Lal Chandra Shukla vs State Of U.P. Thru. Addl. Chief ...
2022 Latest Caselaw 4536 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Reserved on 25.3.2022
 
Delivered on 30.5.2022
 
Court No. - 17
 

 
Case :- APPLICATION U/S 378 No. - 3 of 2022
 
Applicant :- Lal Chandra Shukla
 
Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Home And Another
 
Counsel for Applicant :- Rama Pati Shukla
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Shree Prakash Singh,J.

1. Heard Sri Rama Pati Shukla, learned counsel for the applicant/appellant, Sri Anirudh Kumar Singh, learned A.G.A.-I for the State, and perused the record.

2. This application has been filed with the prayer to grant Special Leave to Appeal, which is sought to be preferred against the order dated 23rd of December 2021 passed by the Additional Court, Faizabad whereby the Complaint Case No. 222 of 2021 filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the N.I. Act'), Police Station Kotwali Ayodhya, District Faizabad was rejected.

3. Learned counsel for the applicant submits that legal question is involved in the matter as to whether the Magistrate, while invoking the provision under Section 138 and 143 of the N.I. Act can proceed matter as a summon trial. Further whether Section 256 of the Indian Penal Code can be invoked without assigning reasons while proceeding with the summary trial under Section 143 of the N.I. Act.

4. Learned counsel for the applicant submits that the Court cannot proceed under Section 256 as the order impugned dated 23rd of December 2021 has been passed invoking the jurisdiction under Section 256 of the I.P.C. whereas the matter is to proceed as summary trial and the same will proceed as per the provisions of Section 262 to 265 of the Criminal Procedure Code.

5. Considering the aforesaid provisions as well as going through the record, it is evident that a pure legal question is involved in this matter and, prima facie, it seems that the Magistrate has wrongly invoked the jurisdiction under Section 256 of the Cr.P.C. In such view of the matter, the application of the applicant with the prayer to grant leave to appeal under Section 378 (4) of the Cr.P.C. is hereby allowed.

6. Leave to appeal is granted.

7. The factual matrix of the case is that Complaint Case No. 222 of 2021, Lal Chandra Shukla Vs. Rajdev, under Section 138 of the N.I. Act was filed on the ground that in the month of January 2015, an amount of Rs.20 lakhs was taken by the accused-respondent no.2 as debt and respondent no.2 promised that he will return the aforesaid debt amount within a period of one year. The said amount was not returned to the appellant within the time as was promised by the respondent no.2.

8. The appellant, when asked about repayment of the aforesaid debt, the respondent no.2 issued two cheques (bearing nos. 666167 and 666168) each for an amount of Rs.10 lakhs of his Account No.10294106494 of State Bank of India, Branch Faizabad, District Faizabad (now Ayodhya). On receiving the aforesaid cheques, the appellant presented the same on 1st/2nd of February 2017 in his bank account of Bank of Baroda, U.P. Gramin Bank, Ayodhya. On the aforesaid presentation of the cheques, the bank informed the appellant on 4th of February 2017 that those cheques issued by the respondent no.2 were dishonoured due to insufficient fund in the account of the respondent no.2. On receiving the aforesaid information, the appellant sent notice under Section 138 of the N.I. Act to the respondent no.2, which he has refused to receive.

9. In the aforesaid circumstances, the appellant presented the appeal before the Chief Judicial Magistrate, District Faizabad, which was transferred for hearing to the Additional Court.

10. After the institution of the aforesaid case, the learned trial court taking the recourse as provided under Chapter XV of the Criminal Procedure Code, 1973 (hereinafter referred to as 'the Cr.P.C.') issued summons and, after the service of summons, when the respondent no.2 did not appear before the trial court, bailable warrants were issued and, in case of non-compliance of the same, non-bailable warrants were also issued against the respondent no.2. After issuance of the aforesaid non-bailable warrant, the respondent no.2 appeared before the trial court on 7th of January 2020 and applied for bail. On such application for bail of the accused/respondent, the trial court released the respondent no.2 on bail.

11. The respondent no.2 submitted evidence by way of invoking the provision of Section 254 of the Cr.P.C. on 14th of October 2020 and, thereafter, the case was fixed on 18.11.2020 for his cross-examination. The evidence was taken on affidavit by the trial court under the provision of Section 145 of the N.I. Act.

12. Learned counsel for the appellant further submits that after release on bail, the respondent no.2 again remained absent adopting dilly dallying tactics and he did not appear on several dates, which were fixed for cross-examination. On 23rd of February 2021, non-bailable warrant was again issued and personal bond was forfeited. Later on, furnishing the personal bond on 16th of September 2021, non-bailable warrant was cancelled and the case was fixed for 28th of October 2021 wherein the respondent no.2 had again moved an application for exemption of his personal appearance.

13. He submits that it is evident from the order sheet that on 28th of October 2021, the case was directed to be listed on 16th of September 2021 which prima facie is impossible. On 16th of September 2021, there is an order that the personal appearance of the respondent no.2 is exempted and the appellant has been shown as absent on that date, and the case was posted for 23rd of September 2021 on which date the respondent no.2 and the appellant both have been shown absent though the presence of the respondent no.2 was exempted through his advocate. He added that the order sheet reveals that the appellant remained present on each and every date when the case was fixed by the trial court but, at the same time, it is also evident that the respondent no.2 remained absent on many of the dates and he could appear only when the non-bailable warrant was issued and then again he absented himself.

