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SUMMARY TRIAL

1. M/S Meters And Instruments ... vs Kanchan Mehta

Facts

The Respondent Kanchan Mehta filed complaint dated 15th July, 2016 alleging that the
appellants were to pay a monthly amount to her under an agreement. Cheque dated 31 st March,
2016 was given for Rs.29,319/- in discharge of legal liability but the same was returned unpaid
for want of sufficient funds. In spite of service of legal notice, the amount having not been paid,
the appellants committed the offence under Section 138 of the Act. The Magistrate vide order
dated 24th August, 2016, after considering the complaint and the preliminary evidence,
summoned the appellants. The Magistrate in the order dated 9 th November, 2016 observed that
the case could not be tried summarily as sentence of more than one year may have to be passed
and be tried as summons case. Notice of accusation dated 9th November, 2016 was served under
Section 251 Cr.P.C... Appellant No.2, who is the Director of appellant No.1, made a statement
that he was ready to make the payment of the cheque amount. However, the complainant
declined to accept the demand draft. The case was adjourned for evidence. The appellants filed
an application under Section 147 of the Act on 12 th January, 2017 relying upon the judgment of
this Court in Damodar S. Prabhu versus Sayed Babalal H.1 The application was dismissed in
view of the judgment of this Court in JIK Industries Ltd. versus Amarlal versus Jumani2 which
required consent of the complainant for compounding. The High Court did not find any ground
to interfere with the order of the Magistrate. Facts of other two cases are identical. Hence this
appeal.

2. INDIAN BANK VS. MAHARASHTRA STATE CO-OPERATIVE MARKETING


FEDERATION LTD.,

FACTS

The Respondent Federation opened in the Appellant Bank an Irrevocable Letter of Credit for a
sum of Rs. 3,78,90,000/- in favor of M/s. Shankar Rice Mills on 5 June 1989. This was done on
leave to the Federation to defend the suit conditionally upon the Federation depositing Rs. 4
crores in the Court. The summons for judgment was disposed of and the Notice of Motion was
dismissed by the single bench. Aggrieved by the Order of the Learned Single Judge, the
Federation preferred Appeals No. 953 and 954 of 1994 before the Division Bench of the High
Court. According to the division bench the word ‘trial’ in section 10 has not been used in a
narrow sense and would mean the entire proceedings after the defendant enters his appearance,
held that section 10 of the Code applies to a summary suit also. It also held that the summary suit
filed by the Bank being a subsequently instituted suit was required to be stayed.

3. Mahendra Singh vs State Of West Bengal

Facts

On receipt of information the police searched the appellants house on May 14, 1968. In the
central room of that house there was an almirah of which the key was produced by the appellant
and handed over to the Inspector of Police. When the almirah was opened with the key it was
found to contain a bag with live cartridges and a gun. As no licence or permit for their possession
was produced, the appellant was prosecuted and was convicted under Ss. 25(1)(a) and 27 of the
Arms Act, 1959 and the appellant was sentenced to imprisonment for two years R.I. His appeal
to the High Court was dismissed summarily. Special leave to appeal to this Court was granted
and the accused was on bail pending disposal of the appeal.

