- (1.) THE instant petition has been filed under Section 482 of Code of Criminal Procedure invoking inherent jurisdiction of this Court for seeking to quash the order dated 11.01.2013 (Annexure P -1) passed by Sub Divisional Judicial Magistrate, Phagwara declining the prayer for a de novo trial.
(2.) LEARNED counsel for the petitioner submits that there was a procedural illegality committed by the Magistrate by not specifically passing an order that the case required to be tried as summons case instead of adopting summary procedure under Section 143 of the Negotiable Instruments Act, 1881 (for short the 'Act') Criminal complaint was instituted by the respondent under Section 138 of the Act for dishonour of the cheque dated 30.09.2007 for a sum of Rs.5,00,000/ -. Evidence was recorded by predecessor of the Magistrate where the trial is now pending. Section 143 of the Act reads as under: - " 143. Power of Court to try cases summarily. - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of Section 262 to 265 (both inclusive) of the said Code shall, as far as may be apply to such trials. Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of find exceeding five thousand rupees: Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exeeeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code. (2) The trial of a case under this section shall, so far as practicable, consistently with the interests of justice, be continued from day to day until its conclusion, unless the Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded in writing. (3) Every trial under this Section shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint."
(3.) AFTER hearing learned counsel for the petitioners, I do not find any reason to interfere with the order of Magistrate in exercise of inherent jurisdiction of this Court. The aforesaid controversy has been elaborately dealt with by the Kerala High Court in T.Kanan Vs. Narayana Swami,2013 1 CivCC 279 as under: - "5.Whether the aforesaid section commencing with a non -obstante clause mandates trial of the offence under Section 138 of the N.I. Act summarily, or is it only an empowerment of the magistrate to try such offence even summarily, enabling him to do so, is the question to be examined. The marginal heading of the Section states of the empowerment of the court to try the cases summarily. Sub - Section (1) of that Section mandates that the offences under the Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate. In the trial of the case for such offence it is stated the provisions of Sections 262 to 265, both inclusive, of the Code of Criminal Procedure shall 'as far as may be' applied. Is there any significance for the words 'as far as may be' which is added to while providing for a trial following the provisions of Sections 262 to 265 of the Code? That has to be looked into with reference to the aforesaid sections. Section 262 of the Code governs the procedure for summary trial. Sub -Section (1) of that section states that the procedure for trial of a summons case has to be followed with the exceptions mentioned in the following sections under Chapter XXI. Under the Code when an offence is tried summarily on conviction the maximum sentence of imprisonment can be only three months. But with respect to the offence under Section 138 of the N.I. Act, even if such offence is tried summarily, the magistrate is competent to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding the limit fixed under Section 29 of the Code. Code contemplates of summary trial in petty offences for which the maximum punishment that can be imposed is only three months. Speedy trial of such petty offences enabling the magistrate to record the substance of the evidence, dispensing with recording of evidence as in a regular trial, is provided for in petty cases. However, sub - Section (2) of Section 260 of the Code makes it abundantly clear that during the course of such summary trial in a petty case if it appears to the magistrate that it is undesirable to try the case summarily he shall recall the witness already examined and proceed to rehear the case in the manner provided by the Code. So much so, even in a petty case which could be tried summarily the magistrate if it appears that such trial is undesirable, can switch over to other procedure provided by the Code. So much so, even in cases commenced as summary trial the Code empowers to switch over to a different procedure provided. The phraseology 'as far as may be' used in Section 143 makes it abundantly clear that the magistrate is not bound to follow the procedure for summary trial and he has a discretion to follow it or not. Second proviso to sub section (1) of Section 143 of the N.I.Act empowers a magistrate even in a case which has been commenced in a summary manner, to recall any witness already examined or rehear the case in the manner provided by the Code. What is required is only a primary satisfaction of the magistrate that the nature of the case is such that a sentence for punishment for a term of one year may have to be passed, or, for any other reason it is undesirable to try the case summarily. Only requirement on arriving of such satisfaction to switch over to a different procedure provided under the Code from summary trial already proceeded is recording of an order thereof by the magistrate. The nonobstante clause under sub section (1) of Section 143 of the Act enabling the magistrate to try the offence following the provisions under Sections 262 to 265 of the Code though the punishment for such offence on conviction overrides the interdiction under sub -Section (2) Section 262 of the Code has necessarily to be examined with reference to the words 'as far as may be' which clearly makes out that there is discretion to the magistrate whether to follow summary trial or to proceed with trial for the offence as in a summons case. The aforesaid words 'as far as may be' makes it clear that it is not mandatory for the magistrate to follow the procedure for summary trial as contemplated under Section 262 to 265 of the Code in the trial of the offence under Section 138 of the N.I. Act. " Learned counsel for the petitioner however referred to a judgment of this Court in M/s G. and G. Pharmaceuticals and anr. Vs. Smt. Rama Sharma in Crl.Misc.No.M -7132 of 2013 decided on 31.05.2013, in support of his contentions. That order was passed by this court on a concession by the respondent and does not lay down the principles of law.;