IMPORTANT POINT
A de novo trial is not warranted when evidence is recorded in a summons case format, as per the provisions of the Negotiable Instruments Act.

JUDGMENT :

1. Heard learned Advocates appearing for the respective parties.

2. By way of this application, the applicant – the original complainant has challenged the legality and validity of the order dated 15.06.2023 below Exhibit 11 passed by the learned Sessions Judge, Sabarkantha at Himmatnagar in Criminal Revision Application No.6 of 2023 allowing the Revision Application and setting aside the order dated 13.01.2023 passed by learned 2nd Judicial Magistrate First Class, Himmatnagar below Exhibit 51 in Criminal Case No.5067 of 2018, whereby the application of the applicant for a de novo trial was allowed.

3. The criminal complaint against the present respondents No.2 and 3 was under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to in short as ‘the N.I. Act’). It is the case of the applicant that he and the respondent No.2 had started a Partnership Firm in the name and style of “Design Community” on 20.11.2012 by executing a notarized Partnership Deed. The business got permanently closed on 12.06.2015, thereafter the accounts were settled and the formal deed for dissolution of the firm was executed on 13.06.2017.

Thereafter, the applicant joined service as a Project Manager in the firm Keyur Shahh and Associates, owned by respondent No.2. The salary of the applicant was decided as Rs.50,000/- per month plus T.A. and D.A.. According to the applicant, the respondent No.2 had not paid aggregate salary to the tune of Rs.12,00,000/- for 2 years for the services rendered and he had asked for the due of the outstanding salary. The respondent No.2 had accepted the liability and had given a cheque bearing No.000084 of Bank of Baroda for Rs.4,00,000/- dated 02.11.2018.

4. Before the learned 2nd Additional Judicial Magistrate First Class, Himmatnagar in Criminal Case No.5067 of 2018 by filing Exhibit 51 a prayer for de novo trial was made relying upon the decision of this High Court in the case of Ramjibhai Haribhai Chaudhary v. State of Gujarat. Against that, the decision in the case of J.V. Bahurani v. State of Gujarat was produced where the learned Magistrate after observing the judgment has noted that the matter came be to remanded placing reliance on the decision of the Hon’ble Apex Court in the case of Nitin Sevantilal Shah v. Manu M. Panchal reported in (2011) 9 SCC 638. The learned Magistrate had ordered for a de novo trial relying upon the case of Nitin Sevantilal Shah (supra).

5. Aggrieved by the said order, the challenge was made by the accused before the learned Sessions Court, Sabarkantha at Himmatnagar, the Criminal Revision Application came to be allowed and the order of de novo trial was set aside. The learned Sessions Judge observed that a complaint has been filed against the accused under Section 138 of the N.I. Act, and it was observed that the matter was at the start of cross examination of the original complainant before the learned trial Court. The cross examination was not concluded. The learned Sessions Judge noted that under Section 148 of the N.I. Act, the matter has to be proceeded as summary trial for the case filed under Section 138 of the N.I. Act and order could be passed after hearing the parties. It has been observed that the predecessor learned Trial Court Judge has not passed any such order that the matter was to be tried as summary trial, the learned trial Court further observed that the complaint had not produced the original documents Affidavit or evidence before the learned trial Court, whereas on service of summons, the original accused appeared before the learned trial Court, the original complainant gave his chief-examination by way of Affidavit and the original accused had taken the cross examination. It was further noted that as merely the evidence was recorded before the predecessor of the learned trial Judge, the learned Court expressed its inability, to proceed further and decide the matter, which cannot be ground to proceed the trial de novo.

6. The learned Sessions