In CRM-M-4299-2016(O&M)-PUNJ HC- Second proviso to Sec.143 of NI Act contemplates hearing of parties before directing case to be tried as summons case, but non-compliance thereof does not vitiate entire proceedings: P&H HC Justice Vinod S. Bhardwaj [22-04-2022]

Read Order: Sudershan Kumar Mittal v. Ravinder Kumar Mittal

Monika Rahar

Chandigarh, April 25, 2022: While dealing with a petition assailing the Trial Court order directing the trial of a cheque bounce case involving a huge sum to be conducted a summons case, the Punjab and Haryana High Court has held that the order of the Magistrate to try the case as a summons case is not an irregularity that would vitiate the proceedings. The Court noted that even though the second proviso to Section 143 of NI Act contemplates affording of hearing to the parties before directing a case to be tried as summons case, however, non-compliance thereof does not vitiate the proceedings. 

The Bench of Justice Vinod S. Bhardwaj held,“Considering that witnesses shall have to be recalled and the proceeding have to be reconducted, hence, the necessity of affording a hearing to the parties was incorporated as it may have a bearing on an accused in the form of defeating his right to speedy justice. Such a provision does not come to effect with the same degree of force when the trial is yet to commence and the said order is not likely to result in recall/re-examination of the witnesses or amount to re-hearing of the case. The rider to hear the parties and record an order preceeds recalling of any witness, who may have been examined.”

It was also opined that a provision may be couched in mandatory terms, yet it can be directory and the use of the word “shall” may not by itself, make the clause mandatory. 

The complaint in question was filed by respondent-Ravinder Kumar Mittal against the petitioner who issued a cheque towards existing part liability with an assurance that the cheque shall be encashed on its presentation in the bank. On being encashed, the cheque was returned unpaid with remarks “funds insufficient” and “drawers signature differ”. After sending the statutory notice, the complaint in question was instituted and the petitioner-accused was summoned to face trial under Section 138 of the Negotiable Instrument Act. 

Considering the huge amount of the cheque the Trial Court held that the case may warrant imprisonment of more than one year and as such, it is undesirable to try the case in a summary manner. Accordingly, the case was tried as a summons case. Notice of accusation was served upon the petitioner-accused. The present petition was thus filed by urging that the order was in conflict with the mandate of Section 143 of the Negotiable Instrument Act, which relates to the power of a Court to try the cases summarily. 

The case of the petitioner’s counsel was that the opinion to try the case as a summons case has to be formulated during the course of trial and as the trial has to commence after the notice of accusation, hence the impugned order was bad and liable to be set aside. It was further argued that the impugned order was passed without affording any opportunity of hearing to the petitioner and that the said order was prejudicial, inasmuch as the petitioner can now also be punished for a sentence exceeding 01 year, hence, it was mandatory for the Court to have granted an opportunity of hearing to the petitioner-accused before treating the case as a summons case. 

On the other hand, the counsel for the respondents argued that the petition was nothing but an abuse of the process of law on the grounds that the petition was filed after a delay of two and a half years and the trial has already come to an end. He further submitted that no prejudice was caused to the petitioner by directing the case to be treated as a summons case instead of trying it summarily. He also added that the accused got a better chance to prove his innocence and to confront the witnesses.

After a bare perusal of Section 143 of the NI Act, the Court observed that the second proviso to Section 143(1) used the expression “at the commencement” and “or in the course of”. From such usage, the Court opined that while it is well settled in law that commencement of trial shall accrue on serving of notice of accusation, however, the use of the phrase “or in the course of” has to be assigned a meaning. 

The phrase “in the course of a summary trial” invariably has a wider import and is attracted even prior to serving of notice of accusation and it cannot be interpreted to mean “at the commencement” of a trial, the Court asserted.

Further, Justice Bhardwaj observed that “Course of trial” is plainly separate from “commencement of trial” as while the legislature prescribed a definite stage in the expression “commencement of trial”; no such stage is circumscribed by the legislature when using “in the course of trial” and the same is thus wider in its interpretation and applicability. 

On the object behind the incorporation of Section 143 NI Act, the Court opined the incorporation of Section 143 to 147 was aimed at early disposal of cases in simplified procedure and more particularly to do away with the stages and process in a regular criminal trial that normally cause inordinate delay in its conclusion and to make a trial procedure as expeditious and possible without in any way compromising with the right of the accused to a fair trial. It was added that there is no straitjacket formula classifying a case to be tried as a summary trial or as a summons case in offences falling under the Negotiable Instruments Act. 

Thus, it was held that the law provided, therefore, was so flexible that it was up to the prudent judicial mind to try the case summarily or otherwise. 

Moving to the issue of whether the entire proceeding would be vitiated due to the trial of the case as a summons case, the Court opined that the doctrine of “sublato fundamento cadit opus” would not take away the foundation of the case to be tried as a summons case and vitiate the proceedings initiated in the case. 

In this respect, it was also opined that the order of the Magistrate to try the case as a summons case is not an irregularity that would vitiate the proceedings. Hence, Justice ___ expounded that even though the proviso to Section 143 contemplates affording of hearing to the parties before directing a case to be tried as a summons case, however, non-compliance thereof does not vitiate the proceedings.

Apparently, the said proviso contemplates a situation where the order to try the case as a summons case is passed by the Magistrate after commencement of the trial and where certain witnesses have been recorded, observed the Court while stating that considering that witnesses shall have to be recalled and the proceeding has to be reconducted, the necessity of affording a hearing to the parties was incorporated as it may have a bearing on an accused in the form of defeating his right to speedy justice. 

Such a provision, the Court added, does not come to effect with the same degree of force when the trial is yet to commence and the said order is not likely to result in recall/re-examination of the witnesses or amount to re-hearing of the case. 

“The rider to hear the parties and record an order precedes recalling any witness, who may have been examined”, held the bench. 

Additionally, the Court held that a provision may be couched in mandatory terms yet it can be directory and the use of the word “shall”, may not by itself, make the clause mandatory. Thus, it was held that the non-compliance to the second proviso to the extent of failure to grant a hearing would not vitiate the trial. 

On the facts of the case, the Court observed that the delay shown by the petitioner in approaching the Court was not well explained and the plea of prejudice to the petitioner on account of the possibility of his being imprisoned for the term prescribed was also not found plausible by the Court. 

In this regard, the Court held, 

“A prejudice has to be established and an apprehension of higher sentence is not a prejudice since sentencing or conviction are to be awarded after following the procedure prescribed in law and after affording opportunity of hearing to the respective parties.”

The petition was thus dismissed with a direction to the Trial Court to expediently decide the main case itself.