4. Nitinbhai Saevantilal Shah & Anr Vs Manubhai Manjibhai Panchal &

Anr

The Complainant is known to the appellant No.1. The appellant No.1 is the Director of appellant
No.2 which is a private limited company. It is the case of the complainant that the appellant No.1
had borrowed hand loan from him and in order to pay the legal dues, the appellant No.1 had
given a cheque dated October 13, 1998 for the sum of Rs.11,23,000/- drawn on the State Bank of
India. The cheque was signed by the appellant No.1 on behalf of the appellant No.2. The
complainant presented the cheque for realization in the Central Bank of India. The cheque was
dishonoured and sent back to the complainant with a memorandum dated October 15, 1998
mentioning that the cheque was dishonoured because of insufficiency of funds. Thereupon, the
complainant served a demand notice dated October 28, 1998 which was returned unserved as
unclaimed on November 5, 1998. Therefore another notice was served by post under Postal
Certificate. The appellants failed to pay the amount mentioned in the notice within 15 days from
the date of receipt of notice. Therefore, the complainant filed complaint in the Court of learned
Metropolitan Magistrate, Court No.2, Ahmedabad on December 15, 1998 and prayed to convict
the appellants under Section 138 of the Act. On the basis of the complaint, Summary Case No.
2785 of 1998 was registered and after recording verification, the learned Magistrate had issued
process.The complainant examined himself and his witnesses and also produced documentary
evidence in support of his case set up in the complaint. The appellants did not lead any defence
evidence. However, the appellant No.1 in his statement recorded under Section 313 of the Code
stated that his signature was obtained on the blank paper by kidnapping him and writing was
written on it and that false complaint was lodged by misusing the signed blank cheque. After the
evidence was recorded by the learned Metropolitan Magistrate as stated above, he came to be
transferred and therefore, ceased to exercise jurisdiction in the case. He was succeeded by
another learned Metropolitan Magistrate who had and who exercised such jurisdiction. On
August 03, 2001, a pursis was filed before the learned Metropolitan Magistrate by the appellants
as well as the original complainant i.e. the respondent No.1 herein, declaring that the parties had
no objection to proceed with the matter on the basis of evidence recorded by predecessor in
office of the learned Metropolitan Magistrate in terms of Section 326 of the Code. On the basis
of said pursis the learned Metropolitan Magistrate considered the evidence led by the
complainant and heard the learned counsel for the parties. The learned Metropolitan Magistrate
by judgment dated February 13, 2003, delivered in Summary Case No. 2785 of 1998, convicted
both the appellants under Section 138 of the Act and sentenced each of them to suffer simple
imprisonment for three months with fine of Rs.3,000/-i/d simple imprisonment for 15 days.
Feeling aggrieved, the appellants preferred Criminal Appeal No.19 of 2003 in the Court of the
learned Additional City Sessions Judge at Ahmedabad. The learned Judge found that conviction
of the appellants recorded under Section 138 of the Act was perfectly just but noticed that the
appellant No. 2 is a private limited company and therefore, could not have been sentenced to
simple imprisonment for three months. Therefore, the learned Additional City Sessions Judge,
Court No.13, Ahmedabad by judgment dated October 16, 2003 dismissed the appeal but set aside
sentence of simple imprisonment of three months imposed upon the appellant No.2 and
maintained the full sentence imposed upon appellant No.1 as well as sentence of fine of
Rs.3,000/- imposed upon the appellant No.2. Dissatisfied with the judgment of the First
Appellate Court, the appellants preferred Criminal Revision Application No.529 of 2003 in the
High Court of Gujarat at Ahmedabad. The learned Single Judge by judgment dated August 09,
2010, maintained conviction of the appellants under Section 138 of Negotiable Instrument Act,
but set aside final order of sentence imposed upon the appellants and remanded the matter to the
learned Magistrate for passing appropriate order of sentence and compensation, if any payable
under Section 357 of the Code, within three months, after giving to the parties reasonable
opportunity of being heard, which has given rise to the instant appeal

5. K.Ramalakshmi vs Swarnalatha

The petitioner has preferred the instant Criminal Revision Case as against the order dated
10.01.2013 in C.C.No.9 of 2013 passed by the Learned Judicial Magistrate No.1,
Tirunelveli. The Learned Judicial Magistrate No.1, Tirunelveli on 10.01.2013. "Complainant
present. Accused absent. Petition u/s.317 Crpc. allowed. Accused side counsel present. On
perusal of records that is found that this case is taken on file on S.T.C. This Court find that from
the interest of justice, and fair trial, detailed records of evidence is necessary. Hence this case is
hereby intend to try this case on summons procedure accordingly. Being dissatisfied with the
impugned order dated 10.01.2013 in C.C.No.9 of 2013 passed by the Learned Judicial Magistrate
No.1, Tirunelveli in regard to the conversion of the case from Summary Trial Case into Calendar
Case, the Petitioner / Accused has focussed the instant Criminal Revision Case before this Court,
contending that the order of the trial Court in converting the Summary Trial Case in STC
No.1154 of 2010 as Calendar Case in C.C.No.9 of 2013 is against the provisions of
theNegotiable Instruments Act, 1881. According to the Learned counsel for the Petitioner /
Accused, the trial Court has failed to appreciate that the complaint filed by the respondent /
complainant under Section 138 of the Negotiable Instruments Act, 1881 has to be tried only as
Summary Trial Case in accordance with Section 143(1)of the Act. the trial of the case could be
proceeded under Sections 262 to 265 of Cr.PC. Further, only when it appears to the Learned
Magistrate that the nature of the case is that the sentence of the imprisonment for a term
exceeding one year may have to be passed or for any other reason, it is undesirable to try the case
summarily, it is open to the Learned Magistrate after hearing the parties, to record and order to
that effect and thereafter to proceed with the case in the manner enshrined under the Criminal
Procedure Code.

