imprisonment not exceeding one year and fine of
Rs.5,0001-. In case during the course of trial, if the
Magistrate forms a different opinion that in the
circumstances of the case, he may order a sentence of a
term exceeding one year, or for any other reason it is
F undesirable to try the case summarily, he must record the
reasons for doing so and go for a 'regular trial'. The
second proviso to sub-s. (1) of s.143, gives discretion to
the Magistrate to conduct the case other than in summary
G
manner. [para 25-26] (1077-B, E-H]
1.2. In Nitinbhai, the case was established as being
decided 'summarily' whereas in the instant cases, no
such independent inquiry has been undertaken by the
High Court to arrive at a just conclusion whether the
H cases were tried "summarily" or in a "regular way". On
J.V. BAHARUNI & ANR. v. STATE OF GUJARAT
1063
the other hand, the trial indicates all trappings of regular
A
trial and, as such, cannot simply be termed as "summary
trial". [para 32-34]
Nitinbhai Saevatilal Shah Vs. Manubhai Manjibhai
Panchal 2011 (10) SCR 804 = AIR 2011 SC 3076 -
B
distinguished.
1.3. In the instant cases, Magistrate has not
specifically mentioned that the trial was conducted as
summons case or summary case. Thus, the High Court
has not applied its mind independently by thoroughly
C
examining the records about the procedure followed in
these cases by the Magistrate. If the case in substance
was not tried in a summary way, though was triable
summarily, and was tried as a summons case, it need not
be heard de novo and the succeeding Magistrate can
D
follow the procedure contemplated u/s 326 (1) of the
Code. [para 35-37] [1086-G; 1087-E-H; 1088-A]
Ramilaben Trikam/al Shah vs. Tube and Allied Products
& Ors. 2007 ALLMR (Cri) 1637 (Born); A. Krishna Reddy vs.
State & Anr. 1999 (6) ALO 279; Shivaji Sampat Jagtap Vs.
Rajan Hirata/ Arora & Anr. 2007 CriLJ 122; Tripati Vyas Vs.
State of Rajasthan 2014 (1) Crimes 46 - approved
Bhaskar @ Prabaskar & Ors. Vs. State represented by
Inspector of Police, Vol/or Ta/uk Police Station, Ve/lore (1999)
8 sec 551 - referred to.
J
1.4. Thus, there is patent illegality in the approach
undertaken by the High Court in remanding the matter for
E
F
a de novo trial mechanically on the ground of change of G
Magistrate, without proper appreciation of the material
before it. The impugned judgments passed by the High
Court are set aside and the matters are remanded to the
High Court for consideration on merits. [para 43 and 64]
[1090-H; 1091-A; 1099-C]
H
1064
SUPREME COURT REPORTS
[2014] 10 S.C.R.
A
Mohd. Hussain @ Ju/fikar Vs. State (Govt. of NCT of
B
Delhi) 2012 (10) SCR 480 = (2012) 9 SCC 408, State of MP.
Vs. Bhooraji & Ors. 2001(2) Suppl. SCR 128 = (2001) 7 SCC
679 and Ganesha v. Sharanappa & Anr.2013 (12) SCR 400
= (2014) 1 sec 87 - relied on.
Bharati Tamang Vs. Union of India and Ors.2014 CriLJ
156; Babubhai Vs. State of Gujarat and Ors. 2010 (10)
SCR 651 = (2010) 12 SCC 254 Mehsana Nagrik Sahkari
Bank Ltd. Vs. Shreeji Cab Co. & Ors. Etc. 2014 CriLJ 1953;
C Satyajit Banerjee Vs. State of W.B. 2004 (6) Suppl.
SCR 294 = (2005) 1 SCC 115; Rajesh Agarwal Vs. State &
Anr. 171(2010) DLT 51- referred to
2.1. 'Speedy trial' and 'fair trial' to a person accused
of a crime are integral part of Art. 21 of the Constitution
D of India. There is, however, qualitative difference between
the right to speedy trial and the accused's right of fair trial.
