Rajasthan High Court - Jaipur
Shyam Prakash Agarwal vs Ramkesh Kumar Gupta And Anr on 1 July, 2013
In the High Court of Judicature for Rajasthan at Jaipur Bench Jaipur Judgment S.B.Cr. Revision Petition No.1340/2012 Shyam Prakash Agarwal vs Ramesh Kumar Gupta amd anr. Date of order- 1.7.2013 Present Hon'ble Mrs Justice Nisha Gupta Mr.Mahesh Chand Gupta for petitioner
Mr. Yashpal Jhala for accused respondent This Criminal Revision Petition under section 397 read with section 401 of Cr.P.C has been filed against the order dated 27.11.2012 passed by the Addl. District and Sessions Judge, No.9, Jaipur Metropolitan in Cr. Appeal no. 15/2012 whereby the appellate court had set aside the order of Addl. Chief Metropolitan Magistrate No.12,Jaipur Metropolitan City in complaint case no.849/2012 convicting the accused respondent and the matter has been remitted for re-consideration.
The brief facts of the case are that the complainant petitioner filed a complaint against the accused respondent under section 138 of the Negotiable Instrument Act. After trial of the complaint the accused respondent has been convicted under section 138 of the N.I Act and was sentenced to undergo two years simple imprisonment and a fine of Rs. 2,59,000/-. The accused respondent preferred an appeal against the said conviction and sentence and the appellate court has remitted the matter to the court below for retrial.
The contention of the petitioner is that the order of the appellate court is contrary to law as the case was tried as a summon case as no record has been prepared under sections 263 and 264 Cr.P.C and there was no reason to remit the matter to the learned trial court for summary trial under section 143 NI Act. The order is totally unjustified and uncalled for. Hence, the order of the appellate court be quashed and set aside. He has placed reliance on 2012(1) Cr.L.R (Raj.) 140, Ajay Nahta v. Rakesh K. Jain and Anr.
Per-contra the contention of the accused respondent is that there is no infirmity in the impugned order but he does not dispute about the legal position explained in the case of Ajay Nahta (supra).
Here in the present case it is not in dispute that the court below has tried the case as a summon case as admittedly no record has been prepared by the court below under sections 263 and 264 Cr.P.C and it has been clearly stated in 2007 Cr.L.J 122, Shivaji Sampat Jagtap v. Rajan Hiralal Arora & Anr, in which it has been held that if no record has been prepared under Sections 263 and 264 Cr.P.C, it will be treated that the case has been tried as regular summon case and the provisions of section 326(3) Cr.P.C will not be attracted and no de novo trial is needed. In the present case, the case has been tried as a summon case hence, the order of the appellate court to try the case under section 143 of the N.I Act is unjustified and deserves to be quashed.
In view of the above, the order dated 27.11.2012 passed by the Addl. District & Sessions Judge No.9, Jaipur Metropolitan in criminal appeal No. 15/2012 remanding the matter to the trial court is set aside and the appellate court is directed to decide the matter on merit. The parties are directed to appear before the appellate court on 23.7.2013. The revision petition stands allowed.
(Nisha Gupta),J om Item No.67 All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Om Prakash PA