[S.143 NI Act] Failure To Record Summary Nature Of Proceedings In Order Does Not Vitiate Trial Unless Prejudice Shown: Karnataka High Court

A single judge bench of Justice Dr HB Prabhakara Sastry, set aside the order dated September 2, 2013 passed by the appellate court which had in turn set aside the conviction handed down by the trial court under Section 138 of the Negotiable Instruments Act (NI) against the accused and remanded the matter to the trial Court ordering for a de-novo trial.

The bench said,

"When the evidence of the parties, in the chief examination, cross examination and re-examination (if any) were recorded in verbatim and was faithfully placed on record then for merely not recording the order observing that the matter would be tried as a summons case or as a regular trial would not itself vitiate the trial conducted by the Magistrate of the Trial Court, when it has not resulted in miscarriage of justice."

The bench noted that as per Section 143 of the N.I. Act, the nature of the proceedings for the trial for the offence punishable under Section 138 of the N.I. Act is summary in nature. However, the very same Section also enables the Magistrate when it appears to him 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, after hearing the parties, to record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or re-hear the case in the manner provided by the Criminal Procedure Code. Thus, it enables the Magistrate to try the case as a summons case.

Further the bench said the accused in the Trial Court itself, had taken a contention that a de novo trial is required to be conducted by the Magistrate. However, the Magistrate of the Trial Court in her impugned judgment has made a detailed discussion on the contention taken up by the accused and has made a specific observation that the predecessor Magistrate had recorded the entire memorandum of evidence of witnesses and not the substance of evidence as required under the summary trial.

Noting that the predecessor Magistrate had not recorded only the substance of evidence. The predecessor Magistrate might have decided to try the case as a warrant case, the bench observed,

"Therefore, the Magistrate of the Trial Court adopted the procedure which has to be adopted in a warrant trial while recording his evidence. She recorded the memorandum of evidence given by the witness in full and given sufficient opportunity to the opponent party to cross-examine the witness fully and thoroughly and has recorded the evidence in its entirety as given by the parties."

It added,

"However, the Sessions Judge's Court only on the point that the Magistrate, before proceeding to record the evidence as in summons case or a warrant case, had not recorded her reason in writing, had set aside the impugned judgment passed by the Trial Court and remanded the matter to the Trial Court for a de novo trial."

Finally the court held, "The Sessions Judge's Court ought to have decided the appeal before it on its merit, as such, the revision under consideration deserves to be allowed and the matter requires to be remanded to the Sessions Judge's Court for its fresh disposal, in accordance with law."

Case No: Criminal Revision Petition no 773 of 2013.

Citation: 2022 LiveLaw (Kar) 511

Date of Order: 05-12-2022

Appearance: T V Vijay Raghavan, advocate for petitioner; Geeta Menon, advocate for respondents.