Sou. Kanta W/O Harish Khandelwal ... vs Mudatsar Ali Mujjafar Ali
2017 Latest Caselaw 8492 Bom

 711WP630.12-Judgment                                                                         1/13


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH, NAGPUR.


               CRIMINAL WRIT PETITION NO.  630   OF   2012


 PETITIONER :-                        Sou.   Kanta   W/o.   Harish   Khandelwal,   Aged
                                      about   48   years,   Occ.   Household,   R/o.
                                      Nawahate   Plot,   Badnera   Road,   Amravati
                                      through   Power   of   Attorney   Shri   Harish
                                      Shankarlal Khandelwal, R/o. Nawahate Plot,
                                      Badnera Road, Amravati, District Amravati.  


                                         ...VERSUS... 


 RESPONDENT :-                        Mudatsar   Ali   Mujjafar   Ali,   Aged   about   34
                                      years, Occ. Business, R/o. Chilam-Chawani,
                                      Camp Amravati, Tq. And Distt. Amravati. 


 ---------------------------------------------------------------------------------------------------
                     Mr.Amit Kukday, counsel for the petitioner.
                                 None for the respondent.
 ---------------------------------------------------------------------------------------------------


                                       CORAM :  SMT. REVATI MOHITE-DERE, J.

DATED : 07.11.2017

O R A L J U D G M E N T

Heard learned counsel for the petitioner. None appeared

for the respondent on 06/10/2017 as well as on 30/10/2017. Even

today none appears for the respondent.

711WP630.12-Judgment 2/13

2. By this petition, the petitioner has impugned the judgment

and order dated 05/11/2012 passed in Criminal Appeal No. 123 of

2008 by the learned Sessions Judge, Amravati, by which the judgment

and order of conviction and sentence passed by the learned Judicial

Magistrate First Class, Court No.6, Amravati in Summary Criminal Case

No.1412 of 2007, dated 04/09/2008 was quashed and set aside and the

matter was remanded back to the trial Court, for fresh trial.

3. Learned counsel for the petitioner submits that there was

no justification for the Appellate Court to remit the matter back to the

trial Court, for a de novo trial. He submits that the 138 case in

substance was tried as a summons case and not as a summary case, and

hence the question of a de novo trial did not arise. Learned counsel

relied on the following judgments:-

J.V. Baharuni and another v. State of Gujarat and another reported

in 2014(4) Mh.L.J. 192; Sukhdeo Ganeshram Tardeja v. Rajesh

Dayaram Sadhwani and another reported in 2016(2) Mh.L.J. 113;

Shivaji Sampat Jagtap v. Rajan Hiralal Arora and anr. reported in

2006 ALL MR (Cri) 2612; and unreported judgments i.e. M/s. Indo

Rama Synthetics (I) Ltd. v. M/s. HRK Infra & Oils and others) passed in

Criminal Application (APL) No.671 of 2011 and (Dinesh Thacker v.

711WP630.12-Judgment 3/13

State of Maharashtra and another) passed in Writ Petition No.3745 of

2011, to substantiate his submissions.

4. Perused the papers and the impugned judgment and order

dated 05/11/2012 with the assistance of the learned counsel for the

petitioner. On 28/03/2007, the petitioner (original complainant) filed

a complaint in the Court of the learned Judicial Magistrate First Class,

Court No.6, Amravati, which was numbered as Summary Criminal case

No.1412 of 2007. The learned Magistrate was pleased to issue process

against the respondent, pursuant to which, the respondent appeared

before the trial Court. The petitioner led the evidence of two witnesses

and closed his evidence. Thereafter, the statement of the respondent-

accused under section 313 of Criminal Procedure Code was recorded.

The respondent-accused in his defence examined three witnesses, who

were also cross-examined by the counsel for the petitioner. Thereafter,

the petitioner (original complainant) examined another witness i.e. his

third witness namely, Shri Harish Shankarlal Khandelwal. The said

witness was also cross-examined by the counsel for the respondent-

accused. It however appears, that no questions were put to the

respondent-accused under section 313 of Criminal Procedure Code,

after the said witness, Harish Khandelwal was examined by the

petitioner-complainant. The said fact is also not disputed by the learned

711WP630.12-Judgment 4/13

counsel for the petitioner.

5. The submission advanced by the learned counsel for the

petitioner that the Appellate Court had erred in remanding the matter

back to the trial Court for a fresh trial/de novo trial will have to be

accepted, in view of the settled position of law. A perusal of the

impugned judgment and order dated 05/11/2012 passed by the learned

Sessions Judge, Amravati, shows that reliance placed by the said Court

on the judgment in the case of Nitinbhai Saevatilal Shah and another

v. Manubhai Manjibhai Panchal and another, reported in (2011) 3

SCC (Cri) 788 was clearly misconceived in the facts. In the case of

Nitinbhai Saevatilal Shah (supra), the Apex Court was dealing with a

case, which was tried 'summarily'.

