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KERALA HIGH COURT
K. Ramakrishnan, J.
M. Padmanabhan —Appellant
versus
K. Latha Kumari and Anr. —Respondents
Crl.Rev.Pet.No.1572 of 2012
Decided on 26.11.2014
Counsel for the Parties:
For the Appellant:Sri. P. Vijaya Bhanu, Sr. Advocate and Sri. R. Gopan, Advocate
For the Respondent No.1:Sri. Pirappancode V.S. Sudhir, Advocate
For the Respondent No.2: Sri. N. Suresh, Public Prosecutor
IMPORTANT POINT
No substance of evidence is required to be recorded by Presiding Officer if he is following procedure for deciding case as summary trial case.
Headnote:Negotiable Instruments Act, 1881—Sections 138 and 143—Criminal Procedure Code, 1973—Section 326—Dishonour of cheque—Summary trial—Detailed evidence was recorded by examining witnesses and evidence was recorded in verbatim reproduction of evidence—No substance of evidence is required to be recorded by Presiding Officer if he is following procedure for deciding case as summary trial case—If evidence is recorded in detail reproducing evidence given in verbatim reproduction of statement given by witnesses and not recording substance alone, then court can treat the case tried as summons trial case and not decided as summary trial case and appellate court on the basis of evidence proceed and dispose of case in accordance with law—However, merely because parties conceded for remand, court is not expected to remand case on concession made by Counsel for parties—Court will have to consider whether remand is really required for getting ends of justice—Common order passed by court below remanding case set aside and matters are remanded to Additional Sessions Court for fresh disposal in accordance with law. (Paras 8 and 13)
Result: Revision Petitions allowed.
K. Ramakrishnan, J.—The complainants in S.T.Nos.55/2007, 56/2007 and 57/2007 on the file of Judicial First Class Magistrate Court-IV, Neyyattinkara are the revision petitioners herein.
2. The revision petitioners filed separate private complaints under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the Act) against the first respondent in all these cases alleging the offence under Section 138 of the Act. The case was numbered as summary trial case and evidence was taken and after evidence, the trial court found the accused in these cases, who are the first respondent in all these cases, guilty under Section 138 of the Act and convicted them and sentenced them for the said offence. They filed Crl.A.Nos. 108/2011, 109/2011 and 110/2011 respectively against the above said conviction and sentence and after admitting the appeal, it was made over to Second Additional Sessions Court, Thiruvananthapuram for disposal. While the cases were posted for hearing, the revision petitioners filed Crl.M.P.Nos.654/2012, 655/2012 and 656/2012 respectively in each appeal stating that in view of the decision reported in Nitinbhai Saevatilal Shah & another v. Manubhai Manjubhai Panchal (2011 (3) KHC 840), if the court feels that the case has to be remanded, then it may be remanded with direction of time bound disposal by the court below. It was on that basis, the learned Additional Sessions Judge disposed of the criminal appeals and remanded the case for fresh disposal to the court below by the impugned common order. That common order is being challenged by the revision petitioner by filing the above revisions.
3. Heard the counsel appearing for the revision petitioner, learned counsel appearing for the 1st respondent and the learned Public Prosecutor.
4. Since a common question arose for consideration in all these cases, this Court felt that the revisions can be disposed of by a common order.
5. The learned senior counsel Sri.Vijaya Bhanu appearing for the revision petitioner submitted that in the latest decision in Baharuni J.V and Another v. State of Gujarat and Another (2014 (4)KHC 476), the Hon’ble Supreme Court has held that if the appellate court is satisfied that though the case was numbered as summary trial case, if detailed evidence was taken after conducting detailed enquiry, it can be treated that the court has decided the case as summons case though separate order has not been passed converting summary trial case to summons case and if the court is satisfied that summons case procedure has been followed, then it need be remanded in view of the decision reported in Shah’s case (cited supra). Further direction has been given as to the cases will be decided and future guideline has to be given in such circumstances. It cannot be said that the counsel for the revision petitioner had sought for remand voluntarily and what was stated by him in the petition was that he wanted only early disposal, if it is remanded on the basis of the decision. In view of the latest decision of the Hon’ble Supreme Court on this aspect, remand is not required. So the order has to set aside and a direction has to be given to the appellate court to dispose of the case on merit.
6. On the other hand, Sri.Pirappancode V.S.Sudheer, learned counsel for the first respondent submitted that it was not a case of remanding the case, but remand order was sought on the basis of the application filed by the counsel for the revision petitioner in the lower court and in the affidavit filed by him, he later deviated from the same blaming the court for remanding the case and filing revision cannot be entertained and if at all he feels that a mistake has been committed, he will have to move for correcting it before the same court not filing revision. He had relied on the decision reported in State of Maharashtra v. Ramdas Shrinivas Nayak (1982 (2) SCC 463) and D.P. Chadha v. Triyugi Narain Mishra & Others (2001 (2) SCC 221) in support of his case.
