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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.1127 OF 2006
Tanaji Dinkar Wadakar ..Petitioner
Age : 47 years, Occu : business
R/o.S.No.18, Ingle Nagar,
Varje Naka,
Pune - 411 052
V/s.
1. Veer Chaphekar Nagari Sahakari
Pat Sanstha Ltd., a Co-op. Society
Registered and functioning under
the provisions of Maharashtra Co-op.
Societies Act, 1960 and rules made
thereunder, having its registered
office at 25/3, Satpute Bhavan,
Shiavji Nagar,
Pune - 411 005
2. Sudhir Ramchandra Allhat
Age : 35 years, Occu : business
R/o.103, Narveer Tanaji Wadi,
Shivajinagar,
Pune - 5
3. Pandurang Rajaram Patne
Age : 57 years, Occu : service ..Respondents
R/o.N.C.L.Colony, Pashan,
Pune - 8
4. Kishorbhai Kanchanbhai Shah
Age : 50 years, Occu : business
R/o.Bharti Apartment, Near
Narveer Tanaji Wadi Bus Stand,
Narveer Tanaji Wadi, Shivaji Nagar,
Pune - 5
5. Madhukar Vasantrao Kamble
Age : adult, Occu : service
R/o.18, Narveer Tanaji Wadi,
Shiavji Nagar,
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Pune - 5
6. Mahendra Dnyneshwar Marne
Age : 48 years, Occu : service
R/o.215, Agricultural College,
Khare Wadi, Pune University Road,
Shiavji Nagar,
Pune - 5
7. Anant Balwant Godambe
R/o.15, Narveer Tanaji Wadi,
Shiavji Nagar,
Pune - 5
8. Ramkrishna S. Kothavde
Age : 50 years, Occu : service
R/o.Veer Netajihouse society,
Veer Netajiwadi, behind Dalvi Hospital,
Shiavji Nagar,
Pune - 5
9. Sau.Renue Balwant Moru
Age : adult, Occu : service ..Respondents
R/o.Mantri Corner, Narveer Tanaji Wadi,
Shivaji Nagar,
Pune - 5
10.Sushma Shivajirao Jadhav
Age : adult, Occu : service
R/o.Plot No.28, Jadhav Vasti,
K.B.Joshi Marg, Bhiraya Wadi,
Shiavji Nagar,
Pune - 5
11.Shashikant Motilal Bagmar
Age : 45 years, Occu : advocate
R/o.Mantri Nagar, Narveer Tanaji Wadi,
Shiavji Nagar,
Pune - 5
12.The State of Maharashtra
Mr.S.P.Thorat, Advocate, for petitioner
Mr.Abhaykumar Apte, Advocate, for the respondent
Nos.1 to 8 and 11
Mr.Y.S.Shinde, A.P.P, for the State
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CORAM : A.S.OKA, J.
DATE : 26TH AUGUST, 2008
ORAL JUDGMENT
. The submissions of the learned counsel for
the parties were fully heard on the last date. It
will be necessary to refer to the facts of the case
in brief. The petitioner is the original
complainant who filed a complaint alleging
commission
Negotiable
of
Instruments
offence under
Act,
Section
1881
138 of
(Hereinafter
the
referred to as “the said Act”). The 1st to 11th
respondents are the accused in the said complaint.
2. An application was made on behalf of the
accused under Section 143 of the said Act praying
that the trial may be conducted as a warrant case.
The said application was rejected by the learned
Magistrate. The accused a preferred a Revision
Application before the Sessions Court. By the
impugned Judgment and Order dated 22nd March, 2006,
the learned Sessions Judge has interferred and by
allowing Revision Application it was directed that
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the learned Magistrate will the conduct the
Criminal case as a warrant triable case. This is
the Order impugned in this petition under Article
227 of the Constitution of India read with Section
482 of the Code of Criminal Procedure, 1973.
3. The learned counsel for the petitioner
invited my attention to Section 143 of the said
Act. He submitted that there was no occasion to
invoke the second proviso of sub-section (1) of
Section 143 at a stage when even the trial was not
started. He submitted that learned Magistrate was
empowered to try the case by adopting summary
procedure.
4. The learned counsel appearing for the
accused supported the impugned Order by pointing
out that the stand of the accused is that accused
Nos.4 to 11 resigned from the post of the Director
of the 1st accused. He submitted that the question
is whether accused Nos.1 to 3 have committed any
offence especially when the said accused had shown
willingness to deposit the cheque amount subject to
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the petitioner depositing Term Deposit/Fixed
Deposit receipts with the 1st accused. He submitted
that apart from the fact that the learned
Magistrate was not empowered to conduct the matter
summarily, considering the defence of the
petitioner, the case ought to have been treated as
a warrant triable case. He submitted that no
interference was called for.
