MANU/GH/0780/2019

IN THE HIGH COURT OF GAUHATI

Crl. Rev. Pet. Nos. 351 and 440 of 2018
Decided On: 24.10.2019
Appellants: Milan Das
Vs.
Respondent: Nripen Borkakoty
Hon'ble Judges/Coram:
Ajit Borthakur, J.
Counsels:
For Appellant/Petitioner/Plaintiff: H.J. Tamuli, Advocate
For Respondents/Defendant: K.C. Deka, Advocate, R.J. Boruah, Addl. P.P. and Z.
Kamar, Sr. Advocate as Amicus Curiae
Case Note:
Criminal - Additional evidence - Order for - Section 138 of Negotiable
Instruments Act, 1881 (NI Act) - Present criminal revisions filed against
orders passed in NI Case filed under Section 138 of NI Act - Whether order
impugned allowing to file additional evidence need interference - Held,
court below found prima facie ground to proceed under Section 138 of NI
Act - Court issued summons to petitioner/accused -
Complainant/respondent filed his evidence-on-affidavit -
Respondent/complainant filed petitions seeking permission to file
additional documentary evidence - Question of injustice or prejudice to
petitioner/accused does not arise - Revision dismissed. [17]
DECISION
Ajit Borthakur, J.
1 . As both the above Criminal Revisions filed under Sections 397/401 Cr.P.C. are
directed against two orders, dated 12.07.2018, passed by the learned Addl. Chief
Judicial Magistrate, Sonitpur at Tezpur in NI Case No. 21/2017 and NI Case No.
43/2017 under Section 138 of the Negotiable Instruments Act, 1883 ('NI Act' for
short) involving common questions of procedural law, I propose to decide the same
by this common judgment and order.
2 . Heard Mr. H.J. Tamuli, learned counsel for the petitioner and Mr. K.C. Deka,
learned counsel appearing for the respondent No. 1/complainant as well as Mr. R.J.
Boruah, learned Addl. Public Prosecutor, Assam for the State/respondent No. 2. Also
heard Mr. Z. Kamar, learned Senior counsel appearing as the Amicus Curiae.
3. The learned Addl. CJM, Sonitpur at Tezpur fixed the above mentioned two NI Act
cases for additional evidence, by the impugned order, dated 12.07.2018, so as to
enable the respondent No. 1/complainant to mark and exhibit a bank statement in NI
Case No. 21/2017 and a lease agreement in NI Case No. 43/2017 for the purpose of
fair adjudication.
4 . The petitioner being aggrieved by the impugned orders, dated 12.07.2018, has
raised the following legal issues:-

