Jagdishbhai Gordhandas Shah vs Girish Champaklal Amin
2023 Latest Caselaw 6787 Guj

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     R/CR.RA/524/2012                                JUDGMENT DATED: 14/09/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/CRIMINAL REVISION APPLICATION NO. 524 of 2012


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE J. C. DOSHI

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                         JAGDISHBHAI GORDHANDAS SHAH
                                     Versus
                        GIRISH CHAMPAKLAL AMIN & 1 other(s)
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Appearance:
MS NANDINI JOSHI(1210) for the Applicant(s) No. 1
MR NK MAJMUDAR(430) for the Respondent(s) No. 1
MS DIVYANGANA JHALA, APP for the Respondent(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                 Date : 14/09/2023

                                 ORAL JUDGMENT

1. By way of this revision application filed u/s 397 r/w section 401 of the Code of Criminal Procedure, 1978, the petitioner challenges order dated 25.7.2012 passed by the

NEUTRAL CITATION

R/CR.RA/524/2012 JUDGMENT DATED: 14/09/2023

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learned 9th Addl. Sessions Judge, Vadodara below Exh.32 in Criminal Appeal No.115 of 2010, whereby the petitioner accused preferred an application for de novo trial of the case inter alia relying upon the judgment of the Hon'ble Apex Court in case of Nitin Senvantilal Shah and others Vs. Manubhai Manjibhai Panchal reported in 2011(9) SCC 638.

2. Heard learned advocate Ms. Nandini Joshi for the petitioner as well as learned APP Ms. Divyangana Jhala for the respondent State. None remained present to assist the Court from the other side.

3. The application Exh.32 in Criminal Appeal No.115 of 2010 was moved inter alia on the ground that since the offence punishable u/s 138 of the NI Act is summary triable, it should be tried before one and same judge, but in the case on hand, it has been tried by more than one judge and therefore, it has breached the very provisions of the summary trial. The learned Court below have referred various judgments on record, declined to grant relief in favour of the petitioner inter alia on the ground that trial u/s 138 of the NI Act was tried as a summons triable case and secondly, no contention has been taken in the appeal memo. Therefore, the petitioner is not entitled to take such kind of contention at the inter locutory stage.

4. Having heard learned advocate for the petitioner, the issue is no more res integra. The issue was raised before the Hon'ble Apex Court in case of JV Bahurani and another Vs. State of Gujarat and another reported in (2014) 10 SCC 494. The Hon'ble Apex Court held and observed as following:-

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R/CR.RA/524/2012 JUDGMENT DATED: 14/09/2023

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"A case under Section 138 of the Negotiable Instruments Act, 1881 (the NI Act)which requires to be tried in a summary way as contemplated under Section 143 of the NI Act, when in fact, was tried as regular summons case would not come within the purview of Section 326(3) CrPC. In other words, if the case in substance was not tried in a summary way, though was triable summarily, and was tried as a regular summons case, it need not be heard de novo and the succeeding Magistrate can follow the procedure contemplated h under Section 326(1) CrPC. Where 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 th evidence on record and de novo enquiry need not be conducted."

5. The finding herein above is squarely applicable to the issue raised by the petitioner and answering the said issue.

6. In view of above aspects, the petition is bereft of merit and is required to be rejected and is accordingly rejected. Rule discharged. Interim relief, if any, stands vacated forthwith.

7. The age of the criminal appeal indicates that it requires urgent decision on it and therefore, final hearing of the criminal appeal is expedited. The learned Court below shall make an endevour to hear and decide the appeal at the earliest possible time.

(J. C. DOSHI,J) SHEKHAR P. BARVE