The nature of the trial, whether summary or summons, should be determined based on the substance of the evidence and the conduct of the trial, and a de novo trial should be a last resort to prevent a failure of justice.

1. Rule. Rule returnable forthwith. Heard finally by consent of the parties.

2. By the present petition, the petitioner has put to challenge the revisional order dated 13.02.2014 passed by Sessions Judge, Amravati by which he confirmed the order dated 20.12.2011 passed by Judicial Magistrate First Class, Court No.1, Amravati ordering de novo trial for an offence punishable under Section 138 of the Negotiable Instruments Act. In support of the petition, learned counsel for the petitioner invited my attention to the evidence, that was recorded before the trial Judge so also the judgment that, in fact, the trial that was held was a summons trial and not a summary trial. He submitted that complaint under Section 138 of the Negotiable Instruments Act was filed in the Court on 24.06.2009. Thereafter, the evidence commenced in July 2010 and the cross-examination was conducted by counsel for the respondent on 13.08.2010 and 15.10.2010. Another witness was examined as CW2 Satyanarayan Mohanlal Chhangani on 29.11.2010, who was cross-examined and on the same day, the complainant closed his case. Thereafter, statement of accused was recorded and the case was posted further. Learned counsel submitted that the trial as well as the appellate court committed error in not finding distinguishing features in the case at hand while considering the judgment in Nitinbhai Shah vs. Manubhai Manjibhai Panchal (2011) 9 SCC 638 and invited my attention to another judgment of the Supreme Court in the case of J. V. Baharuni and another ..vs.. State of Gujarat and another; (2014) 10 SCC 494. He then submitted that the detailed cross-examination was made and the evidence was adduced like summons case and not as a summary trial. The courts below erred in ordering de novo trial by applying judgment in the case of Nitinbhai (supra).

3. Per contra, Mr. Shukla, learned counsel for respondent no.1, submitted that the case of Nitinbhai is squarely applicable in the instant case at hand since the Magistrate has used summary form for explaining the particulars and evidence was recorded only in English and not in Marathi, which shows that it was summary trial and not summons trial. He, therefore, prayed for dismissal of the writ petition.

4. I have heard learned counsel for the rival parties. Perused the judgment in the case of Nitinbhai (supra) as well as J.V.Baharuni (supra). Here, it is necessary to consider the observations of the apex Court in J. V. Baharuni (supra) wherein judgment in the case of Nitinbhai (supra) has also been considered. The relevant observations are as under:

“30. In Nitinbhai we find that the entire case was tried 'summarily' and the Magistrate who issued process, was transferred after recording the evidence. The succeeding Magistrate delivered the judgment basing upon the memo filed by the parties declaring that they had no objection to proceed with the matter on the basis of evidence recorded by his predecessor. Ultimately, this Court remanded the matter to the Trial Court for de novo trial opining that no amount of consent by the parties can confer jurisdiction on a Court of law, where there exists none, nor can they divest a Court of jurisdiction which it possesses under the law.

31. Coming to the facts of the present cases, on scrutiny of record available in SLP (Crl) No. 5623 of 2012, we found that there has been in total 82 hearings spread over five years. Out of 82 hearings, 67 hearings were done by Jt. C.J.(J.D.) and J.M.F.C., Veraval. The Magistrate was transferred on 24.02.2005 and was replaced by J.M.F.C., Veraval who heard the case for 14 more times and delivered judgment on 15th hearing i.e. on 12.09.2005. Thus by any stretch of imagination, the trial which extended over five years and was decided in over 82 hearings with elaborate cross examination, deposition and all trappings of regular trial cannot simply be termed as "summary trial".

32. On perusal of record of other two cases (SLP (Crl.) Nos. 3332 of 2012 and 734 of