Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(Guj) 721

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
PRANAV TRIVEDI, J.
Rakeshbhai Ambalal Patel - Appellant
Versus
State of Gujarat and Another - Respondents
Criminal Revision Application (Against Order Passed By Subordinate Court) No. 398 of 2013
Decided On : 19-03-2025

Advocates:
Advocate Appeared:
For the Appellants : H.A. Qureshi, R.J. Goswami
For the Respondent: Tirthraj Pandya

The appellate court erred in ordering a de novo trial as the proceedings were not conducted as a summary trial, violating the provisions of the Code.

Headnote:
(A) Code of Criminal Procedure, 1973 - Sections 397 and 401 - Negotiable Instruments Act, 1881 - Section 138 - Revision application challenging appellate court's order rejecting de novo trial application - The trial was not conducted as a summary trial, and the appellate court erred in ordering de novo trial without proper grounds. (Paras 1, 2, 5, 6, 11, 12)

(B) De Novo Trial - The requirement for a de novo trial arises only when a summary trial is improperly conducted; in this case, the trial was not summary, thus the appellate court's order was erroneous. (Paras 6, 11, 12)

Facts of the case:
The applicant issued a cheque for Rs.1,65,000/- which was dishonored, leading to a complaint under Section 138 of the Act. The trial court convicted the applicant, and the appellate court rejected the application for a de novo trial.

Findings of Court:
The appellate court's order was quashed, and the trial was to proceed from the stage of the application for de novo trial.

Issues: Whether the trial was conducted as a summary trial and the appropriateness of the appellate court's order for a de novo trial.

Ratio Decidendi: The court held that the trial was not summary, and the appellate court's reliance on the requirement for a de novo trial was misplaced.

Result: Revision application dismissed.

JUDGMENT :

(PRANAV TRIVEDI, J.)

[1] The present revision application is filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") challenging the judgment and order dated 21.06.2013 passed in Criminal Appeal No.25 of 2013 below Exhibit '7' by the 5^th Additional Sessions Judge, Nadiad, District - Kheda (hereinafter referred to as "the appellate court").

[2] The brief facts resulting into filing of the present revision application are that it was the case of the revisionist - applicant that he has issued a cheque worth Rs.1,65,000/- to the complainant, i.e., respondent No.2 (hereinafter referred to as "the respondent"), which was dishonored. This has led to filing of a complaint under the provisions of Section 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as "the Act"). The complaint came to be filed before the Judicial Magistrate First Class, Kapadvanj (hereinafter referred to as "the trial court"). The case came to be registered as Criminal Case No.2092 of 2007 and the process came to be issued. Pursuant to the issuance of the process, the plea of applicant was recorded below Exhibit '7' and the documentary evidence was produced by the applicant along with the testimony of oral witnesses. The learned trial court, after hearing both the parties and perusing the material on record, convicted the present revisionist - applicant under Section 138 of the Act, sentencing him to 6 months of simple imprisonment along with a fine of Rs.5,000/-. This order, dated 31.01.2013, was challenged before the appellate court. The appeal came to be filed, which is came to be registered as Criminal Appeal No.25 of 2013 before the appellate court. During pendency of the appeal, the present applicant filed an application under Section 326(3) of the Code, praying for de novo trial. The application preferred by the revisionist - applicant came to be rejected, which is impugned in the present revision application.

[3] Though Rule has been served upon the respondent No.2, no one remained present on behalf of the respondent No.2.

[4] Heard Mr. H. A. Qureshi, learned advocate appearing on behalf of Mr. R. J. Goswami, learned advocate for the applicant. Mr. Qureshi, learned advocate has contended that the order passed by the appellate court is de hors the provisions of law and without any reasons. Mr. Qureshi, learned advocated has submitted that the appellate court has not considered the provisions of Code more particularly Section 326(3) of the Code. It was further submitted that during the trial, two predecessor Magistrates had recorded the evidence, while the successor Magistrate had heard the arguments and pronounced the judgment. The case is triable as a summary trial and there are clear provisions under Section 326(3) of the Code that in a summary trial, only one magistrate has to complete the proceedings. In the instant case, three different Magistrates had dealt with the proceedings of the case and, therefore, the order passed by the appellate court, rejecting the application of the present applicant, is required to be quashed and set aside.

[4.1] To substantiate his submission, Mr. Qureshi, learned advocate has relied upon the decision of the Hon'ble Apex Court which is in the case of Nitinbhai Saevatilal Shah and another versus Manubhai Manjibhai Panchal and another reported in (2011) 9 SCC 638. It has been submitted by Mr. Qureshi, learned advocate that sub-section (3) of Section 326 makes it clear that sub-section (1) does not apply to summary trial. The prohibition contained in sub-section (3) of Section 326 of the Code is absolute and admits of no exception. Relying on Section 326(3) of the Code, it has been submitted by Mr. Qureshi, learned advocate that in summary proceedings, the successor Judge or Magistrate has no authority to proceed with the trial from a stage at which his predecessor has left it.

[4.2] Further reliance is placed by Mr. Qureshi, learned