Unlike the accused's right of fair trial, deprivation of the
right to speedy trial does not per se prejudice the
accused in defending himself. Speedy trial secures rights
E to an accused but it does not preclude the rights of
public justice. The nature and gravity of crime, persons
involved, social impact and societal needs must be
weighed along with the right of the accused to speedy
trial and if the balance tilts in favour of the former the long
F delay in conclusion of criminal trial should not operate
against the continuation of prosecution and if the right
of accused in the facts and circumstances of the case
and exigencies of situation tilts the balance in his favour,
the prosecution may be brought to an end. These
principles must apply as well when the appellate Court
G is confronted with the question whether or not retrial of
an accused should be ordered. [para 49) [1092-G; 1093·
A·D]
Mohd. Hussain@ Julfikar Ali Vs. State of Delhi AIR 2013
H SC 3860; Abdul Rehman Antulay & Ors. Vs. R.S. Nayak &
J.V. BAHARUNI & ANR. v. STATE OF GUJARAT
1065
Anr. 1991 (3) Suppl. SCR 325 = (1992) 1 SCC 225
A
Hussainara Khatoon & Ors. (I) Vs. Home Secretary, State of
Bihar 1979 (3) SCR 169 = (1980) 1 SCC 81, Hussainara
Khatoon & Ors. (Ill) Vs. Home Secretary, State of Bihar, Patna
(1980) 1 SCC 93, Hussainara Khatoon & Ors. (IV) Vs. Home
Secretary, State of Bihar, Patna 1979 (3) SCR 532 = (1980)
B
1 SCC 98 and Raghubir Singh & Ors. Vs. State of Bihar 1986
(3) SCR 802 = (1986) 4 SCC 481 n Mohd. Hussain Vs. State
(Govt. of NCT of Delhi), 2012 (10) SCR 480 = (2012) 9 SCC
408 - referred to.
· 2.2. A de novo trial should be the last resort and that C
too only when such a course becomes so desperately
indispensable. It should be limited to the extreme
exigency to avert "a failure of justice". Any omission or
even the illegality in the procedure which does not affect
the core of the case is not a ground for ordering a de
D
novo trial.The ratio in Nitinbhai must not be followed
mechanically to remand matters to trial courts for de
novo trial. There should be proper application of judicial
mind and evidence on record must be thoroughly
perused before arriving at any conclusion with regard to
E
mode of trial. Directions are issued for the courts seized
off with similar cases. [para 58, 60 and 61] [1095-G; 1096H; 1097-A, B]
State of M.P. Vs. Bhooraji 2001 (2) Suppl. SCR 128 = F
(2001) 7 sec 679 - relied on.
2.3. It is directed that all the Criminal Courts in the
country dealing with cases falling uls138 of the N.I. Act
should follow the procedure discussed in the instant
judgment for speedy and expeditious disposal of cases
G
as per the purport of the Act. [para 62] [1098-F]
Indian Bank Association & Ors. Vs. Union of India & Ors.
(2014) 5 SCC 590; Pratibha Pandurang Salvi & Ors. Vs. State
of Maharashtra & Anr. 2010 Crl.L.J. 730; Kishore Pa/lei Vs.
H
1066
SUPREME COURT REPORTS
[2014] 10 S.C.R.
A Aruna Kumar Panda 2013 (I) OLR 1005, Mandvi Cooperative
Bank Ltd. Vs. Nimesh B. Thakore 2010 (1) SCR 219 = (2010)
3 sec 83 - cited.
Case Law Reference:
B
2011 (10) SCR 804
distinguished Para 5
2014 CriLJ 1953
referred to
para 17
(2014) 5 sec 590
cited
para 18
c
2010 Crl.L.J. 730
cited
para 20
2013 (I) OLR 1005
cited
para 20
2010 (1) SCR 219
cited
para 22
D
2007 ALLMR (Cri) 1637 (Born) approved
para 37
1999 (6) ALO 279
approved
para 38
(1999) 8 sec 551
referred to
para 39
2007 CriLJ 122
approved
para 40
E
2014 (1) Crimes 46
approved
para 42
2014 CriLJ 156
referred to
para 45
2010 (10) SCR 651
referred to
para 46
F
2012 (10) SCR 480
relied on
para 47
2001 (2) Suppl. SCR 128
relied on
para 47
2013 (12) SCR 400
relied on
para 47
AIR 2013 SC 3860
referred to
Para 50
G
1991 (3) Suppl. SCR 325
referred to
Para 50
1979 (3) SCR 169
referred to
Para 50
(1980) 1 sec 93
referred to
Para 50
H
1979 (3) SCR 532
referred to
Para 50
J.V. BAHARUNI & ANR. v. STATE OF GUJARAT
1067
1986 (3) SCR 802
referred to
Para 50
A
2012 (10) SCR 480
referred to
Para 50
2004 (6) Suppl. SCR294
referred to
Para 53
2001 (2) Suppl. SCR 128
relied on
para 58
B
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 2221 of 2014.