5.
I have carefully considered the submissions.
The reasons recorded by the learned Sessions Judge
for allowing Revision Application are found in
paragraph 4 of the Order which reads thus :-
“Mr.Zende, the learned counsel for
respondent No.1 submits, on the other hand, that
even if the learned Magistrate has not been
conferred with the powers by the Hon’ble High
Court for holding summary trial, the provision
of Section 143 N.I.Act which is a provision
under a Special Act will override the general
provision Uss.260 and 261 Cr.P.C. It is not
possible to agree with Mr.Zende. Section 143
N.I.Act contemplates summary trial of cases
filed U/s.138 N.I.Act. It is only when it appears
to the Magistrate 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 that it is, for any other reason,
undesirable to try the case summarily, that
he after hearing the parties, may hear the
case in the manner provided under the
Cr.P.C. The conferment of powers for
summary trial by the Hon’ble High Court
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U/s.261 Cr.P.C. upon J.M.F.C. is conferment
of a power which is of foundational nature,
but for such conferment of power, the
Magistrate cannot try any case summarily.
Had the provision U/s.143 N.I.Act been such
that the only method of trial provided
thereunder was summary trial, one probably
could have accepted the argument of
Mr.Zende. Since the very section contemplates
trial of such cases by other mode also, it cannot
be said that the provision would override the
general provision under Cr.P.C. Hence, the
order.”
6. It will be necessary to refer to Section 143
of the said Act which reads thus :-
“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 sections 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 fine 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 exceeding 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
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hear or rehear the case in the manner provided by
the said Code.”
7. Sub-section (1) of Section 143 starts with
non-obstante clause. Sub-section (1) provides that
offences under Chapter XVII of the said Act of 1881
shall be tried by a Judicial Magistrate of the
first class or by a Metropolitan Magistrate. The
said Section provides that the provisions of
section 262 to 265 of the said Code apply to such
trials. Thus, a forum is created by Section 143
itself which lays down the procedure to be followed
in the trial of the complaint. Reliance was sought
to be placed on Clause (c) of sub-section (1) of
Section 260 of the said Court by contending that a
Magistrate of the 1st Class cannot try a case
summarily unless he was specially empowered in this
behalf by the High Court. In view of the non-
obstante clause used in Section (1) of Section 143
of the said Act, a Judicial Magistrate of the first
class is empowered to try an offence under Section
138 of the said Act though, he may not be specially
empowered in that behalf as required by Clause (c)
of sub-section (1) of Section 260 of the said Code.
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Therefore, notwithstanding the fact that a
Magistrate of the first Class is not specially
empowered by this Court, by virtue of sub-section
(1) of Section 143 of the said Act, a Magistrate of
the first class gets jurisdiction to try an offence
under Chapter XVII of the said Act by following the
procedure laid down therein. Therefore, to this
extent the learned Sessions Judge was not right.
8.
Under the second proviso of sub-section (1)
of Section 143 of the said Act, in two
contingencies the learned Magistrate can decline to
try the case by following Sections 262 to 265 of
the said Code. The first contigency is in a case
where at the commencement of or in the course of a
summary trial, it appears to the learned Magistrate
that the nature of the case is such that the a
sentence of imprisonment for a term exceeding one
year may have to be passed. The second contingency
is when for any other reason, it is undesirable to
try the case summarily. The second provisio
further lays down that such order can be passed by
the learned Magistrate after hearing the parties
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and after recording reasons to that effect.
9. In the present case, obviously the first
contingency had not arisen. There is no finding
recorded by the learned Sessions Judge or learned
Magistrate that it is undesirable to try the case
summarily.
10. Therefore, considering the stage at which
the order was passed by the learned Magistrate, he
was justified in rejecting the prayer made by the
accused for adopting procedure of warrant case.
Therefore, the impugned order will have to be
quashed and set aside. It is, however, made clear
that if a case in that behalf is made out, it will
be open for the learned Magistrate to pass
appropriate order at appropriate stage in terms of
second proviso to sub-section (1) of Section 143 of
the said Act.
11. Hence, I pass the following order.
(i) Subject to what is observed above, impugned
Judgment and Order dated 22nd March, 2006, is
quashed and set aside and Criminal Revision
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Application No.528/2005 will stand
dismissed.
(ii) Writ Petition is allowed in above terms with
no order as to costs.
(A.S.OKA, J.)
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