Judicial Analysis Court Copy Headnote Facts Arguments Court observation

KARNATAKA HIGH COURT
H.B. Prabhakara Sastry, J.
M/s. Pradhan Mercantile Pvt. Ltd. – Petitioner
versus
M/s. Virgin Apparels – Respondent
Criminal Revision Petition No.773 of 2013
Decided on 5.12.2022

Advocates:
Counsel for the Parties:
For the Petitioner:T.V. Vijay Raghavan, Advocate
For the Respondent:Geetha Menon, Advocate

IMPORTANT POINT
Dishonour of cheque – When evidence of parties, in chief examination, cross-examination and re-examination (if any) were recorded in verbatim and was faithfully placed on record then for merely not recording order observing that matter would be tried as a summons case or as a regular trial would not itself vitiate trial conducted by Magistrate of Trial Court, when it has not resulted in miscarriage of justice.

Headnote:
Negotiable Instruments Act, 1881 – Sections 138 and 143 – Criminal Procedure Code, 1973 – Section 326 – Dishonour of cheque – Summary trial – Accused in Trial Court itself, had taken a contention that a de novo trial is required to be conducted by Magistrate – A memo to that effect was also filed by them – Complainant had filed his detailed objection to the memo – After recording filing of such a memo and objection to memo, Magistrate of Trial Court in her impugned judgment has made a detailed discussion on contention taken up by accused and has made a specific observation that predecessor Magistrate had recorded entire memorandum of evidence of witnesses and not substance of evidence as required under summary trial – When evidence of parties, in chief examination, cross-examination and re-examination (if any) were recorded in verbatim and was faithfully placed on record then for merely not recording order observing that matter would be tried as a summons case or as a regular trial would not itself vitiate trial conducted by Magistrate of Trial Court, when it has not resulted in miscarriage of justice – Judgment passed by Sessions Judge’s Court only on technicalities and setting aside impugned judgment passed by Trial Court and ordering for a de-novo trial would not sustain – Impugned Judgment set aside and matter remanded for fresh disposal of Criminal Appeal. (Paras 16 and 18)
Result: Criminal Revision Petition allowed.

ORDER

The present petitioner, as a complainant had filed a complaint under Section 200 of the code of Criminal Procedure, 1973 (hereinafter for brevity referred to as “the Cr.P.C.”) in C.C.No.25334/2010, against the present respondents, arraigning them as accused No.1 and accused No.2 respectively in the Court of the XIII Additional Chief Metropolitan Magistrate, Bangalore (hereinafter for brevity referred to as “the Trial Court”) for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as “the N.I. Act”).

2. After holding a trial and recording the evidence led by both side, the learned Magistrate of the Trial Court, by her judgment of conviction and order on sentence dated 01-02-2013 convicted the accused No.1 and accused No.2 before her for the offence punishable under Section 138 of the N.I. Act and sentenced the accused No.2 to pay a fine of Rs.66,49,881/- and in default of the payment of the said fine amount, to undergo simple imprisonment for a period of one year.

Aggrieved by the same, the accused No.1 and accused No.2 in the Trial Court preferred Criminal Appeal No.103/2013, in the Court of the LII Additional City Civil and Sessions Judge, Bangalore City (CCH 53) (hereinafter for brevity referred to as “the Sessions Judge’s Court”) which Court, by its judgment dated 02-09-2013, allowed the appeal, setting aside the impugned judgment passed by the Trial Court and remanded the matter to the Trial Court ordering for a de-novo trial.

Aggrieved by the same, the complainant in the Trial Court has preferred this criminal revision petition.

3. The respondents No.1 and 2 herein, who are accused No.1 and accused No.2 in the Trial Court are represented by their learned counsel.

4. The Trial Court and the Sessions Judge’s Court’s records were called for and the same are placed before this Court.

5. Learned counsel for the revision petitioner (complainant) and the learned counsel for the respondents No.1 and 2 (accused Nos.1 and 2) are physically appearing in the Court.

6. Heard the learned counsels from both side. Perused the materials placed before this Court including the memorandum of revision petition, impugned judgments, the Trial Court records and also the Sessions Judge’s Court’s records.

7. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the Trial Court.

8. After hearing the learned counsels for the parties, the only point that arise for my consideration in this revision petition is:—

Whether the impugned judgment passed by the Court of the LII Additional City Civil and Sessions Judge, Bangalore City (CCH-53) dated 02-09-2013 in Criminal Appeal No.103/2013, warrants any interference at the hands of this Court?

9. Learned counsel for the complainant (revision petitioner) in his argument submitted that, though Section 143 of the N.I. Act prescribes the proceedings for the alleged offences to be tried as a summary trial, however, the matter in the Trial Court was tried as a regular trial. For the same, the Magistrate of the Trial Court has also assigned reasons in her impugned judgment. That being the case, the Sessions Judge’s Court was not justified in remanding the matter to the Trial Court ordering for a de-novo trial.

In his support, he relied upon a judgment of the Hon’ble Apex Court in the case of J.V. Baharuni and Anr. Vs. State of Gujarat and Anr. reported in (2014) 10 Supreme Court Cases 494.

With this, the learned counsel submitted that the impugned judgment passed by the Sessions Judge’s Court be set aside and the matter be remanded to the Sessions Judge’s Court for its disposal on the merits of the case.

10. Learned counsel for the accused No.1 and accused No.2 (respondents No.1 and 2 in the Trial Court) also in her brief argument submitted that, since the Sessions Judge’s Court has not decided the matter on its merit, the same deserves to be remanded.

11. As per Section 143 of th