HARJEET SINGH Vs. STATE OF RAJASTHAN AND ORS.

JUDGEMENT

(1.) By way of this revision, the accused petitioner Harjeet Singh has approached this Court being aggrieved of the order dated 1.9.2014 passed by the learned Additional Sessions Judge, Anoopgarh, District Sriganganagar in Cr. Appeal No. 53/2010 rejecting the application preferred on his behalf under Sec. 326(3) Cr.P.C. Facts in brief are that the petitioner was tried by the learned Judicial Magistrate First Class, Anoopgarh in Cr. Case No. 107/07 for the offence under Sec. 138 of the N.I. Act and the trial Court, by judgment dated 6.8.2010, convicted and sentenced the petitioner for the said offence. The petitioner challenged the judgment of conviction by preferring an appeal in the court of the learned Addl. Sessions Judge, Anoopgarh. During pendency of the appeal, an application was moved on behalf of the petitioner on 26.6.2013 u/S. 326(3) Cr.P.C. asserting that as the learned trial Judge did not adopt the procedure of summary trial and since evidence was recorded in the case by one Presiding Officer and the judgment was delivered by another, the proceedings conducted by the trial Court were vitiated and should be quashed in their entirety as the fundamental defect in the trial was incurable. The appellate court rejected the application by order dated 1.9.2014 upon which the petitioner accused has approached this Court by way of the instant revision.

(2.) Shri GR Goyal, learned counsel for the petitioner relied upon a judgment rendered by the Hon'ble Supreme Court in the case of Nitinbhai Saevatilal Shah and Anr. v/s. Manubhai Manjibhai Panchal and Anr. reported in : AIR 2011 SC 3076 : 2012 (1) RLW 161 (SC) and contended that the trial Court did not proceed with the case in a summary manner and therefore, the entire trial is vitiated. He urged that evidence in the case was partly recorded by one Presiding Officer and thereafter, the said Presiding Officer was transferred. The remaining evidence was recorded by another Presiding Officer, who passed the judgment against the accused. Thus, as per him, the mandatory requirement of Sec. 326 Cr.P.C. was not complied with totally vitiating the trial. As per him, the defect in the procedure adopted by the trial Court is incurable and thus, the entire proceedings undertaken by the trial Court are fit to be quashed. In the alternative, he submitted that if the Court feels that the defect is curable then, the trial Court's judgment should be quashed and the matter should be remanded to the trial Court for proceeding afresh after complying with the provisions of Chapter XXI of Cr.P.C. and as a consequence, the mandate of Sec. 326 Cr.P.C. in its letter and spirit. Shri Goyal urged that the judgment rendered in Nitinbhai's case (supra) was further considered by the Hon'ble Supreme Court in the case of Indian Bank Association & Ors. v/s. Union of India & Ors. reported in : AIR 2013 SC 2528 : 2014 (4) RLW 3598 (SC), wherein the Hon'ble Supreme Court neither differed with nor disapproved the ratio of the judgment in Nitinbhai's case and therefore, there is no escape from the conclusion that the entire trial is vitiated.

(3.) Per contra, Shri N.L. Joshi, learned counsel for the respondent No. 2 accused supported the order passed by the appellate court and urged that adopting procedure of summary trial is not mandatory in each and every complaint under Sec. 138 of the N.L. Act. As per him, the trial Court, after considering the complexities of issues involved in the matter has a discretion to decide whether to proceed with the complaint in a summary manner or to try it as a summons case. As per him, as in the case at hand, the trial Court did not pass any explicit order for proceeding in a summary manner and thus, it has to be presumed that the case was tried as a summons case. He contended that while recording evidence, examination in chief of the witnesses was recorded, the accused was afforded extensive opportunity of cross -examining the witnesses. The accused was also examined under Sec. 313 Cr.P.C. During entire trial, no objection was taken by the accused that the matter should be tried in a summary, way. As per him, no prejudice can be said to have been caused to the accused by the action of the trial Court in not adopting summary proceedings in the case. He, therefore, prayed that the belated attempt of the accused to stifle the trial Court's judgment by taking recourse to the judgment rendered by the Hon'ble Supreme Court in Nitinbhai's case is malafide. He relied upon a single bench decision of this Court in the case of Silochana v/s. State of Rajasthan reported in, 2013 (3) Cr.L.R. (Raj.) 1582 in support of his contention and urged that the revision is meritless and should be dismissed.