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 (i) Section 143 of the NI Act categorically states that notwithstanding
anything contained in the Code of Criminal Procedure, all offences contained
in Chapter XVII shall be tried by a Judicial Magistrate, 1st class or by a
Metropolitan Magistrate and the provisions of Sections 262 to 265 Cr.P.C.,
procedure of summary trial, shall, as far as may be, apply to such
proceedings. Further, Section 260 Cr.P.C. read with Section 143 of the NI Act
shows that if it appears to the Magistrate that a sentence of imprisonment
exceeding 1(one) year may have to be passed, for reasons to be recorded,
the case may be tried as a summons case instead to try summarily, the
witnesses may be recalled and proceed to rehear the case. However, in the
instant cases, the learned Magistrate did not pass any order as to why the
aforesaid proceedings have not been tried summarily; and
(ii) That though Section 326 Cr.P.C. categorically states about conviction or
commitment, based on evidence partly recorded by one Judge or Magistrate
and partly by another, this procedure shall not apply to summary trial, and
as such, in a case under Section 138 of the NI Act, to which the procedure
laid in Section 143 is applicable, the successor Magistrate cannot allow any
additional evidence to be adduced by the complainant.
5 . Mr. H.J. Tamuli, learned counsel for the petitioner/accused contended that a
perusal of the Section 143 of the NI Act reveals that in a proceeding under Section
138 of the said Act, the Magistrate should try the case summarily, if he is of the
opinion that the case may warrant a conviction of the accused and pass a sentence of
imprisonment exceeding one year, for reasons to be recorded and try as summons
case. According to Mr. Tamuli, as the learned Magistrate did not form any such
opinion, based on the facts and circumstances to try as summons case, he cannot act
on the evidence recorded by his predecessor and allow the respondent/complainant,
in view of Section 326(3) Cr.P.C., to produce any additional evidence and as such,
the impugned orders and the proceedings are liable to be set aside. In this
connection, Mr. Tamuli has relied on the judgment of the apex Court rendered in
Nitinbhai Saevantilal Shah & another Vs. Manubhai Manjibhai Panchal and another,
reported in MANU/SC/1014/2011 : (2011) 9 SCC 638.
6. Per contra, Mr. K.C. Deka, learned counsel for the respondent No. 1/complainant,
contended that Section 143 of the NI Act empowers the trial Magistrate either to
follow the summary procedure provided in Chapter XXI Cr.P.C. or summons
procedure in chapter XX Cr.P.C., if he sees reason that in the facts and
circumstances, the punishment of more than 1(one) year imprisonment is likely to be
passed against the accused and further, if he decides to try the case summarily,
substance of evidence of the witnesses may be recorded. On such substance of
evidence recorded by the Magistrate to his best understanding, the successor
Magistrate cannot act, thereon for he may not be in a position to appreciate such
substance of evidence his predecessor recorded. Thus, the provision under Section
143 of the NI Act is not mandatory. In support of his contentions, Mr. Deka has relied
on a judgment rendered by the apex Court in J.V. Baharuni and another Vs. State of
Gujarat & another, reported in MANU/SC/0995/2014 : (2014) 10 SCC 494.
7 . Mr. Z Kamar, learned Senior counsel as Amicus Curiae, contended that under
Section 143 of the NI Act, the offence under Section 138 of the said Act is to be tried
summarily following the provisions of Sections 262 to 265 Cr.P.C. However, where in
course of trial, it appears to the Magistrate that the nature of the case is such that
sentence of 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
Magistrate to hear the parties and record an order to that effect and thereafter, recall

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 any witness and proceed to hear or rehear the case as per the procedure in trial of
summons case. While applying the aforesaid discretion, Mr. Kamar submitted, the
Magistrate is to record reasons and give opportunity of hearing to both sides. Relying
on an earlier judgment delivered by this Court in Smt. Dipti Choudhury vs. Sangeeta
Mandal @ Sangita Das in Criminal Petition No. 49/2013, Mr. Kamar contended that
omission to comply with Section 143(1) of the NI Act does not invalidate the trial as
in the present two cases. Mr. Kamar, learned Sr. Amicus Curiae, further contended
that in case the Magistrate decides to try summarily, the previsions contained in
Sections 326(1) and 326(2) Cr.P.C. will not be applicable and therefore, except in
regard to those cases which fall within the ambit of Section 326 Cr.P.C., the
Magistrate cannot proceed with the trial placing reliance on the evidence recorded by
his predecessor. Mr. Kamar also contended that the impugned orders passed by the
learned Magistrate indicate that he decided to try the cases following the summons
procedure and relied on the judgment of the apex Court in J.V. Baharuni (supra).
8 . Mr. R.J. Boruah, learned Addl. Public Prosecutor, appearing for the State
respondent subscribed to the argument advanced by Mr. Z. Kamar, learned Sr.
Amicus Curiae.
9. I have considered the respective submissions made by the learned counsel of both
sides as above and perused records.
10. The two impugned orders, dated 12.07.2018, read as hereunder.
In NI Case No. 21/2017;
"Complainant is present.
Accuse is absent with steps.
Today is fixed for passing necessary order on petition no. 1770/18.
Vide the petition, complainant has submitted that the copies of the Bank
Statements of the Complainant Sri Nripen Borkakoti bearing A/C No.
1125010113014 with United Bank of India, Tezpur was submitted at the time
of filing affidavit as to evidence of the complainant and was also exhibited at
that time. That, now the up to date original copy of the above mentioned
bank statement of the complainant with statement and certificate from the
bank regarding its authenticity and containing the relevant transaction of the
accused is filed herewith today for kind perusal and acceptance of this Court.
Accused has filed written objection stating inter alia that complainant has
already marked bank statements as Exhibit in his evidence which was already
signed by the Court that, on 11.05.18, in order to fill up his lacuna,
complainant has intended to exhibit certificate dtd. 08.05.18 by bank up to
date account statement. That, it is a case under Special Act and there is no
any provision for granting leave for filing document on this stage of the
proceeding.
In view of the above, prayer has been made to reject the petition of the
complainant.
I have already heard Ld. Counsel for both the parties.
Perused the record which reveals that complainant has already marked and
exhibited the photocopies of his bank statements through my Ld.
Predecessor. However, considering that up to date statement and certificate