The ground of attack made by the Learned counsel for the petitioner is that the Learned Judicial
Magistrate No.1, Tirunelveli had not formed any opinion so as to try the case as Calendar Case
in terms of Criminal Procedure Code, instead of deciding it as Summary Trial. The Learned
counsel for the petitioner projects an argument that the trial Court has not heard the parties and
recorded an order to the effect that the complaint is required to be tried as Calendar Case and in
this Regard there is a violation of the ingredients of Section 143(1) of the Negotiable Instruments
Act. The last leg of the argument of the Learned counsel for the petitioner is that the Learned
Magistrate failed to appreciate that the Petitioner / Accused is greatly prejudiced by the
conversion of Summary Trial into the Calendar Case, as the punishment for Summary trial could
not exceed a year. Whereas, if the same is tried as Calendar Case, the punishment could be
imposed more than one year.

WARRANT TRIALS

1. Chhadami Lal Jain And Others vs The State Of Uttar Pradesh

A complaint was filed against seven persons under SS. 409, 465, 467, 471 and 477A of the
Indian Penal Code. After examining the complainant summonses were issued to the accused to
answer a charge under s. 406. 'The trial started as in a warrant case; prosecution witnesses were
examined and cross-examined and the statements of the accused were recorded, and the
Magistrate heard arguments on the question of framing charges. Thereafter, he framed charges
under SS. 409 and 465 read with SS. 471 and 477A, and without giving previous intimation of
his intention to do so, passed an order committing the appellants to the Court of Sessions. The
appellants, contended that the commitment was illegal because the case having begun as a
warrant case it was incumbent upon the Magistrate, when he decided to commit the case to the
Court of Session, to follow the procedure provided in Ch. XVIII Code of Criminal Procedure,
but he failed to comply with the provisions of SS. 208 to 213. The complainant urged that even if
the provisions of SS. 208 to 213 had not been complied with no prejudice was caused to the
appellants and the commitment could not be quashed. Held that the commitment order was
illegal as the Magistrate had failed to comply with the provisions of s. 208 of the Code of
Criminal Procedure. The proceedings having begun as in a warrant case, if the Magistrate, at a
subsequent stage, was of the view that the case should be committed to the Court of Sessions, he
had to act under s. 347(1) of the Code and to follow the procedure prescribed for inquiries under
Ch. XVIII of the Code. When, in the present case, the Magistrate decided to commit the case, he
should have refrained from framing the charge and should have informed the accused of his
intention to commit and should have called upon the accused to produce defense evidence, if
any. The failure of the Magistrate to intimate his decision to commit to the accused deprived
them of the right to produce defense evidence, if any, under S. 208. The denial of this right was
itself sufficient to cause prejudice to the accused and failure of justice inasmuch as the accused
were prevented from leading evidence which might have induced the Magistrate not to frame the
charge against them.

