Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Guj) 673

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
B.N. KARIA, J.
PRAKASH D DOSHI – APPELLANT
Versus
STATE OF GUJARAT & 1 OTHER(S) – RESPONDENT
CRIMINAL MISC.APPLICATION NO. 16414 of 2013
Decided on : 26-08-2021

Advocates Appeared:
For the Appellant : MR RAJESH K KANANI
For the Respondent: MR. H.K. PATEL

Point of law : Though as per section 16-A of the PFA all offence under section 16(1) are to be tried by the Magistrate of First Class so empowered summarily, departure from this procedure can be made only as provided under further proviso where it appears to the Magistrate that sentence exceeding one year may be warranted or for any other reason it is not desirable to try the case summarily, he can after hearing the parties do so by passing an order.

Headnote:
Criminal Procedure Code,1973 – Section 251,256,326 and 465(2) – Negotiable Instrument Act – Section 143 – Dishonour of cheque - Loan – Friendly loan - Applicant is original complainant whereas respondent is the original accused - Complaint filed by applicant being numbered as Criminal Case before Ld. Metropolitan Magistrate Court No.29 (NI Act) against respondent (original accused) alleging that respondent had taken a friendly loan with a condition of repayment on demand - That, applicant had demanded said amount back and therefore respondent no.2 issued two cheques towards part payment of aforesaid legal dues for an amount which were returned dishonored and thereafter statuary demand notice was issued by applicant.
Finding of the court :
Evidence in that case was recorded in full and not in a summary manner and therefore prayer of the accused persons cannot be accepted in present case also when plea was recorded under section 256 of Code of Criminal Procedure - Therefore, prayer of applicant is accepted and order passed by learned Additional City Sessions Judge, Court in Criminal Revision Application stands quashed and set aside and order passed by the learned Metropolitan Magistrate (NI Act) Court in Criminal Case stands restored to its original file - As the matter is pending before the trial court and was fixed at stage of final arguments, learned Metropolitan Magistrate shall proceed with matter and decide same within a period of four months from date of receipt of this order - Petitioner participated in the trial without any objection or murmur. Not only pre-charge evidence was recorded, the witnesses were offered for cross-examination even at the stage. The petitioner participated in the proceedings. The charge was framed. The witnesses were recalled and cross-examined at length by the defence. Only when the case was fixed for oral arguments, an objection to the procedure was taken. In our opinion, such a procedure being at best irregular and the irregularity being curable, it would be wholly unjust to permit the petitioner to take advantage of his own silence and to raise such a contention at the fag end of the trial. Even going by the philosophy of sub-section (2) of section 465 of the Code of Criminal Procedure, the petitioner’s objection cannot be sustained such a procedure being at best irregular and the irregularity being curable, it would be wholly unjust to permit the petitioner to take advantage of his own silence and to raise such a contention at the fag end of the trial. Even going by the philosophy of sub-section (2) of section 465 of the Code of Criminal Procedure, the petitioner’s objection cannot be sustained.

ORDER :

1. By way of present application the applicant has prayed for following reliefs:

“(B) Your Lordships may be pleased to quash and set aside the impugned order dated 25.07.2013 passed in Criminal Revision Application No.05/2013 by Ld. Sessions Judge, Ahmedabad, directing de novo/ fresh trial of a Criminal Case No.610/08, pending in the court of Ld. Metropolitan Magistrate Court No. 29 (NI Special Court), Ahmedabad.

(C) Your Lordship may be pleased to expedite the trial of a Criminal Case No. 610/08, pending in the court of Ld. Metropolitan Magistrate Court No.29 (NI Special Court), Ahmedabad.”

2. Heard Learned Advocate for the applicant as well as Learned APP for the Respondent -State.

3. However, notice was served to the Respondent No.2, none was present to contest this petition for an on behalf of the respondent No.2.

4. Brief facts of the present case are as under:

That, the applicant is the original complainant where as respondent No.2 is the original accused. The complaint filed by the applicant on 28.07.2008 being numbered as Criminal Case No.610/08, before the Ld. Metropolitan Magistrate Court No.29 (NI Act) at Ahmedabad against the respondent no.2 namely Ajay Narendrabhai Patel (original accused) alleging that the respondent no.2 had taken a friendly loan of Rs.3,50,000/- with a condition of repayment on demand. That, the applicant had demanded the said amount back and therefore respondent no.2 issued two cheques towards the part payment of aforesaid legal dues for an amount of Rs.2,00,000/- which were returned dishonored and thereafter statuary demand notice was issued by the applicant. In spite of that, the respondent no.2 didn’t make the payment of the aforesaid legal dues, and therefore, the applicant had filed complaint under section 138 of Negotiable Instruments Act, 1881. That after filing of the said complaint and verification of the complainant, summons was issued and respondent no.2 was appeared before the trial court and after completing legal formalities, engaging advocate etc his plea was recorded under section 251 of Cr.P.C. on 28.06.2010. That as the respondent no.2 pleaded not guilty, the applicant had proceeded to file the evidence in form of an affidavit on 19.07.2010. That the advocate of the respondent no.2 did not cross-examine the present applicant though given sufficient time and as directed by the Honourable court and therefore his right to cross-examine was closed. Thereafter, further statement of respondent no.2 was recorded on 01.02.2011 and trial was at the fag end and almost near completion on merits. That the respondent no.2 (original accused) filed an application Exh.38 for de novo trial before the trial court on 20.11.2012 and the learned Magistrate rejected the said application vide order dated 29.12.2012.

5. Being aggrieved by the said order, respondent no.2 has filed Criminal Revision Application No.05/2013 wherein, the Additional City Sessions Judge, Court No.18, Ahmedabad was pleased to allow the said revision application vide order dated 25.07.2013 directing de novo trial and commencement of proceedings of afresh hence, present petition.

6. Learned Advocate appearing for the applicant submits in his arguments that, the impugned complaint lodged by the complainant under section 138 of the Negotiable Instruments Act for dishonor of the cheques an amount of Rs.2,00,000/- which was issued with the signature of the respondent no.2 for the account maintained by him for the payment of legal dues. The complainant had issued statutory notice and after non compliance of the same, he had filed the complaint within the time limit prescribed by law.

7. It is further argued by learned advocate appearing for the applicant that after completing legal formalities, his plea was recorded under section 251 of the Code of Criminal Procedure on 28.06.2010. That affidavit in form of chief examination was filed by the petitioner. That advocate of the respondent no.2 before the trial court did not cross-ex

Click Here to Read the rest of this document

2021 Supreme(Guj) 673

IN THE HIGH COURT OF GUJARAT AT AHMEDABADB.N. KARIA, J.PRAKASH D DOSHI – APPELLANTVersusSTATE OF GUJARAT & 1 OTHER(S) – RESPONDENT CRIMINAL MISC.APPLICATION NO. 16414 of 2013Decided on : 26-08-2021

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
B.N. KARIA, J.
PRAKASH D DOSHI – APPELLANT
Versus
STATE OF GUJARAT & 1 OTHER(S) – RESPONDENT
CRIMINAL MISC.APPLICATION NO. 16414 of 2013
Decided on : 26-08-2021