From the Judgment & Order dated 07 .03.2012 of the High
Court of Gujarat at Ahmedabad in Criminal Appeal No. 462 of c
2006.
WITH
Criminal Appeal Nos. 2222 & 2223 of 2014.
$ushil Karanjakar, Aniruddha P. Mayee, Charudatta
Mahindrakar, A. Selvin Raja, Haresh Raichura for the
Appellants.
D
Kunal Verma, Hemantika Wahi, Preeti Bhardwaj, Puja
Singh, Vimal Chandra S. Dave, Chinmoy Khaladkar, Padhyaru,
E
Sayooj Mohandas M., for the Respondents.
The Judgment of the Court was delivered by
N.V. RAMANA, J. 1. Leave granted.
F
2. The undisputed facts of the appeal arising out of S.L.P.
(Crl.) No. 5623 of 2012 are that appellant No. 2 is the owner
of appellant No. 1 Company. The respondent No. 2, who is in
the business of manufacture, process and marketing of
petroleum products, has a 'Company Owned Company
G
Operated' retail outlet at Village Gadu, Maliya Hatina Taluq,
District Junagadh, Gujarat. Appellants entered into a contract
with the Respondent No. 2 Corporation for performing various
contractual jobs. As per the terms of the contract, the appellants
were required to undertake the contracted jobs and to deposit
H
1068
SUPREME COURT REPORTS
[2014] 10 S.C.R.
A the money out of sale proceeds on a daily basis in the State
Bank of India, Veraval Branch. The business dealings between
the parties were going on since 1996 and in terms of the
contract appellants furnished to the Respondent No. 2, two
Cheques bearing Nos. 884572 and 884574, dated 24th June,
8 2000 for Rs.10 lakhs and Rs.25 lakhs, respectively. When the
cheques were presented for realization, they bounced with the
endorsement "not arranged for". Hence, respondent No. 2
initiated criminal proceedings under Section 138 of the
Negotiable Instruments Act, 1881 (for short 'the N.I. Act')
c against the appellants and filed Criminal Complaint No. 2131
of 2000.
3. Before the Trial Court it was argued on behalf of
Respondent No.2-Corporation that the cheques in question
were issued by the appellants to discharge their part liability
D for clearing the dues whereas the case of the appellants was
that there were no dues payable to the Respondent Corporation
and the Cheques were taken by the complainant-Corporation
as 'guarantee' and misused the same.
E
4. The Trial Court acquitted the appellant No. 2-accused
under Section 255(1) of the Criminal Procedure Code (Cr.P.C.)
holding that considering the facts and circumstances and taking
into account the evidence and the settled principles of law,
complainant has failed to prove the charge against the accused
F and under the circumstances, it is not possible to hold the
accused guilty for the offence punishable under Section 138 of
the Act.
5. Aggrieved by the judgment of the learned Trial Judge,
the respondent No. 2-complainant challenged it in an appeal
G before the High Court of Gujarat under Section 378, Cr.P.C. It
was contended before the High Court on behalf of the
complainant-Corporation that the evidence was recorded by
one Magistrate and relying on the same evidence, his successor
Magistrate delivered the judgment. Therefore, the trial was
H vitiated as the case was tried 'summarily' under Section 143
J.V. BAHARUNI & ANR. v. STATE OF GUJARAT
1069
[N.V. RAMANA, J.]
of the N.I. Act, and the successor Magistrate could not have
A
relied upon the evidence recorded by his predecessor. Placing
reliance on this Court's decision in Nitinbhai Saevatila/ Shah
Vs. Manubhai Manjibhai Panchal AIR 2011 SC 3076, the
complainant submitted that the matter be remanded to the Trial
Court for a de novo trial,
B
6. The High Court observed that the learned Magistrate
who delivered the judgment was not in a position to appreciate
the evidence properly and decide the matter effectively to do
substantial justice as he formed the opinion relying upon the
C
evidence recorded by his predecessor. It, therefore, caused
serious prejudice to the complainant as an order of acquittal
was passed. Hence, the High Court allowed the appeal and
remanded the matter to the Trial Court for a fresh trial in
accordance with law after giving opportunity to the parties.
D
7. Dissatisfied with the High Court's judgment, the
accused-appellants assailed it in appeal before this Court. On
6th August, 2012, this Court while issuing notice, stayed
proceedings going on before the learned Magistrate in
pursuance of the remand order passed by the High Court.