2. Payare Lal vs State Of Punjab

The appellant and another were prosecuted' for offences under s. 5(2) of the Prevention of
Corruption Act, 1947. The trial commenced before the special judge who heard the evidence but
before he could deliver judgment was transferred and was succeeded by another special judge.
The latter did not recall the witnesses and did not hear the evidence over again, but proceeded
with the trial without any objection from either side from the stage at which his predecessor had
left. He convicted both the accused. On appeal, the Punjab High Court held that s. 350 Criminal
procedure Code applied to the trial before a special judge in view of s. 8(1) of the Criminal Law
Amendment Act, 1952, and the succeeding special judge was entitled to proceed on the evidence
recorded by his predecessor. The controversy is whether s. 330 of the Code of Criminal
Procedure is applicable to a special judge under sub-s.(1) ,of s. 8 of the Criminal Law
Amendment Act, 1952, though it is not applicable under sub-s. (3) Of the Act. Therefore the
question is what is meant by the words "The procedure prescribed by the court for the trial of
warrant cases by magistrate" in sub-s.(1) of s. 8 of the Act, and whether s. 350 of the Code
prescribe one of the rules of such procedure. The Act was since amended and therein it is
expressly provided that s.350 of the Code applies to the proceedings before a special judge. The
amendment does not govern the present proceeding as the impugned part of the proceedings was
concluded before the amendment. Held, that the Criminal Law Amendment Act, 1952, did not
intend that s. 350 of the Criminal Procedure Code would be available as a rule of procedure
prescribed for the trials of warrant cases, to a special judge as the special Judge was not a
magistrate for the purpose of the Act not did the Act require before the amendment that he was to
be deemed to be such. 329 The Act in using the words "procedure prescribed by the Code...... for
the trial of warrant cases by magistrate" meant only the ss. 251 to 259 of the Criminal Procedure
Code as expressly referred in the code as containing the procedure St specified for the trials of
warrant cases by magistrate and did not contemplate s. 350 of the Code as a procedure so
prescribed. Held, further, that where in a case there is want of competency and not a mere
irregularity, s. 537 of the Code of Criminal Procedure has no application. It cannot be called in
aid to make what was incompetent, competent. Held, also, that it is the right of an accused
person that his case should be decided by a judge who has heard the whole of it and that very
clear word would be necessary to take away such an important and well established right. In the
present case the succeeding special judge had no authority under the law to proceed with the trial
of the case from the stage at which hi-, predecessor in office left it, and the conviction of the
appellant cannot be supported as he had not heard the evidence in the case himself. The
proceeding before the succeeding special judge was clearly incompetent. There has been no
proper trial of the case and there should be one.

3. Kanu Sanyal Vs Dist. Magistrate, 1974 AIR 510

The petitioner was remanded to the District Jail, Darjeeling, in connection with certain offences.
Thereafter, two charge 'sheets were filed against him and others for various offences under the
I.P.C., which were triable exclusively by a Sessions Court, before the Special Magistrate,
Visakhapatnam. The Special Magistrate issued a warrant for the production of the petitioner in
his Court, under s. 3(2) of the Prisoners (Attendance in Courts) Act, 1955, and the officer in
charge of the, Dt. Jail Darjeeling, sent the petitioner to the Court of the Special Magistrate,
Visakhapatanam. The petitioner was then remanded to the Central Jail. Visakhapatnam, pending
the disposal of the. Committal proceedings. In a petition for the issue of a writ of habeas corpus,
the petitioner contended that his initial detention in the Dt. Jail, Darjeeling, was illegal, because,
(1)(a) it was violative of Art. 22(1) (b) the concerned Magistrate in Darjeeling had no jurisdiction
to try the offences in connection with which he was detained in Darjeeling and hence could not
order detention beyond 15 days; and (2) the officer in charge of the Dt. Jail, Darjeeling should
have refused to comply with the warrant for production issued by the Special Magistrate,
Visakhapatnam, by reason of s. 6 of the Prisoners (Attendance in Courts) Act. HELD: (1) As
regards the earliest date with reference to which the legality of detention challenged in a habeas
corpus proceeding may be examined, there are 3 views, namely, (a) that it is the date on which
the application for habeas corpus is made to the Court, (b) that it is the date of the return, and (c)
that it is the date of hearing. Whichever be the correct view, the earliest of the dates would be the
date of filing of the application for habeas corpus. In the present case, the application was filed
after the petitioner was ordered to be detained in the jai at Visakhapatnam. Assuming that there
was some infirmity in the detention in the jail at Darjeeling , that cannot invalidate the
subsequent detention off the petitioner in the jail at Visakhapatnam. The legality of the detention
at Visakhapatnam has to be judged on its own merits. Therefore, it is unnecessary to examine the
legality of the detention of the petitioner in the jail at Darjeeling. [283 t)-284 C] (2) under s. 3(1)
of the Prisoners (Attendance in Courts) Act, the order contemplated is an order by a civil or
criminal court, for the production of a detained person for giving evidence. But the order
contemplated by s. 3(2) is an order of production of a person for answering a charge in a criminal
court. Under s. 5, when an order of production is made under s. 3(1) or (2), the officer in charge
of a prison shall cause the detained person to be taken to the court where his attendance is
required. Under s. 6, such officer shall abstain from complying with the order of production in
certain circumstances. The proviso to the section carves out an exception if the 3 conditions for
its applicability, laid down in the proviso, are satisfied. The first condition is that the order of
production should be by a criminal court and the second is that the detained person should not be
unfit to be removed, and the 280 third is that the place where the evidence of the detained person
is required is not more than 5 miles from the prison where he is confined. [285 A-G] In the
present case, the first two conditions are satisfied. The 3rd condition can have no application
where an order is made by a criminal court under s. 3(2) requiring production for answering a
charge. The fulfillment of the first two conditions would, in such a case, be sufficient to attract
the applicability of the Proviso, and to take the case out of s. 6. Therefore, the officer in charge
of the jail at Darjeeling was bound to send the petitioner to the Court at Visakhapatnam and he
acted according to law. The subsequent detention in the jail at Visakhapatnam pending trial must
be held to be valid and a writ of habeas corpus cannot be granted where a person is committed to
jail custody by a competent court by an order which, prima facie, does not appear to be without
jurisdiction or wholly illegal.

