KANAKARAJAN Vs. VIPIN

JUDGEMENT

(1.) Whether a specific order switching over the summary trial to a summons trial is required in a proceeding under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act'), when at the commencement of or in the course of a summary trial, it appears to the Magistrate that summary trial is undesirable Can such switching over of the proceedings from one to another be made passively in silence Whether the lack of such a specific order would vitiate the trial These are the questions that arise for decision in this Revision Petition.

(2.) The revision petitioner is the accused in C.C.No.340/2012 on the files of the Special Judicial First Class Magistrate (Marad cases), Kozhikode. He was prosecuted for the offence punishable under Section 138 of the N.I.Act on a complaint filed by the 1st respondent. After trial, the learned Magistrate found the revision petitioner guilty of the said offence and convicted thereunder. He was sentenced to undergo simple imprisonment for two months and to pay a compensation of Rs.3 lakhs to the complainant under Section 357(3) of the Cr.P.C. In default, to undergo simple imprisonment for two months. Aggrieved by the conviction and sentence, though he had preferred Criminal Appeal No.761/2012 before the Court of Session, Kozhikode Division, the appellate court also confirmed the verdict of guilty and conviction, but modified the sentence. The substantive sentence of imprisonment was set aside. The direction to pay a compensation of Rs.3 lakhs was modified to pay a fine of Rs.3,10,000/- and in default, to undergo simple imprisonment for two months and if the fine amount is paid or realised, the same shall be given to the complainant as compensation under Section 357(1) (b) of the Cr.P.C. The concurrent findings of conviction and modified sentence are under challenge in this Revision Petition.

(3.) Though this Revision Petition has been filed on various grounds challenging the merits of the impugned judgment, the learned counsel for the revision petitioner mainly canvassed the point, challenging the maintainability of the proceedings of trial, caused by the procedural irregularity. Though notice had been served on the 1st respondent/complainant, he did not enter appearance.