1

In the High Court of Judicature for Rajasthan

at Jaipur Bench Jaipur

Judgment

S.B.Cr. Revision Petition No.1309/2012

Shyam Prakash Agarwal

vs

Ramesh Kumar Gupta amd anr.

Date of order- 1.7.2013

Present

Hon'ble Mrs Justice Nisha Gupta

Mr.Mahesh Chand Gupta for petitioner

Mr. Yashpal Jhala for accused respondent

This Criminal Revision Petition under

section 397 read with section 401 of Cr.P.C

has been filed against the order dated

27.11.2012 passed by the Addl. District and

Sessions Judge, No.9, Jaipur Metropolitan in

Cr. Appeal no. 14/2012 whereby the appellate

court had set aside the order of Addl. Chief

Metropolitan

Magistrate

No.12,Jaipur

Metropolitan City in complaint case

no.848/2012 convicting the accused respondent

and the matter has been remitted for re-

consideration.

The brief facts of the case are that the

complainant petitioner filed a complaint

against the accused respondent under section

2

138 of the Negotiable Instrument Act. After

trial of the complaint the accused respondent

has been convicted under section 138 of the

N.I Act and was sentenced to undergo two

years simple imprisonment and a fine of Rs.

2,58,500/-. The accused respondent preferred

an appeal against the said conviction and

sentence and the appellate court has remitted

the matter to the court below for retrial.

The contention of the petitioner is that

the order of the appellate court is contrary

to law as the case was tried as a summon case

as no record has been prepared under sections

263 and 264 Cr.P.C and there was no reason to

remit the matter to the learned trial court

for summary trial under section 143 NI Act.

The order is totally unjustified and uncalled

for. Hence, the order of the appellate court

be quashed and set aside. He

has

placed

reliance on 2012(1) Cr.L.R (Raj.) 140, Ajay

Nahta v. Rakesh K. Jain and Anr.

Per-contra the contention of the accused

respondent is that there is no infirmity in

the impugned order but he does not dispute

about the legal position explained in the

case of Ajay Nahta (supra).

Here in the present case it is not in

3

dispute that the court below has tried the

case as a summon case as admittedly no

record has been prepared by the court below

under sections 263 and 264 Cr.P.C and it has

been clearly stated in 2007 Cr.L.J 122,

Shivaji Sampat Jagtap v. Rajan Hiralal Arora

& Anr, in which it has been held that if no

record has been prepared under Sections 263

and 264 Cr.P.C, it will be treated that the

case has been tried as regular summon case

and the provisions of section 326(3) Cr.P.C

will not be attracted and no de novo trial is

needed. In the present case, the case has

been tried as a summon case hence, the order

of the appellate court to try the case under

section 143 of the N.I Act is unjustified and

deserves to be quashed.

In view of the above, the order dated

27.11.2012 passed by the Addl. District &

Sessions Judge No.9, Jaipur Metropolitan in

criminal appeal No. 14/2012 remanding the

matter to the trial court is set aside and

the appellate court is directed to decide the

matter on merit. The parties are directed to

appear before the appellate court 23.7.2013.

The revision petition stands allowed.

(Nisha Gupta),J

4

om

Item No.68

All corrections made in the judgment/order have been incorporated in

the judgment/order being emailed.

Om Prakash

PA