Back
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
REVATI MOHITEDERE, J.
Sou. Kanta W/o. Harish Khandelwal - Petitioner
Versus
Mudatsar Ali Mujjafar Ali - Respondent
Criminal Writ Petition No. 630 of 2012
Decided On : 07-11-2017
De Novo Trial - Criminal Appeal - Negotiable Instruments Act - Section 138 - Summary Criminal Case No.1412 of 2007 - The court discussed the provisions of the Negotiable Instruments Act, particularly section 138, and the distinction between summary trial and summons trial. The court emphasized the importance of recording the statement of the accused under section 313 of the Criminal Procedure Code and the circumstances warranting a de novo trial.
Fact of the Case:
The petitioner challenged the judgment and order of conviction and sentence passed by the trial Court, which was quashed and remanded for a de novo trial by the Appellate Court. The trial had all the trappings of a regular case, and the failure to record the statement of the accused under section 313 of the Code was noted.
Finding of the Court:
The Appellate Court's direction for de novo trial was unjustified, but the failure to record the accused's statement under section 313 of the Code warranted setting aside the judgment and order of conviction and sentence.
Issues: The main issues were the justification for a de novo trial and the failure to record the accused's statement under section 313 of the Code.
Ratio Decidendi: The court emphasized that a de novo trial should be a last resort and should only be ordered when the appellate Court is satisfied, after thorough scrutiny of records, that the trial was not a summons trial but a summary trial. The failure to record the accused's statement under section 313 of the Code was considered a defect warranting setting aside the judgment and order of conviction and sentence.
Final Decision: The direction for de novo trial was quashed and set aside, but the judgment and order of conviction and sentence were also set aside. The trial Court was directed to record the accused's statement under section 313 of the Code and rehear the parties.
Heard learned counsel for the petitioner. None appeared for the respondent on 06/10/2017 as well as on 30/10/2017. Even today none appears for the respondent.
2. By this petition, the petitioner has impugned the judgment and order dated 05/11/2012 passed in Criminal Appeal No. 123 of 2008 by the learned Sessions Judge, Amravati, by which the judgment and order of conviction and sentence passed by the learned Judicial Magistrate First Class, Court No.6, Amravati in Summary Criminal Case No.1412 of 2007, dated 04/09/2008 was quashed and set aside and the matter was remanded back to the trial Court, for fresh trial.
3. Learned counsel for the petitioner submits that there was no justification for the Appellate Court to remit the matter back to the trial Court, for a de novo trial. He submits that the 138 case in substance was tried as a summons case and not as a summary case, and hence the question of a de novo trial did not arise. Learned counsel relied on the following judgments: J.V. Baharuni and another v. State of Gujarat and another reported in 2014(4) Mh.L.J. 192; Sukhdeo Ganeshram Tardeja v. Rajesh Dayaram Sadhwani and another reported in 2016(2) Mh.L.J. 113; Shivaji Sampat Jagtap v. Rajan Hiralal Arora and anr. reported in 2006 AllMR(Cri) 2612; and unreported judgments i.e. M/s. Indo Rama Synthetics (I) Ltd. v. M/s. HRK Infra & Oils and others) passed in Criminal Application (APL) No.671 of 2011 and (Dinesh Thacker v. State of Maharashtra and another) passed in Writ Petition No.3745 of 2011, to substantiate his submissions.
4. Perused the papers and the impugned judgment and order dated 05/11/2012 with the assistance of the learned counsel for the petitioner. On 28/03/2007, the petitioner (original complainant) filed a complaint in the Court of the learned Judicial Magistrate First Class, Court No.6, Amravati, which was numbered as Summary Criminal case No.1412 of 2007. The learned Magistrate was pleased to issue process against the respondent, pursuant to which, the respondent appeared before the trial Court. The petitioner led the evidence of two witnesses and closed his evidence. Thereafter, the statement of the respondent-accused under section 313 of Criminal Procedure Code was recorded. The respondent-accused in his defence examined three witnesses, who were also cross-examined by the counsel for the petitioner. Thereafter, the petitioner (original complainant) examined another witness i.e. his third witness namely, Shri Harish Shankarlal Khandelwal. The said witness was also cross-examined by the counsel for the respondent-accused. It however appears, that no questions were put to the respondent-accused under section 313 of Criminal Procedure Code, after the said witness, Harish Khandelwal was examined by the petitioner-complainant. The said fact is also not disputed by the learned counsel for the petitioner.
5. The submission advanced by the learned counsel for the petitioner that the Appellate Court had erred in remanding the matter back to the trial Court for a fresh trial/de novo trial will have to be accepted, in view of the settled position of law. A perusal of the impugned judgment and order dated 05/11/2012 passed by the learned Sessions Judge, Amravati, shows that reliance placed by the said Court on the judgment in the case of Nitinbhai Saevatilal Shah and another v. Manubhai Manjibhai Panchal and another, reported in (2011) 3 SCC (Cri) 788 was clearly misconceived in the facts. In the case of Nitinbhai Saevatilal Shah (supra), the Apex Court was dealing with a case, which was tried 'summarily'.
6. It is pertinent to note, that the Apex Court subsequently in the case of J.V. Baharuni (supra) has observed 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 procee
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
