Pravin S/O Suresh Agrawal vs State Of Mah. Thr. District Govt. ...
2022 Latest Caselaw 6494 Bom

Judgment                                                         apl1040.21

                                  1

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


           CRIMINAL APPLICATION [APL] No. 1040/2021.

Pravin s/o Suresh Agrawal,
Aged about 38 years, Occupation
Business, resident of Modi Market,
Near Indira Gandhi Stadium,
Gondia.                                       ...     APPLICANT.


                              VERSUS


1.State of Maharashtra,
through District Government
Pleader, Gondia.

2.Smt. Simmy wd/o Pramjeetsingh
Chawla, Aged about 55 years,
Occupation - Business, resident of
c/o. Kishan Gandi, Near Pacific Hostel,
In front of Gujarati School, Railtoli,
Gondia, District Gondia.                      ...   NON-APPLICANTS.



                      ---------------------------------
            Mr. V.S. Mishra, Advocate for the Applicant.
           Mr.S.M. Ukey, Addl.P.P. for Non-applicant No.1.
               None for Non-applicant No.2 - Served.
                      ----------------------------------


                                 CORAM : VINAY JOSHI, J.

                                 DATE     :    JULY 11, 2022.

Rgd.                                                    RAKESH GANESHLAL DHURIYA

                                                        12.07.2022 12:32
 Judgment                                                          apl1040.21




ORAL JUDGMENT :

Despite service, non-applicant no.2 has chosen not to

appear in the matter. With consent of the learned Counsel present

for the parties, the matter is taken up for final disposal at the stage

of admission itself.

Admit.

2. The applicant has impugned herein the order dated

24.02.2020 passed by the Sessions Judge, Gondia in Criminal

Revision Application No.45/2019, whereby the Sessions Court has

directed the Magistrate to conduct de nova trial.

3. The applicant has filed Summary Criminal Case

No.1207/2014 for the offence punishable under Section 138 of the

Negotiable Instruments Act. The applicant has led his evidence on

affidavit and also led evidence of one more witness. When the

matter was posted for recording statement of non-applicant no.2

under Section 313 of the Code of Criminal Procedure, the accused

has applied to the Magistrate for conducting de nova trial in terms of

Rgd. RAKESH GANESHLAL DHURIYA

12.07.2022 12:32 Judgment apl1040.21

Section 326 of the Code. The said application was moved since the

Magistrate who has recorded the evidence has been transferred and

the case was assigned to another Magistrate. It was contention

before the Magistrate that since it is a summary proceeding in terms

of Section 147 of the Negotiable Instruments Act, it is a mandatory

for the transferee Magistrate to conduct de nova trial. The learned

Magistrate has rejected said contention, however, in revision, the

learned Sessions Judge has reversed the order of the trial Court and

directed to hold de nova trial.

4. The issue involved is covered by the decision of this Court

in case of Ganpatrao Mahadeorao Kapse .vrs. Rajiv Bhupendranath

Sidhra (Criminal Application [Apl] No.175/2012 dated 10.02.2014),

wherein this Court by relying on the decision of the Supreme Court

in case of Mehsana Nagrik Sahakari Bank Ltd. .vrs. Shreeji Cab Co.

and others - 2013 (4) Crime 351 (SC), has ruled that if the earlier

Magistrate has recorded the evidence in detail, then there is no

necessity for the succeeding Magistrate to hold de nova trial.

Rgd.                                                     RAKESH GANESHLAL DHURIYA

                                                         12.07.2022 12:32
 Judgment                                                        apl1040.21

5. On perusal of the evidence, it is abundant clear that the

complainant has filed his detail evidence on affidavit and he has

been thoroughly cross-examined. Not only that the complainant has

also examined one witness who has also been cross-examined. The

record conspicuously reflects that the magistrate who has recorded

the evidence has not taken mere notes of evidence, but, recorded

evidence in extenso like summons triable case. It is evidence from

the record that the evidence was recorded by in all three Magistrate

and when the matter was transferred to the fourth one, at that time,

the accused urged for de nova trial. Since the case was tried as a

summons trial and the evidence is recorded in detail, the contention

raised by the accused is wholly untenable.

6. In above referred case of Supreme Court in case of

Mehsana Nagrik (supra), it is ruled that when the evidence during

trial was recorded in full and not in a summary manner, it was not

required for the successor Magistrate to record evidence de nova. In

view of said settled position, the impugned order would not sustain

in the eyes of law. The learned Sessions Judge completely erred in

Rgd. RAKESH GANESHLAL DHURIYA

12.07.2022 12:32 Judgment apl1040.21

understanding the settled position of law. In view of that, the

application succeeds. The impugned order dated 25.02.2020 passed

by the Sessions Judge, Gondia in Criminal Revision Application No.

45/2019 is hereby quashed and set aside. The order dated

09.07.2019 passed by the Judicial Magistrate First Class, Court No.6,

Gondia in Summary Criminal Case No. 1207/2004 is maintained.

Criminal Application is allowed and disposed of in aforesaid terms.

                                            JUDGE




Rgd.                                                    RAKESH GANESHLAL DHURIYA

                                                        12.07.2022 12:32