6. It is pertinent to note, that the Apex Court subsequently in

the case of J.V. Baharuni (supra) has observed as under :-

"30. In Nitinbhai we find that the entire case was tried 'summarily' and the Magistrate who issued process, was transferred after recording the evidence. The succeeding Magistrate delivered the judgment basing upon the memo filed by the parties declaring that they had no objection to proceed with the matter on the basis of evidence recorded by his predecessor. Ultimately, this Court remanded the matter to the Trial Court for de novo trial opining that no amount

711WP630.12-Judgment 5/13

of consent by the parties can confer jurisdiction on a Court of law, where there exists none, nor can they divest a Court of jurisdiction which it possesses under the law.

31. Coming to the facts of the present cases, on scrutiny of record available in SLP (Cri) No. 5623 of 2012, we found that there has been in total 82 hearings spread over five years. Out of 82 hearings, 67 hearings were done by Jt. C.J. (J.D.) and J.M.F.C., Veraval. The Magistrate was transferred on 24-2-2005 and was replaced by J.M.F.C., Veraval who heard the case for 14 more times and delivered judgment on 15th hearing i.e. on 12-9-2005. Thus by any stretch of imagination, the trial which extended over five years and was decided in over 82 hearings with elaborate cross examination, deposition and all trappings of regular trial cannot simply be termed as "summary trial".

32. On perusal of record of other two cases (SLP (Cri.) Nos.

3332 of 2012 and 734 of 2013), we found the similar situation. The Complaint was taken up on 20 th August, 2001 and the Trial Court decided the criminal case on 30 th May, 2009 declaring the accused Appellants as innocent, after conducting about 132 hearings. It is also evident from the record that in SLP(Cri) No. 734 of 2013, the criminal proceedings under the N.I. Act were initiated in December, 1998 before the Trial Court which came to be concluded by the judgment of the Metropolitan Magistrate on 7th August, 2009. Thus, during the period of about 11 years a total of 103 hearings took place and a detailed trial procedure had

711WP630.12-Judgment 6/13

been followed. Going thereby, prima facie, it is difficult for us to accept that the case was tried summarily.

33. Moreover, these cases were decided by the same judge in the High Court and there seems to be a mechanical application of Nitinbhai without discerning the difference on facts of Nithinbhai and the present cases. In Nitinbhai, the case was established as being decided 'summarily' whereas in the present cases, no such independent inquiry has been undertaken by the High Court to arrive at a just conclusion whether the cases were tried "summarily" or in a "regular way".

34. Be that as it may, to satisfy ourselves we have carefully gone through the records of the Trial Court as well as the High Court in each matter before us. There is no doubt, as per the record, learned Magistrate has not specifically mentioned that the trial was conducted as summons case or summary case. Though in the record of SLP (Cri) No.734 of 2013, at some places the word 'summary' was mentioned as regards to the nature of proceedings of the case, having given our anxious and thorough consideration, we found that the word 'summary' used therein was with reference to Chapter XXII of Code of Criminal Procedure, 1882 and it does not relate to the 'summary trial' envisaged under section 143, of the N.I. Act. Pertinently, before the Trial Court the Suit No. 4457 of 2001 has been referred at some places as 'Summary Suit' and at some other places it has been referred as 'Civil Suit'. Similarly, the case number 5294 of 1998 has been

711WP630.12-Judgment 7/13

shown at some places as Summary Case and at some other places it was shown as Criminal Case. After a careful examination of the record, we came to the conclusion that the word 'summary' used at some places was with reference to summary trials prescribed under Code of Criminal Procedure Needless to say that the summary trial as preferred mode of trial in the matters related to negotiable instruments was inserted by the Amendment Act, 2002 only w.e.f. 6th February, 2003.

35 & 36 ...

37. But where even in a case that can be tried summarily, the Court records the evidence elaborately and in verbatim and defence was given full scope to cross-examine, such procedure adopted is indicative that it was not summary procedure and therefore, succeeding Magistrate can rely upon the evidence on record and de novo enquiry need not be conducted [See A. Krishna Reddy vs. State and Anr . 1999(6) ALD 279].

38 to 56. .....

57. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It should be limited to the extreme exigency to avert "a failure of justice". Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has got the plenary powers to revaluate and reappraise the evidence and to take additional evidence on

711WP630.12-Judgment 8/13

record or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the bulky records relating to the earlier proceedings by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes imperative for the purpose of averting "failure of justice". The superior Court which orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the trouble to reach the Court and deposed their versions in the very same case. The re-enactment of the whole labour might give the impression to the litigant and the common man that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation [See State of M.P. vs. Bhooraji (2001) 7 SCC 679].

58. Thus, in summation, we are of the considered opinion that the exercise of remitting the matter to Trial Court for de novo trial should be done only when the appellate Court is satisfied after thorough scrutiny of records and then recording reason for the same that the trial is not summons trial but summary trial. The non-exhaustive list which may indicate the difference between both modes of trial is framing of charges, recording of statement Under section 313 of the

711WP630.12-Judgment 9/13

Code, whether trial has been done in the manner prescribed under sections 262-265 of Code of Criminal Procedure, how elaborately evidence has been adduced and taken on record, the length of trial etc. In summary trial, the accused is summoned, his plea is recorded under section 263(g) of Code of Criminal Procedure and finding thereof is given by the Magistrate under section 263(h) of Code of Criminal Procedure of his examination.