E
8. The brief facts of S.L.P. (Crl.) No. 3332 of 2012 are that
at the relevant time, the complainant-Jayesh Thakker was the
Manager of Respondent No.1 firm (D.M. Finance). Appellant
Nos. 2 to 5 were Directors of the Appellant No. 1 Company
which runs the business of proteins. They entered into a
transaction with the Respondent No. 1 firm for purchase of
castor stocks. It is alleged that the Appellant Nos. 2 to 5 had
purchased the stock of castor seeds and as per the statement
F
of account, the appellants paid only Rs.28,66,677/- and an
amount of Rs.41,89,364/- was outstanding. The appellants,
G
therefore, issued three cheques bearing No.585977 dated
27.6.2001 for Rs.3,00,000/, cheque No. 585979 for
Rs.2,00,000/- and cheque No. 585980 for Rs.2,00,000/- drawn
on Laxmi Vilas Bank Ltd., Gondal Road, Rajkot towards part
H
1070
SUPREME COURT REPORTS
[2014] 10 S.C.R.
A payment. When these cheques were presented for realization,
they were dishonoured by the Bank with endorsement
"insufficient funds". Respondent No. 1 issued notice dated
10.7.2001 to the appellants and upon their failure to obey the
notice, he filed a Complaint under Section 138 of the N.I. Act.
B
9. Before the Trial Court, the appellants denied having
committed the offence and the complainant has adduced
evidence. By an order dated 30.5.2009 the Trial Court
acquitted the accused-appellants. The Respondent No. 1C complainant challenged the acquittal order in an appeal before
the High Court of Gujarat under Section 378, Cr.P.C.
10. It was mainly contended by the complainant before the
High Court that the Trial Court committed illegality as the
offence under Section 138 of NI Act has to be tried in summary
D manner and a part of evidence was recorded by one
Magistrate and remaining part of evidence was recorded by a
successor Magistrate who delivered the judgment. The High
Court, placing reliance on Nitinbhai remanded the matter to the
Trial Court for a de novo trial. Aggrieved by the remand order
E passed by the High Court, the accused-appellants preferred
the present appeal.
11. This Court, by an order dated 27th August, 2012
issued notice and stayed proceedings before the learned
Magistrate in pursuance of the remand order passed by the
F High Court. This Court also directed to tag on this matter with
SLP (Crl) No. 5623 of 2012.
12. As regards the appeal arising out of S.L.P. (Crl.) No.
734 of 2013, the facts in a nutshell are that the Respondent
G No.1-complainant was the owner of Ranjan High School in
Bapunagar, Ahmedabad and the accused-appellant was
engaged with the activities of the school. The accusedappellant took hand loan of Rs.3,57,000/- from the respondent
No. 1. To fulfil his obligation, the appellant issued a cheque No.
H 481551 dated 25.8.1998 for Rs.2,97,000/- and another cheque
J.V. BAHARUNI & ANR. v. STATE OF GUJARAT
1071
[N.V. RAMANA, J.]
No. 481552 dated 25.10.1998 for Rs. 60,000/- drawn on
A
Gandhinagar Nagrik Co-operative Bank, Sachivalaya Branch,
Gandhinagar. Upon presentation, the cheques were returned
by the bank unpaid on account of insufficient funds. A notice
was served upon the accused-appellant on 17.11.1998
demanding payment and upon his failure to comply with the
B
notice, the respondent No.1-complainant filed criminal
complaint.before the Trial Court.
13. Accused pleaded not guilty and after conducting the
trial. The Trial Court by an order dated 7.8.2009 acquitted the
appellant-accused holding him innocent as per Section 255(1)
C
of the Cr.P.C. Aggrieved thereby, the respondent No. 1
preferred appeal under Section 378 of Cr.P.C. before the High
Court. The High Court, by the impugned judgment, observed
that the case was transferred from one Metropolitan Magistrate
to another and the Magistrate who recorded the evidence did
D
not pass judgment. Placing reliance on Nitinbhai the High Court
allowed the appeal and remanded the matter to the Trial Court
for de novo trial. Against the order passed by the High Court
remanding the matter for de novo trial, the accused-appellant
preferred the present appeal.
E
14. This Court, by an order dated 14th January, 2013
issued notice and stayed proceedings before the learned
Magistrate in pursuance of the remand order passed by the
High Court. The matter was also directed to be tagged with SLP
F
(Crl) No. 5&23 of 2012.
15. That is how all these appeals are placed before us. In
all three matters, the rival contentions of the parties are more
or less similar and as the issue.involved is one and the same,
they are being dealt with and disposed of commonly.
