Ni act
rajan chopra
(Querist) 07 May 2013
This query is : Resolved
An accused after being convicted in a cheque bounce case appealed in session court arguing that case must be retrialed as the evidance was recorded by one judge and decided by another.Now what is right thing should be as per law?
ajay sethi
(Expert) 07 May 2013
no retrial .order would be passed by magistrate after considering evidence on record. if you find infirmity in order assail it on merits
R.K Nanda 
(Expert) 07 May 2013
contest appeal strongly.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 07 May 2013
There are two types of evidence in cheque cases first is evidence by affidavit and another is oral evidence.
If oral evidence is recorded by one JUDGE and judgement given by another Judge than and than only you have a right of DE NOVO trial., SINCE IT IS PROVIDED IN the LAW and affirmed by SUPREME COURT very recently.
If it is so the conviction order will be set aside and fresh DE NOVO trial will be ordered.
However take assistance of proper legal expert in presenting the case in revision.
Nadeem Qureshi
(Expert) 08 May 2013
Dear Querist
There is two procedure summon case and summery trial, if your case was tried as summery trial then the evidence was recorded by one judge and decided by another is wrong only one judge have power to do that otherwise second judge should start the procedure from evidence but if this was a summon case then both the judges have power to tried and decided the case.
(Gujarat High Court Judgement)
Feel Free to Call
DEFENSE ADVOCATE.-firmaction@g
(Expert) 08 May 2013
There is no choice for the court to try the cheque case other than summons case.
The Gujrat HC Judgement has been over ruled by SC.
THE SUPREME COURT HAS SAID THAT-
when a trial is conducted in a manner
different from that prescribed by the Code, the trial is bad, and
no question of curing an irregularity arises; but if the trial is
conducted substantially in the manner prescribed, but some
irregularity occurs in the course of such conduct, the
irregularity can be cured under Section 537ā€¯.
This is not a case of irregularity but want of competency. , the Code does not conceive of such a trial.
Therefore, Section 465 of the Code has no application. It cannot be called in aid to make what was incompetent, competent. There has been no proper trial of the case and there should be one.
Single Judge of the High Court of Gujarat at Ahmedabad in Criminal Revision Application upholding
conviction of the appellants for the offence under Section 138 of the Act is hereby set aside.
R Trivedi
(Expert) 08 May 2013
Although Gujrat High Court, Delhi High Courts have ruled specifically that NI trials must be summary trial as per s.143, still many trial courts try this as summon trial... Your question is good and try based on following;
1. In Summary case the same judge irrespective any other thing must decide.
2. Was your trial specifically ordered as summon trial by magistrate under S.143 ?
3. In the court, all the trials are happening as summary or summon ?
The point is if the court is making a wholesale irregularity against S.143 then S.465 of CrPc cannot help.
4. Did you cross examine all the witness of prosecution ? Did all the witness gave specific examination chief.
why I am asking this is that in cases under s.138 if tried as per law,then no examination in chief is required, and all the witness must be called for cross on application. So just see if the court has made a mess of it by partly following both the procedure.
You can certainly raise this issue with higher court and you must succeed to the extent of getting trial again.
R Trivedi
(Expert) 08 May 2013
Please note that as per S.143 of NI Act, a magistrate can only convert the trial to summon trial only if he feels (with reasoned order) that there is a possibility of more than one year imprisonment, not otherwise.
I have been expressing this in this forum that this is substantial irregularity trial courts are following and it must be objected to. Courts cannot take refuge in S.465 of CrPC because it is against the statue to carry out normal summon trial from day one without a written order.
No party can be prejudiced or put to harassment due to ignorance of the court. Please refer to Rajesh Agarwal order of Delhi High Court, also there are many orders by SC especially Mandvi Coop Bank case, which bounds the trial court to follow the procedure as laid out in act. Once there is an order by the Apex court and by few HCs then trial court cannot decide the course on its own.
