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Judgment
N. Ananda, J.—The learned Magistrate has acquitted respondent (hereinafter referred to as ''accused'') for an offence punishable u/s 138 of the Negotiable Instruments Act, 1881 (for short, ''the Act''). Therefore, appellant (hereinafter referred to as ''complainant'') is before this court. I have heard learned counsel for appellant. The learned counsel for respondent absent. I have gone through the records.
The complaint was registered for an offence punishable u/s 138 of the Act. u/s 143 of the Act, offences under Chapter XVII of the Act shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials.
u/s 262 Cr.P.C., in a trial under this Chapter, the procedure specified in this Code for trial of summons case shall be followed except as provided under sub-section (2) of section 262 Cr.P.C., which reads thus:-
(2) No sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this Chapter.
In the case on hand, complaint was initiated alleging an offence punishable u/s 138 of the Act for dishonour of two cheques issued by accused.
As per the averments of complaint, dishonoured cheques are cheques bearing No. 310298 dated 10.03.2010 for a sum of Rs. 5,89,000/- and cheque bearing No. 928647 dated 26.06.2010 for a sum of Rs. 4,20,000/-.
The learned Magistrate has not recorded substance of accusation as required u/s 251 Cr.P.C. The substance of accusation found in the records reads thus:-
Substance of Accusation
It is alleged by the complainant that you had issued cheque dated 10.3.10 bearing No. 310298 drawn on State Bank of India for Rs. 5,89,000/- to discharge the debt due to the complainant and on presentation, it was returned with an endorsement as insufficient funds and you did not make payment of the amount of the same within the time stipulated after issuance of statutory notice and thereby you have committed an offence punishable U/s 138 of N.I. Act.
Do you plead guilty or do/you have any defence to make?
Ans:
(Certified that the substance of accusation is read over and explained to the accused in the language known to him)
(Panchakshari M.) XIII Addl. C.M.M. Bangalore
Date: 16.5.11
In the first place, in substance of accusation, there is no reference 10 cheque bearing No. 928647 dated 26.06.2010 for a sum of Rs. 4,20,000/-. In the second place, the learned Magistrate has not signed substance of accusation to indicate that it was read over to accused. In the third place, learned Magistrate has not read over statement of accusation to accused and has not recorded the answer of the accused. The answer to the substance of accusation is blank.
It is needless to state that learned Magistrate has to frame substance of accusation which shall be read over to accused. The answer of accused to substance of accusation shall be recorded. The substance of accusation recorded by the learned Magistrate is contrary to the provisions of section 251 Cr.P.C.
In a decision reported in Mahant Kaushalya Das Vs. State of Madras, , the Supreme Court has held:-
The requirements of section 243 are mandatory in character and a violation of these provisions vitiates the trial and renders the conviction invalid.
Therefore, without going into merits of the case, I hold that impugned judgment cannot be sustained. In the result, I pass the following:-
ORDER
The appeal is accepted. The impugned judgment is set aside. The matter is remanded to learned Magistrate to record substance of accusation in accordance with the provisions of section 251 Cr.P.C. and proceed with the case. Both parties are at liberty to adduce further evidence, if they so desire. The learned Magistrate shall decide the case within three months from the date of receipt of a copy of this judgment.