G
16. Learned counsel for the appellants contended that even
though the learned Magistrate who rendered the judgment was
not the same who recorded the evidence, the fact remains that
the order of acquittal was recorded only after appreciating the
H
1072
SUPREME COURT REPORTS
(2014] 10 S.C.R.
A entire evidence in its proper perspective and after giving an
opportunity to both sides to present their case. Not only that,
the learned Magistrate, before delivering the judgment, has
given ample opportunity to the parties to bring on record their
evidence in detail. The learned Magistrate analyzed the entire
B oral as well as documentary evidence. After taking into account
all material aspects, the Trial Court framed the issues and
passed reasoned order arriving at a conclusion that no iota of
evidence is produced by the complainant to show that any
amount was due and recoverable from the accused and the
c complainant has failed to prove that the Cheques in question
were issued by the accused towards a legally enforceable debt.
While passing the order of acquittal, the Trial Court also
considered the settled principles of law laid down by this Court
and came to the conclusion that the accused is not guilty of the
0 offence under Section 138 of the N.I. Act. Therefore, in view of
the exercise undertaken by the learned Judge, the trial in
question could not be termed as a 'summary trial' and there is
no impropriety involved in the judgment of the Trial Court. The
High Court, while allowing the appeal of the complainant by
setting aside the order of acquittal and directing for a de novo
E trial, failed to take into consideration the prejudice caused to
the accused and further failed to follow the principles of natural
justice.
17. Learned counsel, drawing our attention to the nature
F of 'summary trial', submitted that in the present case (SLP(Crl)
No. 5623 of 2012), recording of the evidence of PW 1 was
commenced on 19th December, 2002 and Sections 143 to
147 of the N.I. Act came to be inserted by the Negotiable
Instruments (amendment and Miscellaneous Provisions) Act,
G 2002 only w.e.f. 6th February, 2003, empowering the Court to
try all offences under Chapter XVII of the N.I. Act 'summarily'.
Thus, the change of law after the commencement of recording
evidence cannot be applied to the present case and the
judgment of the trial Court cannot be treated as a result of
H 'summary trial'. Moreover, the exercise undertaken by the
J.V. BAHARUNI & ANR. v. STATE OF GUJARAT
1073
[N.V. RAMANA, J.)
learned Magistrate during the course of trial by examining the
A
witnesses, marking of documents, recording of entire evidence
in detail, cross examination and chief examination etc., shows
that he tried the case not 'summarily' but in a regular way. For
the simple reason that the learned Magistrate has failed to
mention that the case was tried in a regular way but not
B
'summarily', the trial would not get vitiated. The final verdict of
the Trial Court that "considering all facts and circumstances,
and considering the evidence and the settled principles of
law and evidence. complainant has failed to prove the
charge against the accused and under all these c
circumstances, it is not possible to hold the accused guilty
and convict him" explains in clear terms that the decision was
passed after undergoing a regular trial following complete
procedure in accordance with the Cr.P.C. Keeping in mind the
provisions of Section 465, Cr.P.C., the High Court ought not 0
to have reversed the finding of the Trial Court on account of any
error, omission or irregularity in the complaint or order, judgment
F
or other proceedings during trial or inquiry until and unless the
Court feels that failure of justice has in fact occasioned thereby.
Learned counsel, taking cue from sub-section (2) of Section
E
465, Cr.P.C., submitted that it is the bounden duty of
respondents-complainants to raise the objection, if any, at the
earliest stage before the Trial Court itself. But the complainants
had not raised any such objection that being summary
proceedings, the learned Magistrate who delivered the
judgment cannot act on the evidence recorded by his
predecessor. The respondents have therefore no locus to raise
such objection in appeal, and the High Court had committed a
serious error in entertaining the plea of respondents and setting
aside the judgment of the Trial Court. In support thereof, learned
counsel heavily relied on a decision of this Court dated 12th
G
July, 2013 in Criminal Appeal Nos. 968-971 of 2013 (Mehsana
Nagrik Sahkari Bank Ltd. Vs. Shreeji Cab Co. & Ors. Etc.
2014 CriLJ 1953) wherein this Court after referring to Nitinbhai
and perusing the notes of evidence, found that the Magistrate
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A recorded the evidence not in a summary manner but in full
fledged manner and declared that there is no need to order for
a de novo trial.
18. While submitting that by remanding the present matter
8 to the Trial Court for a de novo trial, nothing new can be found,
learned counsel invited our attention to a judgment of this Court
in Indian Bank Association & Ors. Vs. Union of India & Ors.