59. ....

60 to 60.4.....

60.5 Remitting the matter for de novo trial should be exercised as a last resort and should be used sparingly when there is grave miscarriage of justice in the light of illegality, irregularity, incompetence or any other defect which cannot be cured at an appellate stage. The appellate Court should be very cautious and exercise the discretion judiciously while remanding the matter for de novo trial.

60.6. While examining the nature of the trial conducted by the Trial Court for the purpose of determining whether it was summary trial or summons trial, the primary and predominant test to be adopted by the Appellate Court should be whether it was only the substance of the evidence that was recorded or whether the complete record of the deposition of the witness in their chief examination, cross examination and reexamination in verbatim was faithfully placed on record. The Appellate Court has to go through each and every minute detail of the trial Court record and then

711WP630.12-Judgment 10/13

examine the same independently and thoroughly to reach at a just and reasonable conclusion."

7. It is pertinent to note, that in the present case the

complainant examined two witnesses, who were cross-examined at

length by the respondent's counsel. Thereafter, the statement of the

respondent-accused under section 313 of Criminal Procedure Code was

recorded, after which, the respondent-accused led the evidence of three

witnesses, who were also cross-examined by the petitioner's counsel. It

also appears that thereafter, the complainant examined another witness

by the name Harish Khandelwal, who was also cross-examined by the

respondent's counsel. It appears that the learned Magistrate however

failed to record the statement of the respondent-accused under section

313 of Criminal Procedure Code again, after Harish Khandelwal was

examined. The learned Magistrate thereafter heard the parties and vide

judgment and order dated 04/09/2008 was pleased to convict the

respondent-accused for the offence punishable under section 138 of

Negotiable Instruments Act and sentenced him to suffer rigorous

imprisonment for six months. The respondent-accused was also directed

to pay compensation of Rs.1,25,000/- to the petitioner. The said

judgment and order of conviction was challenged by the respondent-

accused in appeal. The learned Sessions Judge, Amravati, after hearing

711WP630.12-Judgment 11/13

the parties was pleased to set aside the judgment and order of

conviction passed by the trial Court and remanded the matter back to

the trial Court for de novo trial, in view of the Apex Court judgment in

Nitinbhai's case.

8. The learned Sessions Judge, Amravati failed to consider

the manner in which evidence was recored in the present case i.e. it was

like evidence recorded in a regular summons case and not as in a

summary case. The present case had all the trappings of a regular case.

In the light of what is discussed herein above, the finding of the

Appellate Court directing de novo trial was unjustified.

9. However, it is a matter of record, that the trial Court had

failed to record the statement of the respondent-accused under section

313 of the Code, after the evidence of Harish Khandelwal was recorded

and the learned Judge after hearing the parties, proceeded to convict

and sentence the respondent-accused as aforesaid. It appears that the

said defect was brought to the notice of the Appellate Court, as a result

of which the Appellate Court has also observed, that the mandatory

provision was not complied with, and therefore also set aside the

judgment and order of conviction and sentence on this count and

remitted the matter to the trial Court. Admittedly, the statement of the

711WP630.12-Judgment 12/13

respondent-accused under section 313 of the Code was recorded after

the first two witnesses of the complainant were examined and cross-

examined. However, when the third witness i.e. Harish Khandelwal

was examined by the petitioner-complainant, which was after recording

of the evidence of respondent's three witnesses, admittedly, no

questions were put by the trial Court to the respondent-accused, after

Harish Khandelwal was examined, as mandated under section 313 of

the Code. Thus, the impugned order, in so much as, it quashes and sets

aside the judgment and order of conviction and sentence dated

04/09/2008 passed by the trial Court and remits the matter to the trial

Court is upheld; whereas the direction to conduct de novo trial is

quashed and set aside. It is made clear, that the learned Judicial

Magistrate First Class, Court No.6, Amravati is not required to conduct

the case afresh or conduct a de novo trial.

10. In this light of the matter, the petition is partly allowed on

the following terms and conditions:-

(i) The judgment and order dated 05/11/2012 passed by the

learned Sessions Judge, Amravati in Criminal Appeal No.123 of 2001 in

so much as it directs de novo trial is quashed and set aside.

  711WP630.12-Judgment                                                                  13/13


 (ii)             The   learned   Judicial   Magistrate   First   Class,   Court   No.6,

Amravati to record the statement of the respondent-accused under

section 313 of Criminal Procedure Code, on the basis of the evidence of

Harish Khandelwal and after recording the same, the trial Court shall

rehear the parties and thereafter pass appropriate orders.

(iii) Both the parties shall appear before the trial Court on

30/11/2017 at 10.30 a.m.

(iv) The learned Magistrate shall complete the said process as

expeditiously as possible and in any event within three months from

30/11/2017.

Rule is made absolute in the aforesaid terms. There shall

be no order as to costs.

11. All the parties to act on the authenticated copy of this

judgment.

JUDGE

KHUNTE