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 of bank official in respect of authenticity and genuineness of the statement
will be helpful in fair adjudication of the matter, I deem it fit and proper to
allow the complainant to mark and exhibit the same by way of filing
additional evidence. Accused will, in no way, be prejudiced as because he
will get the scope to cross-examine the complainant on this document.
In view of the above, prayer is allowed to the effect that complaint shall file
his additional evidence on affidavit to exhibit the same.
It is to be mentioned herein that his additional affidavit shall remain confined
in exhibiting the aforesaid document only.
Fix: 15.09.18 for additional evidence of the complainant.
In NI Case No. 43/2017;
"Complainant is present.
Accused is absent with steps.
Today is fixed for passing necessary order on petition no. 1771/18.
Vide the petition, complainant has submitted that he has recently been able
to procure original deed of lease bearing no. 407 dtd. 30.11.15 executed
between complainant and three other persons wherein, accused Milan Das
was a witness. That, the said document was not in his possession at the time
of filing of the case and the same is a vital and important document for
proper adjudication of the case. That, the reference of the document has
already been made earlier in the affidavit evidence of the complainant.
Accused has filed written objection stating inter alia that complainant has
already filed evidence on affidavit and marked as many as 8 documents as
exhibits. The complainant mentioned about a deed of lease as Ext. 2 and
marked the signature of the complainant and accused as Ext. 2(1). That, the
said examination-in-chief on affidavit was submitted on 17.11.17. That,
admittedly, the original was not in their possession at the time of filing the
examination-in-chief. Therefore, the marking of photocopy of documents as
Ext. 2 is questionable. That apart, complainant has not mentioned the reason
behind the documents not being in his possession. That, since this is a case
under NI Act, there is no provision to grant leave for filing document on
subsequent stage of the proceeding.
In view of the above, prayer has been made to reject the petition.
I have already heard Ld. Counsel for both the parties.
Perusal of examination-in-chief of the complainant given on affidavit reveals
that he had marked the lease deed between him and proprietor of Bihali Tea
Co. as Ext 2 but neither the original nor the photocopy of the document was
filed at the time of filing his evidence on affidavit and as such, the marking
of the document as Ext. 2 in his evidence on affidavit is erroneous.
I have gone through the original of the lease agreement submitted along with
the petition.
Perusal of the lease agreement reveals that it has relevancy with the case in
hand and will be helpful in fair adjudication of the matter.

