M/s. Mahathru Technologies vs M/s Creative Infotech. Criminal Petition 1329/2020 decided on 19 November 2020.
Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348866/1/CRLP1329-20-19-11-2020.pdf
Relevant paragraphs: Question referred by the Hon’ble single judge to larger bench. “Whether in a case for offence punishable under Section 138 of the Negotiable Instruments Act, 1881, the Court of Magistrate exercising its power under the second proviso to Section 143 of the Negotiable Instruments Act, if it appears to the said Court that it is undesirable to try the case summarily, after recording reasons, can proceed to try/hear the said case as a warrant case?”. The reference was made in view of the conflicting views expressed by the coordinate Benches on the above issue in M/S. Mesh Trans Gears Private Limited, Bangalore –vs- Dr. R. Parvathareddy – ILR 2014 KAR 5237 and Mahendra Kumar –vs- Gangamma.B – ILR 2018 KAR 4761, by relying upon a decision of another learned Single Judge in M/S. Leo Granex –vs- M/S. Pavillion Granites & others – ILR 2009 KAR 4062.
16. There is a substantial difference between the procedure prescribed by the provisions of Cr.P.C for trial of a ‘warrant case’ and trial of a ‘summons case’. In case of trial of a warrant case, under the provisions of Section 245 of Cr.P.C, the learned Magistrate is bound to consider the plea of discharge for the offence alleged against the accused. Section 246 of Cr.P.C, provides for framing of charge. Section 244 contemplates recording of evidence before charge. However, under the procedure prescribed for trial of a summons case, there is no requirement of framing of charge. Thus, between the two, the procedure applicable to a summons case is less cumbersome and expeditious, as compared to the procedure applicable to a warrant case. A trial in a summons case can be concluded more expeditiously than a trial of warrant case, as in the case of trial of a warrant case, a charge is required to be framed which is not at all the requirement in case of a summons case.
21. If the learned Magistrates are allowed to convert the complaints filed alleging an offence punishable under Section 138 of the said Act of 1881 into a warrant triable case, the consequence will be disastrous as the trial will be prolonged. Lot of time will have to be devoted for hearing of discharge application and for framing of charge. It will amount to defeating the very object of introducing Chapter XVII containing Sections 138 to 142 in the said Act of 1881 with effect from 1st April 1989.
22. Therefore, for the foregoing reasons, we answer the question formulated by the learned Single Judge in the order dated 29th June 2020 in the negative. It is held that the power of the learned Magistrate to convert the trial of a complaint under Section 138 of the said Act of 1881 under the second proviso to sub-section (1) of Section 143 is confined only to converting the case into a summons triable case.
Compiled by S. Basavaraj, Advocate, Bangalore
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