14. He argued that in fact it seems that something has been played by the Reader of the trial court behind the back while fixing the date so as to make an illusion to the appellant. He submits that the case was fixed for cross-examination of the appellant on 28th of October 2021 on which date the appellant could not appear as wrong date was told by the Reader of the trial court, who did not show his paper book. The next date was fixed for 9th of December 2021 and the appellant could not appear on 9th of December 2021 as the same was not informed and on 9th of December 2021, date was fixed for 23rd of December 2021 when the complaint filed by the appellant was dismissed.

15. He further submits that the matter pertains to N.I. Act and in Section 143 of the N.I. Act, it has been provided that notwithstanding anything contained in the Code of Criminal Procedure, 1973, all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of Sections 262 to 265 of the said Code shall, as far as may be, apply to such trials. He submits that in such view of the matter, the proceeding under the N.I. Act goes as per the procedure provided for summary trial. He further added that there is specific mention in the provision that if Magistrate has to alter the trial from summary trial to summon trial, he has to provide opportunity to the parties and has to record reasons. As instant case has not been converted from summary trial to summon trial, therefore, the provisions of Section 256 of the Cr.P.C. shall not attract in the instant matter. As such, the trial court has invoked the provision of the summon trial and has gone against the mandatory provision of the Act. He also added that the Section 256 of the Code provides the procedure with regard to the trial of summon cases and this could not have been invoked in case of a summary trial. He submits that since the Additional Court, Faizabad has passed the order against the procedure prescribed under the law and, as such, the same assails illegality and infirmity. In support of his submissions, learned counsel for the appellant has placed reliance on the Judgment of Apex Court in Suo Motu Writ Petition (Crl.) No. 2 of 2020 decided on April 16, 2021; Judgment dated 4.1.2019 passed by the High Court of Himachal Pradesh, Shimla in Criminal Appeal No. 469 of 2018, Pooja Sharma Vs. Suresh Kumar; and Judgment of Kerala High Court in C.K. Sivaraman Achari Vs. D.K. Agarwall and others, 1978 CriLJ 1376.

16. On the other hand, learned counsel for the State has very vehemently opposed the contention aforesaid and submits that the order passed by the Additional Court does not assail any illegality or infirmity. He submits that it seems that the appellant did not appear on several dates like 28th of October 2021, 9th of December 2021 and 13th of December 2021 and, as such, the trial court has rejected the complaint of the appellant. Learned counsel for the State has also added that in fact the Additional Court has rightly invoked the provisions of Section 256 of the Cr.P.C. as the same envisages the provision with regard to the non-appearance or death of the complainant. Section 256 of the Cr.P.C. are quoted hereunder:-

"256. Non-appearance or death of complainant.-(1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:

Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death."

17. Referring the aforesaid provisions, he submits that in case of non-appearance of the complainant, if the Magistrate thinks it fit, he may acquit the accused and reject the complaint. He further submits that it is wisdom of the trial court concerned to proceed in the matter as summon trial. He submits that admittedly, there is a provision in case of complaint submitted under Section 138 of the N.I. Act that the proceeding shall be carried out as per the provisions of summary trial envisaged under Section 262 to 265 of the Criminal Procedure Code but here, the trial court has passed the order dated 23rd of December 2021 invoking the provision of Section 256 of Cr.P.C. as the Section 143 of the N.I. Act itself speaks like that. He submitted that there is a proviso clause of Section 143 (1) of the N.I. Act which says that provided that when at the commencement of, or in the course of, a summary trial in this section, it appears to the Magistrate that the nature of the case is such that sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall proceed in a manner provided in this Code. Referring the aforesaid, he submits that in fact in case of non-appearance of the appellant, the trial court has come to the conclusion to invoke jurisdiction under Section 256 of the Cr.P.C. and, as such, he has rightly proceeded to pass the impugned order dated 23rd of December 2021.

18. Having heard learned counsel for the parties and after perusal of the record, I find that there is a procedure prescribed under Section 143 of the N.I. Act for proceeding in the matter as a summary trial. Further the argument, which has been raised by the learned counsel for the State that the Magistrate has invoked his jurisdiction under Section 256 of the Cr.P.C., is unsustainable as from proviso of sub Clause 1 of Section 143 of the N.I. Act, it is itself evident that the same can be invoked. The trial court shall, after hearing the parties, record an order to that effect and, in such view, the Magistrate can proceed under Section 256 of the Cr.P.C. from summary trial to summon trial.

169 It is evident from the order dated 23.12.2021 that neither the parties were heard nor any reason was recorded by the Magistrate while dismissing the complaint filed by the appellant. Further there seems to be no any provision which enables the trial court to proceed in the matter under Section 256 of the Cr.P.C. Thus, the Additional Court has travelled beyond its jurisdiction as it has invoked provisions under Section 256 while passing the order dated 23rd of December 2021.

20. This Court has also noticed the conduct of the appellant and the respondent no.2 wherein it is evident that the appellant appeared on almost all the dates fixed by the trial court whereas the respondent no.2 kept on deviating in appearance and on several occasions, when non-bailable warrants were issued against him, he appeared and thereafter again absented. It is also evident from the order dated 23rd of December 2021 that the respondent no.2 was also not present before the trial court on the date fixed.

21. Considering the aforesaid facts and circumstances and the law settled by the Apex Court as well as the provision envisaged under the N.I. Act as well as the Cr.P.C., I am of the view that the learned Additional Court while passing the order dated 23rd of Decmeber 2021 has travelled beyond its jurisdiction.

22. Thus, the appeal is allowed and the Judgment and order dated 23rd of December 2021 is hereby set aside.

23. The learned Trial Court is directed to proceed accordingly.

Order Dtate:30.5.2022

Ram Murti