KISHORE PALLEI Vs. ARUNA KUMAR PANDA

JUDGEMENT

(1.) Order dated 17.02.2012 passed by the learned J.M.F.C., Khallikote in I.C.C. No.2 of 2006 directing the complainant to come ready with his witnesses on the next date for evidence de novo has been assailed in this criminal revision.

(2.) The complaint case in question is one under Section 138 of the Negotiable Instruments Act,1981 (in short "the N.I. Act"). The trial of the complaint case began on 22.08.2008 by following summons procedure as contained in Chapter-XX of the Code of Criminal Procedure,1973 by the then J.M.F.C. When the complaint case had been fixed for argument after closure of evidence from both sides, the present J.M.F.C., Khallikote joined on transfer in place of his predecessor-in-office. Without hearing arguments, the learned J.M.F.C. passed the impugned order holding thatin terms of Section 143 (1) of the N.I. Act a complaint case under Section 138 of the said Act is to be tried in summary procedure as provided in Sections 262 to 265 of the Cr.P.C. and that departure from summary procedure is possible only when the requirement of the second proviso to Section 143(1) of the N.I. Act is satisfied, that is to say, if the Magistrate passes an order after hearing both parties 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 for any other reason it was undesirable to try the case summarily. The learned J.M.F.C. has stated in the order that neither at the commencement nor in course of trial under the section any such order has been passed. He, therefore, instead of hearing arguments, fixed the complaint case for de novo trial to 29.02.2012 and directed the complainant to come ready with his witnesses in view of the provision prescribed in Section 326(3), Cr.P.C.

(3.) The learned counsel for the accused-petitioner contended that since the trial of the complaint case was held by following summons procedure and not summary procedure, Section 326 (3) of the Cr.P.C. was not a bar for the learned J.M.F.C. to proceed further from the stage of argument of the case. It is also his submission that adoption of summary procedure in terms of section 143(1) of the N.I. Act for trial of the complaint case is not mandatory in view of the expression, "as far as may be" occurring in sub Section (1) of Section 143 of the Act read with the second proviso, and therefore, the trial conducted in the instant complaint case by following summons procedure cannot be said to be illegal and, therefore, the impugned order directing for de novo trial is unsustainable.