Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2019 Supreme(SC) 370

SUPREME COURT OF INDIA
Abhay Manohar Sapre, Dinesh Maheshwari, JJ.
Susanta Dey – Appellant(s)
Versus
Babli Majumdar And Another – Respondent(s)
Criminal Appeal No. 2103 of 2008
Decided on : 28-03-2019

Advocates Appeared:
For the Appellant :Mr. Vijay Kumar, Advocate, Mr. R. C. Sharma, Advocate, Mr. Abdul Gaffar, Advocate and Ms. Aparna Jha, Advocate
for the Respondent:(Susanta), Mr. Pijush K. Roy, Advocate, Mr. Kakali Roy, Advocate, Mr. Sunil Kumar Verma, Advocate, Mr. Avishkar Singhvi, Advocate, Mr. Suhaan Mukerji, Advocate, Ms. Astha Sharma, Advocate for M/S. PLR Chambers and Co., Advocate

IMPORTANT POINTS
(1) Unnecessary remand of matter should be avoided.
(2) High Court can direct Magistrate to decide complaint in terms of directions given by Appellate Court.

Headnote:Negotiable Instrument Act, 1881 – Section 138 – Dishonour of cheque – High Court in revision, awarded simple imprisonment for two months to appellant and also directed him to pay Rs. 3 Lakhs by way of compensation to respondent No.1 – If High Court had examined issue of remand and held the same to be legal, it could have directed Magistrate to decide complaint in terms of directions given by Appellate Court – However, if remand had been held illegal, High Court was under legal obligation to remand the case to Appellate Court to decide appeal afresh on merits with a view to decide as to whether Magistrate was justified in allowing complaint and awarding sentence – High Court committed jurisdictional error in allowing revision filed by respondent No.1 – Impugned order deserves to be set aside – There was enough material before Appellate Court on the basis of which appeal on merits could have been decided one way or other instead of remanding case to Magistrate for deciding it afresh – Impugned order set aside – Appellate Court directed to decide appeal afresh on merits in accordance with law on the basis of material already on record. (Paras 10,11, 12, 13, 14, 17, 18 and 19)
       Facts of Case:
       Dishonour of cheque. Question before High Court was whether remand order of Appellate Court was legal or not. By impugned order, High Court allowed revision and while setting aside order of Appellate Court, awarded simple imprisonment for 2 months to appellant and also directed him to pay Rs. 3 Lakhs by way of compensation to respondent No.1. It is against this order, appellant (accused) has felt aggrieved and filed this appeal by way of special leave in this Court.
       Findings of Court:
       There was neither any need and nor any occasion to remand case to Magistrate. There was enough material before Appellate Court on the basis of which appeal on merits could have been decided one way or other instead of remanding the case to Magistrate for deciding it afresh.
       Result : Appeal allowed.

JUDGMENT

Abhay Manohar Sapre, J.

This appeal is directed against the final judgment and order dated 11.04.2008 passed by the High Court of Calcutta in Criminal Revision No. 3048 of 2005 whereby the High Court allowed the criminal revision filed by respondent No. 1 herein and while setting aside the order of the Appellate Court, awarded simple imprisonment for two months to the appellant herein and directed him to pay a sum of Rs. 3 lakhs by way of compensation to respondent No. 1.

2. The appeal involves a short point as would be clear from the facts mentioned hereinbelow.

3. Respondent No. 1 (complainant) filed a complaint (CR No. 298 of 1995) under Section 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as "the Act") against the appellant herein in the Court of Judicial Magistrate, 1st Court, Jalpaiguri, West Bengal.

4. By order dated 29.06.2004, the Judicial Magistrate allowed the complaint and held the appellant guilty for commission of an offence punishable under Section 138 of the Act and sentenced him to undergo simple imprisonment for two months along with a fine of Rs. 5000/- and in default of payment of fine, to further undergo simple imprisonment for one month and also awarded a compensation of Rs. 3 Lakhs payable to respondent No. 1 (complainant) by the appellant (accused).

5. The appellant felt aggrieved and filed Criminal Appeal No. 7/2005) in the Court of Sessions/Magistrate. By order dated 12.07.2005, the Appellate Court allowed the appeal and while setting aside the order dated 29.06.2004 of the Judicial Magistrate remanded the case to the Judicial Magistrate for giving an opportunity to both the parties to adduce fresh evidence and then decide the complaint.

6. Respondent No.1 (complainant) felt aggrieved and filed revision in the High Court at Calcutta. By impugned order, the High Court allowed the revision and while setting aside the order of the Appellate Court, awarded simple imprisonment for 2 months to the appellant herein and also directed him to pay Rs. 3 Lakhs by way of compensation to respondent No. 1.

7. It is against this order, the appellant (accused) has felt aggrieved and filed this appeal by way of special leave in this Court.

8. Heard Mr. Vijay Kumar, learned counsel for the appellant, Mr. Pijush K. Roy, learned counsel for respondent No.1 and Mr. Avishkar Singhvi, learned counsel for respondent No. 2.

9. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside the impugned order remand the case to the Appellate Court for deciding the appeal afresh on merits in accordance with law.

10. In our opinion, the High Court was not justified in allowing the revision filed by respondent No. 1 and awarding sentence to the appellant herein and compensation to respondent No. 1. The reasons are not far to seek as mentioned hereinbelow.

11. First, the only question before the High Court in the revision filed by respondent No. 1 (complainant) was as to whether the Appellate Court was justified in remanding the case to the Judicial Magistrate for giving them an opportunity to adduce evidence. In other words, the question before the High Court was whether the remand order of the Appellate Court was legal or not.

12. Second, instead of deciding the aforementioned question, the High Court proceeded to decide the complaint itself on its merits and while allowing the complaint, sentenced the appellant (accused) with simple imprisonment for 2 months along with a direction to pay compensation of Rs. 3 Lakhs to respondent No. 1 (complainant). It was, in our view, not legally permissible.

13. Third, if the High Court had examined the issue of remand and held the same to be legal, it could have directed the Magistrate to decide the complaint in terms of the directions given by the Appellate Court. However, if the remand had been held illegal, the High Court was under a legal obligation to remand the case to the Appellate

Click Here to Read the rest of this document

Judicial Analysis

SupremeToday

2019 Supreme(SC) 370

SUPREME COURT OF INDIAAbhay Manohar Sapre, Dinesh Maheshwari, JJ.Susanta Dey – Appellant(s)VersusBabli Majumdar And Another – Respondent(s)Criminal Appeal No. 2103 of 2008Decided on : 28-03-2019

IMPORTANT POINTS(1) Unnecessary remand of matter should be avoided.(2) High Court can direct Magistrate to decide complaint in terms of directions given by Appellate Court.

Judicial Analysis

SUPREME COURT OF INDIA
Abhay Manohar Sapre, Dinesh Maheshwari, JJ.
Susanta Dey – Appellant(s)
Versus
Babli Majumdar And Another – Respondent(s)
Criminal Appeal No. 2103 of 2008
Decided on : 28-03-2019

IMPORTANT POINTS
(1) Unnecessary remand of matter should be avoided.
(2) High Court can direct Magistrate to decide complaint in terms of directions given by Appellate Court.