P&H HC allows Trial of cheque dishonour complaint as summons case, since sentence of imprisonment exceeding one year could be passed

Read Order: Subhash Chand Sharma v. Sanjay Thakran 

Monika Rahar

Chandigarh, January 25,  2022: The Punjab and Haryana High Court has allowed the Trial of a cheque dishonour case as a summon case based on the second proviso of Section 143 of NI Act and the findings recorded by the Trial Court which were to the effect that owing to the huge amount involved in the case, a sentence of imprisonment exceeding one year could be passed, therefore, trying the case summarily would be undesirable.  

Section 143 of the NI Act provides for the power of a Court to try cases summarily, while its second proviso states that if during the summary trial of a case under this section, the Magistrate opines 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 the Court finds it undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and proceed to hear and rehear the case in the manner provided by the Cr.P.C. 

The Bench of Justice Meenakshi I. Mehta observed that keeping in view the huge amount of the cheque in question, the lower court’s observations cannot be held to be unjustified at all and rather, when tested on the touch-stone of the provisions as contained in the second proviso appended to Section 143 of the NI Act, it emerges that the impugned order and judgment do fulfil the pre-requisites, as envisaged therein, to exercise the power to decide the mode of the trial of the Complaint Case under Section 138 of the NI Act. 

In the present case, the respondent-complainant filed a Criminal Complaint case against the petitioner under Section 138 of the Negotiable Instruments Act, 1881 (the NI Act) alleging the dishonour of a cheque issued by him (petitioner). After hearing both the parties, the Court decided to try the said Complaint Case as a summons case. The petitioner assailed this order in a Criminal Revision but the Revisional Court dismissed his petition by the impugned judgment. Hence, feeling aggrieved by the same, the petitioner preferred the instant petition under Section 482 Cr.P.C. 

The case of the petitioner’s counsel was that the trial Court decided to try the said Criminal Complaint case as a summons case without recording any cogent reasons for the same and that the Revisional Court also misconstrued the provisions of Section 143 of the NI Act while passing the impugned judgment. 

The Court looked into the orders passed by the Trial Court and the Revisional Court and concluded that the trial Court categorically observed in its Order that the nature of the case was such that the sentence of imprisonment exceeding one year could be passed, and thus it considered it undesirable to try the case summarily and rather opted for the trial of the case as summons case. The Revisional Court also showed its agreement with the reasoning of the Trial Court while observing that the amount involved in the case was huge. 

So far as the precedents governing this issue were concerned, the Court first made reference to the judgment of the Rajasthan High Court in  Tripati Vyas vs. State of Rajasthan & another, 2013(4) R.C.R.(Criminal) 110 (Rajasthan), wherein it was held that the Judicial Magistrate would be at liberty to try a complaint case as summons case if it appears that the sentence of imprisonment for a term exceeding one year may have to be passed and he may further hold summons trial when he finds it undesirable to try the case summarily and then, he would record the order after hearing the parties. 

Further reference was made to another case of the Ra in In Re: Expeditious Trial of Cases under Section 138 of NI Act 1881,Suo Motu Writ Petition (Crl.) No.2 of 2020,  in which the Court asked the High Courts to issue practice directions to the Magistrates to record the reasons before converting the trial of the Complaints under Section 138 of the NI Act from summary trial to summons trial in exercise of the power under the proviso to Section 143 of the NI Act. 

Lastly, the Court observed that in the case of Swaminatha Pillai vs. Mr. A. Senthil Kumar 2013(5) R.C.R. (Criminal) 429 (Madras), it was observed by the Madras High Court that the adoption of the procedure contemplated for a summon case should be the result of a conscious decision of the Court and not mere happenchance. 

Coming to the factual aspects of the case again, the Court adjudged that the petitioner disputed the very factum of his liability to pay any amount to the complainant and that being so, the trial of the said Criminal Complaint as summons case would, rather, facilitate the logical adjudication of the said dispute between the parties by the trial Court while appreciating and evaluating the evidence that may be led by them on the record in support of their respective contentions in this regard. 

Thus, while observing that the Trial Court was within the bounds of law and it recorded the specific reasons for opting to try the said Criminal Complaint as a summons case, the Court dismissed the petition.