Bombay High Court
Sau. Maya Gajanan Belge vs Anil Kashinath Kale And Another on 21 July, 2022
Bench: Avinash G. Gharote
1 9.APEAL.79-2020.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO. 79 OF 2020
( Sau. Maya Gajanan Belge Vs. Anil Kashinath Kale & Anr. )
Office Notes, Office Memoranda Court's or Judge's orders
of Coram, Appearances, Court's
orders or directions and
Registrar's orders
Mr. P.S. Gawai, Advocate for the Appellant.
Mr. Amit R. Chutke, A.P.P. for the Respondent No.2/State.
CORAM: AVINASH G. GHAROTE, J.
DATED : 21st JULY, 2022.
Heard Mr. Gawai, learned counsel for the
appellant and Mr. Chutke, learned APP for the
respondent No.2/State.
2. The learned Magistrate by judgment dated
20.06.2016, has convicted the respondent No.1, for the
offence punishable under Sections 448 and 504 of the
Indian Penal Code and sentenced him to suffer one
month Rigorous Imprisonment and to pay a fine of
Rs.1,000/-, in default to pay fine, to suffer one month
Simple Imprisonment for the offence punishable under
Section 448 of the Indian Penal Code and for the offence
punishable under Section 504 of the Indian Penal Code,
sentenced him to suffer one month Rigorous
Imprisonment and to pay a fine of Rs.5,000/-, in default
to pay fine, to suffer one month Simple Imprisonment
and acquitted him of the offence punishable under
Sections 509 and 506 of the Indian Penal Code.
2 9.APEAL.79-2020.odt
3. In an appeal challenging the same, the
learned appellate Court by the judgment dated
30.08.2019 (page 67) set aside the judgment of the
learned Magistrate, on the ground, that the proceedings
before the Magistrate were summary in nature under
Chapter XXI of the Code of Criminal Procedure and since
one Magistrate had recorded the plea plus particulars
and the evidence of PWs-1 to 4, whereas another
Magistrate had recorded the evidence of PW-5,
PW-6, statement under Section 313 of the Code of
Criminal Procedure and rendered the judgment without
ordering a denovo trial (para 14 page 66).
4. It is contended by Mr. Gawai, learned counsel
for the appellant, that the impugned judgment, does not
taken into consideration the factual position in the
matter of recording the evidence which would indicate,
that the evidence was not recorded in a summary
manner by taking notes of evidence but in a regular
manner like a summons case. He therefore submits,
relying upon Mehsana Nagrik Sahkari Bank Limited Vs.
Shreeji Cab Company and Others, (2014) 13 SCC 619,
that there was no question of the trial to be conducted
denovo, and therefore, the impugned judgment passed
by the appellate Court is required to be quashed and set
aside.
5. Mr. Chutke, learned APP for the respondent
No.2/State, does not dispute the proposition, that
considering the nature of evidence recorded, the
impugned judgment cannot be sustained.
3 9.APEAL.79-2020.odt
6. None appears for the respondent No.1,
though served.
7. The Apex Court in Mehsana Nagrik Sahkari
Bank Limited (supra), has categorically held, that when a
proceeding which is required to be conducted in a
summary manner if the evidence is recorded in full and
not in a summary manner, the question of conducting a
trial denovo upon the change of the Magistrate, in
between would not arise.
8. A perusal of the evidence placed on record of
PWs-1 to 6 would indicate, that the learned Magistrates
have not recorded any notes of evidence but have
recorded the evidence in full, in view of which, what has
been held in Mehsana Nagrik Sahkari Bank Limited
(supra), is clearly attracted, considering which, the
impugned judgment which takes a contrary view, cannot
be sustained, the same is accordingly quashed and set
aside and the matter be remanded back to the learned
appellate court for deciding the matter as per law.
9. The Appeal is allowed accordingly with no
order as to costs.
JUDGE
SD. Bhimte
Signed By:SHRIKANT
DAMODHAR BHIMTE
Signing Date:21.07.2022 18:32
