Bombay High Court
Ravindrakumar Shitaldas Arora And ... vs Pankaj Ramprasad Sharma And Another on 12 June, 2018
Author: Rohit B. Deo
Bench: Rohit B. Deo
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL) 497 OF 2012
1 Ravindrakumar Shitaldas Arora,
aged about adult, Occ. Business
2 Deepak Jagdishchandra Arora,
aged about adult, Occ. Business
Both R/o. Pakki Kholi, Sindhi Camp
Akola, Tahsil & District Akola. ...APPELLANTS
...V E R S U S...
1 Pankaj Ramprasad Sharma
aged about adult, Occ. Business,
R/o. "Pankaj Sadan", Near Mukharjee
Bunglow, Gajanan Chowk, Rautwadi,
Akola, Tahsil & District Akola
2 State of Maharashtra,
Through D.G. P. Akola ...RESPONDENTS
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Shri. S.A. Mohta, counsel for applicants.
Shri S.S. Joshi, counsel for respondent 1.
Shri T.A. Mirza, APP for respondent 2.
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CORAM: ROHIT B. DEO, J.
DATE OF DECISION : 11-06-2018
JUDGMENT
The applicants who are the original accused in Summary Criminal Case 4437 of 2009 pending on the file of 2 nd Judicial Magistrate First Class, Akola are assailing the order passed below Exh. 01 dated 20.6.2012 directing de-novo trial and the order below exh 85 dated 30.6.2012 allowing the complainant to ::: Uploaded on - 13/06/2018 ::: Downloaded on - 14/06/2018 01:21:05 ::: 2 file fresh common evidence (orders impugned) rendered by the learned Magistrate which order is upheld in Criminal Revision 124 of 2012 decided by the learned Additional Sessions Judge - 2, Akola on 16.7.2012.
2 Heard Shri S.A. Mohta, the learned counsel for the applicants, Shri S.S. Joshi, the learned counsel for respondent 1 and Shri T.A. Mirza, the learned Additional Public Prosecutor for respondent 2.
3 Facts are not in dispute. In the complaint instituted under section 138 of the Negotiable Instruments Act ("Act" for short) the evidence of the complainant was recorded and an affidavit in lieu of oral examination in chief of the next witness was filed on record. At this stage, the learned Magistrate was transferred and the learned Magistrate who took charge directed de-novo trial relying on the judgment of the Apex court in Nitinbhai Saevatilal Shah and another...vs..Manubhai Manjibhai Panchal and another (2011)9 SCC 638. 4 The decision of the Apex Court in Nitinbhai's case is referred to and considered by the Apex Court in J.V. Baharuni & ::: Uploaded on - 13/06/2018 ::: Downloaded on - 14/06/2018 01:21:05 ::: 3 another ..vs.. State of Gujrat & another (2014) 10 SCC 494. It would be apposite to refer to and reproduce the following observations in J.V. Baharuni & another ..vs.. State of Gujrat & another:
"36. A case under section 138 of the N.I. Act, which requires to be tried in a summary way as contemplated under section 143 of the Act, when in fact, was tried as regular summons case it would not come within the purview of section 326 (3) of the Code. In other words, if the case in substance was not tried in a summary way, though was triable summarily, and was tried as a summons case, it need not be heard de novo and the succeeding Magistrate can follow the procedure contemplated under section 326 (1) of the Code [See Ramilaben Trikamlal Shah vs. Tube and Allied Products.]"
"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.]"
"43. There is no straight jacket formula to try the cases falling under the N.I. Act. The law provided therefor is so flexible that it is up to the prudent judicial mind to try the case `summarily' or otherwise. No doubt, the second proviso to Section 143 of the Act specifies that in case the Magistrate does not deem the case fit to try summarily, he shall record an order to that effect after hearing the parties. Just because this directive is not followed scrupulously by the Trial Court would itself not vitiate the entire trial and the appellate Court should not direct for a de-novo trial merely on the ground that the Trial Court had not recorded the order for not trying the case summarily."
5 The learned counsel for the applicant further relies on the decision of the Apex Court in Mehsana Nagrik Sahakari ::: Uploaded on - 13/06/2018 ::: Downloaded on - 14/06/2018 01:21:05 ::: 4 Bank Limited..vs.. Shreeji Cab Company and anothers (2014) 13 SCC 619.
"4. The High Court proceeded on an entirely different premise and disposed of the application filed by the respondents noting that the evidence in the matter had come to be recorded by Additional Chief Judicial Magistrate, Mehsana. The proceeding under Section 138 of the Negotiable Instruments Act is a summary trial proceeding. Hence, the successor Magistrate concerned had to record the evidence de novo and any order passed on the basis of the evidence recorded by his predecessor was not valid. The High Court relied upon the above judgment in support thereof and passed an order directing a fresh recording of evidence. It is against this order of the High Court that this appeal, by special leave, has been filed."
"5. Mr. Huzefa Ahmadi, learned senior counsel appearing for the appellant Bank pointed out that the law laid down by this Court in the above authority is that when a proceeding is conducted as a summary trial, and when one Magistrate has partly heard the case and is succeeded by another Magistrate, that second Magistrate has to re-hear the whole case afresh and he cannot start from the stage the first Magistrate left it. There was no question of the High Court asking the entire matter to be looked into by another Magistrate de novo, in the present case because, in fact, the evidence had not been recorded in a summary manner, but it was recorded in full. Mr. Sanjanwala, learned counsel appearing for the respondents, on the other hand, submits that the law laid down in Nitinbhai Saevatilal Shah & Anr. Vs. Manubhai Manjibhai Panchal be followed."
"6. We have perused the notes of evidence which are produced on record. They clearly show that the evidence in this case was recorded in full and not in a summary manner. That being so, we cannot but accept the submission of Mr. Ahmadi."
6 If the record is considered on the anvil of the enunciation of law by the Apex Court, it is manifest that the evidence was recorded in full and not in a summary manner. It is ::: Uploaded on - 13/06/2018 ::: Downloaded on - 14/06/2018 01:21:05 ::: 5 obvious that the learned Magistrate has not recorded the substance of the evidence as is contemplated in a summary trial. The recording is full and elaborate and the cross-examination of the complainant is extremely elaborate and consumes several pages of the record. The mechanical reliance placed by the learned Magistrate on the decision of the Apex Court in Nitinbhai Saevatilal Shah and another...vs..Manubhai Manjibhai Panchal and another renders the orders impugned unsustainable. 7 The application is allowed.
8 The orders impugned are set aside and the learned Magistrate is directed to continue with the trial from the stage at which de-novo trial was ordered.
9 The learned Magistrate is requested to dispose of the complaint as expeditiously as possible and in any event within six months from the date of receipt of this order.
JUDGE RS Belkhede, PA ::: Uploaded on - 13/06/2018 ::: Downloaded on - 14/06/2018 01:21:05 :::