(2014) 5 SCC 590 whereby this Court has issued certain
directions to the Trial Courts as to how to deal with the
complaints under Section 138 of the N.I. Act. In the said
C judgment, Guideline No. 5 speaks in the following terms:
(5)
The Court concerned must ensure that examinationin-chief, cross-examination and re-examination of
the complainant must be conducted within three
D
months of assigning the case. The court has option
of accepting affidavits of the witnesses instead of
examining them in the court. The witnesses to the
complaint and the accused must be available for
cross-examination as and when there is direction
E
to this effect by the court.
19. This Court further directed that all the criminal Courts
in the country dealing with Section 138 of the N .I. Act cases to
follow the abovementioned procedure for speedy and
F expeditious disposal of those cases. In the trial of the present
cases also, though it was not a summary trial, learned
Magistrate has kept in mind the above mentioned procedure
and scrupulously followed the same.
20. Learned counsel further submitted that Section 260,
G Cr.P.C. provides an option to the Magistrate either to try the
case summarily or as a summons case. Relying on a decision
of Bombay High Court in Pratibha Pandurang Salvi & Ors. Vs.
State of Maharashtra & Anr. 2010 Crl.L.J. 730, and also a
decision of Orissa High Court in Kishore Pallei Vs. Aruna
H Kumar Panda 2013 (I) OLR 1005, learned counsel argued that,
J.V. BAHARUNI & ANR. v. STATE OF GUJARAT
1075
[N.V. RAMANA, J.]
Section 143 of the N.I. Act provides an option to the Magistrate
A
to try a case 'summarily' or otherwise. Therefore, there is no
illegality in the way trial of the present cases was conducted
and the High Court was not right in ordering for a de novo trial.
21. Learned counsel for the respondents, on the other
hand, contended that even though sub-section (1) of Section
B
326 Cr.P.C. allows the succeeding Magistrate to act on the
evidence so recorded by his predecessor, sub-section (3)
thereof puts a bar in respect of summary trials in proceedings
under Section 138 of the N.I. Act. After the insertion of Section
143 to the N.I. Act, w.e.f. 6th February, 2003, all offences under
C
Chapter XVII of the N.I. Act shall be tried by the Judicial
Magistrate and provisions of Sections 262 to 265 of the Cr.P.C.
shall, as far as may be, apply. Basing reliance on Nitinbhai
learned counsel for the respondents submitted that the
prohibition contained in sub-section (3) of Section 326 is
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absolute and admits of no exception. Sub-section (2) of Section
143 of the N.I. Act read with absolute bar contained in subsection (3) of Section 326, Cr.P.C. makes it clear that in
summary trial the evidence if recorded by a Magistrate partly,
the entire trial vitiates and becomes non est in the law. In such
E
cases, de novo trial is only the alternative.
22. Placing reliance on Mandvi Cooperative Bank Ltd. Vs.
Nimesh B. Thakore (2010) 3 SCC 83, learned counsel
submitted that in cases of summary trials, Sections 143, 144,
145 and 147 of the N.I. Act form a compete code which
expressly departs and overrides the provisions of Cr.P.C. They
provide flexibility to the Magistrate to come to a conclusion that
at any stage of the trial, if the Magistrate thinks that it would
F
not be desirable to hold a summary trial, he may call for cross
examination, chief examination and recall any witness. For
G
doing so, however, the Magistrate has to record reasons. But,
in the cases on hand no such reason has been recorded by
the Magistrate and hence the trial could only be treated as
'summary trial' and there is no illegality in the decision of the
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A High Court remanding the matter for de novo trial. Learned
counsel further submitted that the amendment inserting
Sections 143 to 147 in the N.I. Act w.e.f. 6th February, 2013
shall be held to be retrospective in operation.
23. Having heard learned counsel for the parties at length,
8 the following issues arise for our determination:
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1.
What is the legislative intent of the Negotiable
Instruments (Amendment and Miscellaneous
Provisions) Act, 2002 and the object of
incorporating Section 143?
2.
What are the factors, the appellate Court has to
keep in mind while arriving at a conclusion about
the procedure adopted by the Trial Court in
conducting the trial?
3.
In what circumstances a case should be remanded
back for de novo trial?
24. The Legislature, having noticed that the prevailing
E Sections 138 to 142 of the N.I. Act could not completely achieve
the desired results, has chosen to insert Sections 143 to 147
with an avowed object of speedy disposal of cases relating to
dishonour of cheques. To achieve the purpose of "speedy
disposal", the Legislature has recommended a simplified
F procedure for trial of the offences under the N. I. Act i.e.