4. Pramod Mahto vs State Of Bihar, (2003) 9 SCC 215

The appellant herein and two others namely Bechan Paswan and Bibhakar Mahto were charged
for offence punishable under Section 302/34 IPC for having committed murder of Devendra
Mahto on 17th May 1984 at-about 7.30 p.m. in village called Rasulpur. Since Bibhakar Mahto
was minor his trial was separated and it is on record that he was subsequently acquitted from the
charge against him. Learned 7th additional sessions judge, Monger who tried the case of the
appellant and Bechan Paswan, found both of them guilty of the offence charged against them and
convicted the appellant under Section 302 and sentenced him to undergo life imprisonment. He
also convicted the said Bechan Paswan under Section 302 read with Section 34 and sentenced
him to undergo life imprisonment. In appeal the High Court allowed the appeal of Bechan
Paswan and acquitted him of the charge while the appellant was found guilty of the offence
charged against him and the sentence was affirmed. It is against the judgment of the High Court,
the appellant is before the Supreme Court

5. Subramanium Sethuraman vs State Of Maharashtra & Anr

The 2nd respondent herein lodged a complaint before the Additional Chief Metropolitan
Magistrate for offence punishable under Section 138 of the Negotiable Instruments Act against
the appellant herein and four others which included a Company and its Directors. It is not
disputed that the appellant herein was one of the Directors of the Company. The complaint in
question was filed in December, 1996 and after following the procedure laid down in Chapter
XV and XVI of the Code of Criminal Procedure, 1973, the trial court issued summons to the
named accused in the complaint. On receipt of the complaint, the 1st accused Company
challenged the same before the very same Magistrate on the ground that the Magistrate could not
have taken cognizance of the offence because of the defective statutory notice. Therefore, the
Company sought for its discharge. The said application came to be rejected. Thereafter, the
second application for discharge was filed by the Company on the very same ground which was
allowed by the Magistrate following the judgment of this Court in the case of K.M.Mathew vs.
State of Kerala & Anr. (1992 (1) SCC 217) which judgment had held that it was open to the
Magistrate taking cognizance and issuing process to recall the said process in the event of the
summoned accused showing to the court that the issuance of process was legally impermissible.
In this process, the Magistrate came to the conclusion that the statutory notice issued by the
complainant was not in conformity with the requirement of law. Aggrieved by the said order of
discharge made by the learned Magistrate, the complainant challenged the same by way of a
revision petition before the learned Sessions Court on the ground that the learned Magistrate had
no power to review his earlier order because of the Bar under Section 362 of the Cr.P.C. The
Sessions Court accepted the contention of the appellant and allowed the revision petition without
going into the merits of the legality of the statutory notice. The Company thereafter challenged
the said order of the learned Sessions Judge by way of a criminal writ petition filed under Article
227 of the Constitution of India before the High Court of Judicature at Bombay. The High Court
by its order dated 20th December, 2000 rejected the said petition on the ground that once the
Magistrate records the plea of the accused and the accused pleads not guilty then the Magistrate
is bound to take all such evidence as may be produced in support of the prosecution and there is
no provision under the Cr.P.C. enabling the Magistrate to recall the process and discharge the
accused after recording the plea of the accused. It is to be noted that there is no dispute in regard
to the fact that the plea of all the accused was recorded by the Magistrate on 1.11.1999. The
above said order of the High Court dismissing the criminal writ petition was challenged in a
special leave petition