T.KANNAN Vs. NARAYANA SWAMI

JUDGEMENT

(1.) Common petitioner is the complainant in two cheque cases, wherein the accused are different. Those accused are the respective party respondent in the above two petitions. In both complaint cases evidence on both sides is over. Presiding officer of the court was then transferred, and another officer, present incumbent, took charge. Complainant thereupon moved separate application in both cases for de novo trial. Those applications were filed under Section 311 of the Code of Criminal Procedure, for short, 'the Code' stating that the Apex Court in Nitinbhai Saevatilal Shah and Another V. Manubhai Manjibhai Panchal and Another, 2011 AIR(SC) 3076) has held that cheque cases are to be tried summarily. In the midst of trial of cheque cases if the officer who recorded the evidence partly or fully is transferred such evidence cannot be acted upon, and the new officer has to commence the trial afresh, otherwise it will vitiate the proceedings, was the case canvassed for de novo trial.

(2.) Learned counsel for the complainant referring to Nitinbhai Saevatilal Shah's case, referred to above, contended that the observations made by the Apex Court spell out that even if the trial proceeds on the consent of parties, and not objected to by the accused, still, that will not empower the court to act upon the evidence recorded by the previous presiding officer, and, therefore, a fresh trial has to be conducted in the two cases. A reported decision rendered by this court in Balan C. V Preetha N.P and others,2012 KerHC 220) following the decision rendered by the Apex Court referred to above ordering a de novo trial in a cheque case, is also relied by the counsel to contend that a fresh trial has to be proceeded with, and the cases cannot proceed on the evidence already recorded, for their disposal. Per contra, learned counsel appearing for the respective accused in the two cases contended that the accused, both of them, have no objection in continuation of the trial and disposal of the cases relying on the evidence already recorded. According to the learned counsel what has been brought out during the cross examination of the complainant and his witnesses in the two cases is so detrimental to the complainant and, so much so, to eschew the consideration of that evidence and to bring in new materials applications under Section 311 of the Code relying on the aforesaid decision of the Apex Court have been moved by the complainant in the two cases. The accused have endorsed that they have no objection in continuing with the trial on the evidence already recorded. Acceptance of that endorsement by the magistrate to proceed with the trial for disposing them, as reflected in the two orders passed separately in the cases, does not call for any interference, is the further submission of the counsel.

(3.) The offence under Section 138 of the Negotiable Instruments Act, for short the 'Act', arising on dishonour of a cheque has been inserted in the Act with a view to enhance the acceptability of the cheques and to punish the drawer on bouncing of cheques if payment of the sum under the cheque is not paid within the period stipulated after receipt of a statutory notice intimating dishonour and demand for such sum. Chapter XVII of the Act with Sections 138 to 142 was newly inserted by way of the amendment, namely, the Banking and Public Financial Institutions and the Negotiable Instruments Laws (Amendment) Act, 1988 (66 of 1988). The aforesaid provisions inserted by amendment came into effect from 01.04.1989. However, soon it was realized that the punishment provided was inadequate and the procedure prescribed too cumbersome preventing the court from disposing the cases in a time bound manner. A working group was constituted to review Section 138 of the N.I. Act to make recommendations for suggesting such amendments as required for effectively dealing with the mischief sought to be achieved by insertion of the provisions in the N.I. Act. On the basis of the recommendations made by the working group and after consultation with the Reserve Bank of India, and other legal experts, a new bill, namely, Negotiable Instruments Amendment Bill 2001, was introduced. The bill was referred to the standing committee on Finance, which made several recommendations suggesting amendments to various provisions of the Act covered under Chapter XVII. Among other recommendations a provision for summary trial of the case under the Act with a view to speed up disposal of the cases was also recommended. On the basis of the recommendations made and after deliberation the Parliament passed the Negotiable Instruments (Amendment and Miscellaneous Provisions Act 2002), and it received the assent of the President on 17.12.2002. By virtue of that Act various amendments were made to Sections 138, 141 and 142, then, existing in Chapter XVII of the Act, and new provisions were inserted in that Chapter under Sections 143 to 147. Some more amendments were also made in some other sections of the N.I. Act as well. Reference to all amendments brought to Chapter XVII, new provisions added thereto and other sections of the N.I. Act is not called for disposal of these petitions. What has to be looked into and taken note of with reference to the earlier provision governing the procedure for trial of the offence with changes brought in by amendment in the trial, that alone need be considered for the purpose of disposal of these two petitions.