'summary trial'. The amendment to the Act also made the
offence 'compoundable' as the punishment provided in the
unamended Act was inadequate and the procedure was found
to be cumbersome. Thus, incorporation of Sections 143 to 147
G was ~specially aimed at early disposal of cases in a simplified
procedure and more particularly, to do away with all the stages
and processes in a regular criminal trial that normally cause
inordinate delay in its conclusion and to make the trial
procedure as expeditious as possible without in any way
compromising with the right of the accused for a fair trial. This
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J.V. BAHARUNI & ANR. v. STATE OF GUJARAT
1077
[N.V. RAMANA, J.]
results in overcoming the huge docket of Courts with matters
A
pertaining to dishonour of cheques as their prolonged trials
became a serious matter of concern.
25. Sub-section (1) of Section 143 of the N.I. Act makes
it clear that all offences under Chapter XVII of the N.I. Act shall
8
be tried by the Magistrate 'summarily' applying, as far as may
be, provisrons of Sections 262 to 265 of Cr.P.C. It further
provides that in case of conviction in a summary trial, the
Magistrate may pass a sentence of imprisonment for a term
not exceeding one year and a fine exceeding Rs.5,000/-. Subsection (1) of Section 143 of the N.I. Act further provides that
C
during the course of a summary trial, if the Magistrate is of the
opinion that the nature of the case requires a sentence for a
term exceeding one year or for any other reason, it is
undesirable to try the case summarily, the Magistrate shall, after
hearing the parties, record an order to that effect and thereafter
D
recall any witness whom he had examined, or proceed to rehear
the case. Sub-section (2) mandates that so far as
practicable. the trial has to be conducted on a day to dav
basis until its conclusion.
26. An analysis of Section 143 brings out that the
Magistrate, initially, should try the case 'summarily' if he is of
the opinion that he is not going to pass sentence of
imprisonment not exceeding one year and fine of Rs.5,000/- .
E
In case during the course of trial, if the Magistrate forms a
F
different opinion that in the circumstances of the case, he may
order a sentence of a term exceeding one year, or for any other
reason it is undesirable to try the case summarily, he must
record the reasons for doing so and go for a 'regular trial'.
Thereafter, the Magistrate can also recall any witness who has
G
been examined and proceed to hear or rehear the case. So,
the second proviso to sub-section (1) of Section 143, gives
discretion to the Magistrate to conduct the case other than
in summary manner.
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27. This Court in Mandvi Cooperative Bank (supra) after
analyzing the objects and importance of Sections 143 to 147
of the N.I. Act, this Court observed that Section 143 of the Act
gave power to the Court to try cases summarily. At Paras 20,
21, 25 & 29 of the said judgment, this Court observed:
"20. It may be noted that the provisions of Sections 143,
144, 145 and 147 expressly depart from and override the
provisions of the Code of Criminal Procedure, the main
body of adjective law for criminal trials. The provisions of
Section 146 similarly depart from the principles of the
Evidence Act. Section 143 makes it possible for the
complaints under Section 138 of the Act to be tried in the
summary manner, except, of course, for the relatively small
number of cases where the Magistrate feels 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.
21. It is, however, significant that the procedure of
summary trials is adopted under Section 143 subject to
the qualification "as far as possible", thus, leaving sufficient
flexibility so as not to affect the quick flow of the trial
process. Even while following the procedure of summary
trials, the non obstante clause and the expression "as far
as possible" used in Section 143 coupled with the non
obstante clause in Section 145 allow for the evidence of
the complainant to be given on affidavit, that is, in the
absence of the accused. This would have been
impermissible (even in a summary trial under the Code of
Criminal Procedure) in view of Sections 251 and 254 and
especially Section 273 of the Code. The accused,
however, is fully protected, as under sub-section (2) of
Section 145 he has the absolute and unqualified right to
have the complainant and any or all of his witnesses
summoned for cross-examination.
J.V. BAHARUNI & ANR. v. STATE OF GUJARAT
1079
[N.V. RAMANA, J.]
A
25. It is not difficult to see that Sections 143 to 147 lay
down a kind of a special code for the trial of offences under
Chapter XVII of the Negotiable Instruments Act and
Sections 143 to 147 were inserted in the Act by the
8
Negotiable Instruments (Amendment and Miscellaneous
Provisions) Act, 2002 to do awav with all the stages
and processes in a regular criminal trial that normallv
cause inordinate de/av in its conclusion and to make
the trial procedure as expeditious as possible without C
in anv way compromising on the right of the accused
for a fair trial. Here we must take notice of the fact that
cases under Section 138 of the Act have been coming in
such great multitude that even the introduction of such
radical measures to make the trial procedure simplified
and speedy has been of little help and cases of D
dishonoured cheques continue to pile up giving rise to an
unbearable burden on the criminal court system.