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 Therefore, complainant is allowed to mark this document by way of filing
additional evidence. Accused will, in no way, be prejudiced as because he
will get the scope to cross-examine the complainant on this document.
In view of the above, prayer is allowed to the effect that complainant shall
file his additional evidence on affidavit to exhibit the lease deed in question.
His additional affidavit shall remain confined in exhibiting the aforesaid
document only.
Fix: 15.09.18 for additional evidence of the complainant."
11. Needless to say, despite a civil remedy, Section 138 of the NI Act is intended to
prevent dishonesty on the part of the drawer of the negotiable instruments to draw a
cheque without sufficient funds in his account in a bank and makes the payee or
holder in due course to act upon such instruments.
1 2 . The offence under Section 138 of the NI Act prescribes punishment with
imprisonment for a term which may extend to two years or with fine, which may
extend to twice the amount of the cheque, or with both. Second proviso to Section
143 of the NI Act provides that the offence under Section 138 is to be tried
summarily, following the procedure in Chapter XXI of Cr.P.C., but it is open to the
trial Magistrate to adopt the procedure of summons case provided in Chapter XX of
Cr.P.C., if in the interests of justice, the sentence of imprisonment exceeding one
year may have to be passed.
1 3 . In J.V. Baharuni case(Supra), the Supreme Court summarized the provision
contained in Section 143 and held (Relevant positions):
"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:
60.6. 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 the appellate Court
should be whether it was only the substance of the evidence that was
recorded of 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."
14. On reading of Section 326 Cr.P.C, it appears that, it is a general principle of law
that a Judge or Magistrate, who has recorded the evidence should decide the case.
However, the exception to this general principle is provided in Sub-sections (1) and
(2) of Section 326 Cr.P.C., whereunder the successor Judge or Magistrate can act on
the evidence recorded by the predecessor to obviate the necessity of a denovo trial of
part-heard case, when the Judge or Magistrate is transferred or otherwise
relinquishes his office and a new Judge or Magistrate takes over. But Sub-Section (3)
of Section 326 Cr.P.C. specifically provides that the provisions of Section 326(1) and
326(2) do not apply to summary trial. Therefore, a case under Section 138 of the NI

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 Act, which requires to be tried in a summary way as contemplated under Section 143,
if tried summarily, the restriction in Sub-Section (3) of Section 326 will be
applicable. To speak it differently, if the case is not tried in a summary way as
provided in Section 143 of the NI Act and tried as a summons case, the succeeding
Judge or Magistrate can act on the evidence recorded by his predecessor and decide
the case.
1 5 . The aforesaid legal position is succinctly explained by the Supreme Court in
Nitinbhai case (supra) as herein below extracted:
"12. Section 326 is part of the general provisions as to inquires and trials
contained in Chapter XXIV of the Code. It is one of the important principles
of criminal law that the Judge who hears and records the entire evidence
must 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
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 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.
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 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 authorizes the Magistrate who
succeeds the Magistrate who had recorded the whole or any part of the
evidence in a trial to act on the evidence so recorded by his predecessor,
does not apply to summary trials. The 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.
15. Provision for summary trials is made in Chapter XXI of the Code. Section
260 of the Code confers power upon any Chief Judicial Magistrate or any
Metropolitan Magistrate or any Magistrate of the First Class specially
empowered in this behalf by the High Court to try in a summary way all or
any of the offences enumerated therein. Section 262 lays down the procedure
for summary trial and sub-section (1) thereof inter alia prescribes that in
summary trials the procedure specified in the Code for the trial of summons
case shall be followed subject to the condition that no sentence of
imprisonment for a term exceeding three months is passed in case of any
conviction under the chapter."
16. In the case of Smti. Dipti Choudhury (supra), this Court in para 15, observed as

