Moses Devaraj vs Balu

Anand Byrareddy, J.—I.A.2/2013 is allowed. Special leave is granted. There is a delay of 14 days in filing the present appeal. The respondent though having been served with the notice of the application seeking condonation of delay, is unrepresented. Therefore, the delay for the reasons stated in the affidavit in support of the application, is condoned and the appeal is considered on merits.

The appeal is filed on a limited ground of the complaint having been dismissed on the ground that the complainant did not present himself for cross-examination and has been discharged and therefore, the evidence of the complainant has been negated and consequently the accused has been acquitted.

The learned counsel for the appellant would candidly admit that the complainant was absent on the date when the matter was set down for cross-examination. This was on account of a default committed by the counsel for the complainant, in having noted down the wrong date of hearing as a result of which the respondent was acquitted. Since Section 362 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ''the Cr.P.C., for brevity), does not empower the court once having passed judgment, to recall or reconsider the same, the present appeal is filed before this Court.

The learned counsel would submit that there is indeed a default which ought not to take away the right of the complainant to prosecute his complaint which is otherwise bona fide. He would also point out that though the court below has opined that the case was being tried as a summons case, this was on a misconception of the material on record. The opinion formed that the predecessor of the Presiding Magistrate had treated the case as a summons case and had recorded evidence as if it was a summons case, is a misconception, when the evidence was not recorded as if it was a summons case, but it was in accordance with Section 145 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the NI Act", for brevity).

Therefore, in terms of Section 145 of the NI Act, unless there was an application by the accused, seeking a direction from the Court to the complainant, to present himself for cross-examination, the question of the said witness tendering himself for cross-examination in the usual course, is not contemplated and therefore, he would submit that the court below was not justified in holding that the complainant had not presented himself for cross-examination as if it was a summons case and to have negated the evidence on record and seeks intervention of this Court.

The learned counsel for the appellant would state that from the sequence of events, in the proceedings, the complainant had filed his affidavit in evidence and the same was recorded by the Court. It was thereafter that there was a transfer of the Presiding Officer. The succeeding Magistrate by his order dated 11.01.2011, drawing inspiration from a decision of this Court in M/s. Mesh Trans Gears Private Limited Vs. Dr. R. Parvathreddy, , has opined that in the present case, his predecessor had treated the case as a summons case and had recorded the evidence. Therefore, there was no need to record the evidence de novo and has proceeded further. The court below has further taken a view that the complainant ought to have presented himself for cross-examination even though there was no such request or plea by the accused.

Therefore, the procedure followed, in that, the court below has treated the case as a summons case and has thereafter taken a view that the complaint ought to suffer by default and has acquitted the accused. This is found to be inconsistent with the facts and circumstances. The trial was apparently a summary trial, this is as prescribed by the NI Act. The complainant has tendered evidence by way of affidavit, in terms of Section 145 of the NI Act. There is no warrant for the complainant to present himself for cross-examination in the usual course. It is only on an application by the accused that such a step was warranted.

The Trial Court has apparently concluded otherwise on the footing that in a summary trial, the evidence of the witnesses is not recording verbatim, but it is only the gist of the statements that are required to be recorded. This is the reason that there is a requirement of a de novo recording of evidence - if evidence is recorded by one Magistrate and the judgment is to be rendered by a Magistrate other than the one who had recorded the evidence.

The present case did not take on the colour of a summons case merely because the evidence of the complainant was submitted by way of an affidavit that comprehensively narrated his case.

It is only in a circumstance that the Trial Court arrives at a conclusion that having regard to the circumstances of the case, a summary trial would not adequately address any issues thrown up that a Magistrate is required to expressly record that the case is being treated as a summons case, notwithstanding that it is for an offence punishable under Section 138 of the NI Act.

There was no indication that the case was treated as a summons case by the earlier Magistrate. But, the opinion formed by the succeeding Magistrate is apparently on account of the affidavit evidence having been tendered as opposed to the gist of the evidence being recorded. This variance of procedure - namely, though the procedure prescribed for the trial of a case under the NI Act being the summary trial procedure, the prescription of the receipt of the complainant's evidence by way of an affidavit does not clothe the case as being one under a summons case and hence, in the absence of a request for the presence of the complainant for the purpose of cross-examination, there could not be a presumption of default, which would have been the natural consequence if it was indeed a summons case. The opinion of the Trial Court was hence not tenable. Therefore, the accused having been acquitted on the ground that there was no evidence in support of the complaint in the above circumstances, cannot be sustained.

The appeal is summarily allowed. The judgment of the court below is set-aside. The matter is remanded to be considered afresh and since the Presiding Officer who had received the evidence of the complainant is said to have been transferred, the procedure to be followed in a summary trial shall ensue and therefore, the court below shall proceed in accordance with law, from the stage of considering whether the evidence of the complainant would have to be recorded de novo or whether the affidavit that is filed on record would be sufficient to proceed further.

It is to be observed that even, if the evidence were to be recorded de novo, the circumstance that an affidavit of the complainant is received as evidence, would only require a formal repetition of the procedure in the complainant appearing before the court and reiterating that he stands by the statements made in the affidavit which is already on record. This exercise may be gone through in keeping with the form, and the court shall proceed further, in accordance with law. The proceedings are accordingly restored before the court below, in terms as above.