29. Once it is realised that Sections 143 to 147 were
E
designed especially to lay down a much simplified
procedure for the trial of dishonoured cheque cases
with the sole object that the trial of those cases
should follow a course even swifter than a summarv
trial and once it is seen that even the special F
procedure failed to effectively and expeditiously
handle the vast multitude of cases coming to the
court. the claim of the accused that on being
summoned under Section 145(2). the complainant or
any of his witnesses whose evidence is given on
G
affidavit must be made to depose in examination-inchief all over again plainly appears to be a demand for
meaningless duplication. apparently aimed at delaying
the trial."
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28. We find that in the case of Nithinbhai, the complainant
examined himself along with other witnesses in support of his
case and produced documentary evidence. The accused,
however, did not lead any defence evidence but in his
examination under Section 313 Cr.P.C., the accused stated
s that his signature was obtained on the blank paper by
kidnapping him, written something on it and filed a false
complaint against him. After recording evidence, the
Metropolitan Magistrate came to be transferred. Therefore, he
ceased to exercise jurisdiction. He was succeeded by another
C Magistrate before whom both parties, i.e. the complainant as
well as the accused, filed a memo declaring that the parties
had no objection to proceed with the matter on the basis of
evidence recorded by the predecessor Magistrate in terms of
Section 326, Cr.P.C. and on that basis, learned Magistrate
0
considered the evidence led by the complainant and passed
judgment convicting the appellants under Section 138 of the N.I.
Act and sentenced them to suffer simple imprisonment for
three months with fine of Rs.3,000/-. Aggrieved by the said
order, the accused preferred Criminal Appeal before the
Sessions Judge at Ahmedabad who affirmed the conviction.
E However, there was some modification in the sentence.
Dissatisfied with the judgment of the first appellate Court, the
accused moved Gujarat High Court by way of a Revision. The
Gujarat High Court maintained the conviction under Section 138
of the N.I. Act, but set aside the final order of sentence imposed
F
upon the accused and remanded the matter to the learned
Magistrate for passing appropriate -order on sentence and
compensation. Aggrieved by the said order, appeal came
before this Court.
G
H
29. Dealing with the said appeal, this Court, while relying
on the provisions of Section 326, Cr.P.C. observed:
"12. Section 326 is part of the general provisions as to
inquiries and trials contained in Chapter XXIV of the Code.
It is one of the important principles of criminal law that the
J.V. BAHARUNI & ANR. v. STATE OF GUJARAT
1081
[N.V. RAMANA, J.]
Judge who hears and records the entire evidence must
A
give judgment. Section 326 is an exception to the rule that
only a person who has heard the evidence in the case is
competent to decide whether the accused is innocent or
guilty. The section is intended to meet the case of transfers
of Magistrates from one place to another and to prevent
B
the necessity of trying from the beginning all cases which
may be part-heard at the time of such transfer. Section
326 empowers the succeeding Magistrate to pass
sentence or to proceed with the case from the stage it was
stopped by his preceding Magistrate. Under Section c
326(1 ), the successor Magistrate can act on the evidence
recorded by his predecessor either in whole or in part. If
he is of the opinion that any further examination is required,
he may recall that witness and examine him, but there is
no need of a retrial.
D
13. In fact, Section 326 deals with part-heard cases, when
one Magistrate who has partly heard the case is
succeeded by another Magistrate either because the first
Magistrate is transferred and is succeeded by another, or
because the case is transferred from one Magistrate to
E
another Magistrate. The rule mentioned in Section 326 is
that the second Magistrate need not rehear the whole case
and he can start from the stage the first Magistrate left it.
14. However, a bare perusal of sub-section (3) of Section
326 makes it more than evident that sub-section (1) which
authorises the Magistrate who succeeds the Magistrate
who had recorded the whole or any part of the evidence
F
in a trial to act on the evidence so recorded by his
predecessor, does not apply to summary trials. The
G
prohibition contained in sub-section (3) of Section 326 of
the Code is absolute and admits of no exception. Where
a Magistrate is transferred from one station to another, his
jurisdiction ceases in the former station when the transfer
takes effect.
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15. Provision for summary trials is made in Chapter XXI
of the Code.