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 follows:-
"15. It is in the context of the summary proceeding, the Apex Court, taking
note of the mandatory language in which section 326(3) is couched, held
that when a case is tried as a summary case, a Magistrate, who succeeds the
Magistrate who had recorded the part or whole of the evidence, cannot act on
the evidence so recorded by his predecessor. It was further held that in
summary proceedings, the successor Judge or Magistrate has no authority to
proceed with the trial from a stage at which his predecessor has left it. It was
explained that provision of sub-section (1) and (2) of section 326 of the
Code have not been made applicable to summary trials because of the reason
that in summary trials, under Section 264 Cr.P.C., only the substance of
evidence has to be recorded and the Court does not record the entire
statement of witnesses. Therefore, the Judge or the Magistrate who had
recorded such substance of evidence is in a position to appreciate the
evidence led before him and the successor Judge or Magistrate cannot
appreciate the evidence only on the basis of evidence recorded by his
predecessor. The Apex Court further held that Section 326(3) of the code
does not permit the Magistrate to act upon the substance of the evidence
recorded by his predecessor, the obvious reason being that if the succeeding
Judge is permitted to rely upon the substance of the evidence recorded by
his predecessor, there will be a serious prejudice to the accused and it would
be difficult for a succeeding Magistrate to decide the matter effectively and to
do substantial justice.
23. It will appear to this Court that having regard to the purpose for which
section 143 was inserted, which is to cut short delay and thereby facilitate
expeditious disposal of trial, cases under section 138 of the Act are to be
tried summarily. Second proviso to section 143(1), however, empowers the
Magistrate to try the case other than in a summary manner by passing an
order after hearing the parties if it appears to him that a sentence of
imprisonment for a term exceeding one year has to be passed or, for any
other reason, undesirable to try the case summarily. Thus, it is not that
invariably and mandatorily an offence under section 138 of the Act has to be
tried summarily and some amount of flexibility is in-built in the section itself.
Recording of reason and opportunity of hearing is provided for in the proviso
when the Magistrate contemplates not to try the case, either at the
commencement or during continuance of a summary trial, so as not to
prejudicially affect the right of the parties to otherwise have a summary trial.
Failure to record reasons or grant opportunity of hearing before proceeding
to try the case as a summons procedure case, will not, ipso facto, render the
proceeding invalid as being without jurisdiction. It is the substance and
mode of the proceeding which is decisive. If any of the parties is aggrieved
by initiation or commencement of the trial as in a summons procedure case
without there being an order to that effect after hearing the parties, certainly
such course of action on the part of the Magistrate could be challenged in an
appropriate proceeding at the appropriate time. If the parties a low the
proceeding to go on as in a summons procedure case without any demur and
participate therein fully, it cannot be countenanced that the proceeding is to
be deemed to be a summary proceeding. Non-recording of reasons as well as
failure to grant opportunity as contemplated in proviso to section 143(1) is,
in that event, only an irregularity which does not invalidate the trial."
1 7 . It is noticed that the learned Magistrate having found prima facie ground to
proceed under Section 138 of the NI Act issued summons to the petitioner/accused

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 and on his appearance explained the aforesaid offence to him and thereafter, the
complainant/respondent filed his evidence-on-affidavit and further, before cross-
examination was done by the petitioner/accused, the respondent/complainant filed
petitions seeking permission to file the additional documentary evidence.
18. The impugned orders do not indicate compliance of second proviso of Section
143(1) of the NI Act. None of the parties raised this legal aspect before the learned
trial Magistrate. The evidence of the respondent/complainant was filed in the form of
evidence-on-affidavit as provided under Section 145 of the said Act. Therefore, as no
substance of evidence of the respondent/complainant was recorded, after offence was
explained to him, it is apparent that the learned trial Magistrate, in fact, decided to
proceed the trial as a summons case and the petitioner/accused shall get ample
opportunity to cross-examine him. Hence, the question of injustice or prejudice to
the petitioner/accused does not arise and on the other hand, the omission to comply
with Section 143(1) of the NI Act does not invalidate the proceedings.
1 9 . For the reasons, set forth above, I find no merit in both the petitions and
accordingly, the revision petitions are dismissed with direction to both the parties to
appear before the learned trial Court on 20.11.2019 to receive further instructions.
20. The interim stay orders are vacated.
21. Return the LCR.
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