Full Judgment Text
711WP630.12Judgment 1/13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 630 OF 2012
PETITIONER : Sou. Kanta W/o. Harish Khandelwal, Aged
about 48 years, Occ. Household, R/o.
Nawahate Plot, Badnera Road, Amravati
through Power of Attorney Shri Harish
Shankarlal Khandelwal, R/o. Nawahate Plot,
Badnera Road, Amravati, District Amravati.
...VERSUS...
RESPONDENT : Mudatsar Ali Mujjafar Ali, Aged about 34
years, Occ. Business, R/o. ChilamChawani,
Camp Amravati, Tq. And Distt. Amravati.
Mr.Amit Kukday, counsel for the petitioner.
None for the respondent.
CORAM : SMT. REVATI MOHITEDERE, J.
DATED : 07.11.2017
O R A L J U D G M E N T
Heard learned counsel for the petitioner. None appeared
for the respondent on 06/10/2017 as well as on 30/10/2017. Even
today none appears for the respondent.
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2. By this petition, the petitioner has impugned the judgment
and order dated 05/11/2012 passed in Criminal Appeal No. 123 of
2008 by the learned Sessions Judge, Amravati, by which the judgment
and order of conviction and sentence passed by the learned Judicial
Magistrate First Class, Court No.6, Amravati in Summary Criminal Case
No.1412 of 2007, dated 04/09/2008 was quashed and set aside and the
matter was remanded back to the trial Court, for fresh trial.
3. Learned counsel for the petitioner submits that there was
no justification for the Appellate Court to remit the matter back to the
trial Court, for a de novo trial. He submits that the 138 case in
substance was tried as a summons case and not as a summary case, and
hence the question of a de novo trial did not arise. Learned counsel
relied on the following judgments:
J.V. Baharuni and another v. State of Gujarat and another reported
in 2014(4) Mh.L.J. 192 ; Sukhdeo Ganeshram Tardeja v. Rajesh
Dayaram Sadhwani and another reported in 2016(2) Mh.L.J. 113 ;
Shivaji Sampat Jagtap v. Rajan Hiralal Arora and anr. reported in
2006 ALL MR (Cri) 2612; and unreported judgments i.e. M/s. Indo
Rama Synthetics (I) Ltd. v. M/s. HRK Infra & Oils and others) passed in
Criminal Application (APL) No.671 of 2011 and (Dinesh Thacker v.
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State of Maharashtra and another) passed in Writ Petition No.3745 of
2011, to substantiate his submissions.
4. Perused the papers and the impugned judgment and order
dated 05/11/2012 with the assistance of the learned counsel for the
petitioner. On 28/03/2007, the petitioner (original complainant) filed
a complaint in the Court of the learned Judicial Magistrate First Class,
Court No.6, Amravati, which was numbered as Summary Criminal case
No.1412 of 2007. The learned Magistrate was pleased to issue process
against the respondent, pursuant to which, the respondent appeared
before the trial Court. The petitioner led the evidence of two witnesses
and closed his evidence. Thereafter, the statement of the respondent
accused under section 313 of Criminal Procedure Code was recorded.
The respondentaccused in his defence examined three witnesses, who
were also crossexamined by the counsel for the petitioner. Thereafter,
the petitioner (original complainant) examined another witness i.e. his
third witness namely, Shri Harish Shankarlal Khandelwal. The said
witness was also crossexamined by the counsel for the respondent
accused. It however appears, that no questions were put to the
respondentaccused under section 313 of Criminal Procedure Code,
after the said witness, Harish Khandelwal was examined by the
petitionercomplainant. The said fact is also not disputed by the learned
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counsel for the petitioner.
5. The submission advanced by the learned counsel for the
petitioner that the Appellate Court had erred in remanding the matter
back to the trial Court for a fresh trial/ de novo trial will have to be
accepted, in view of the settled position of law. A perusal of the
impugned judgment and order dated 05/11/2012 passed by the learned
Sessions Judge, Amravati, shows that reliance placed by the said Court
on the judgment in the case of Nitinbhai Saevatilal Shah and another
v. Manubhai Manjibhai Panchal and another , reported in (2011) 3
SCC (Cri) 788 was clearly misconceived in the facts. In the case of
Nitinbhai Saevatilal Shah ( supra ), the Apex Court was dealing with a
case, which was tried 'summarily'.
6. It is pertinent to note, that the Apex Court subsequently in
the case of J.V. Baharuni (supra) has observed as under :
“30. In Nitinbhai we find that the entire case was tried
'summarily' and the Magistrate who issued process, was
transferred after recording the evidence. The succeeding
Magistrate delivered the judgment basing upon the memo
filed by the parties declaring that they had no objection to
proceed with the matter on the basis of evidence recorded by
his predecessor. Ultimately, this Court remanded the matter
to the Trial Court for de novo trial opining that no amount
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of consent by the parties can confer jurisdiction on a Court of
law, where there exists none, nor can they divest a Court of
jurisdiction which it possesses under the law.
31. Coming to the facts of the present cases, on scrutiny of
record available in SLP (Cri) No. 5623 of 2012, we found
that there has been in total 82 hearings spread over five
years. Out of 82 hearings, 67 hearings were done by Jt. C.J.
(J.D.) and J.M.F.C., Veraval. The Magistrate was transferred
on 2422005 and was replaced by J.M.F.C., Veraval who
heard the case for 14 more times and delivered judgment on
th
15 hearing i.e. on 1292005. Thus by any stretch of
imagination, the trial which extended over five years and
was decided in over 82 hearings with elaborate cross
examination, deposition and all trappings of regular trial
cannot simply be termed as "summary trial".
32. On perusal of record of other two cases (SLP (Cri.) Nos.
3332 of 2012 and 734 of 2013), we found the similar
th
situation. The Complaint was taken up on 20 August, 2001
th
and the Trial Court decided the criminal case on 30 May,
2009 declaring the accused Appellants as innocent, after
conducting about 132 hearings. It is also evident from the
record that in SLP(Cri) No. 734 of 2013, the criminal
proceedings under the N.I. Act were initiated in December,
1998 before the Trial Court which came to be concluded by
th
the judgment of the Metropolitan Magistrate on 7 August,
2009. Thus, during the period of about 11 years a total of
103 hearings took place and a detailed trial procedure had
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been followed. Going thereby, prima facie, it is difficult for us
to accept that the case was tried summarily.
33. Moreover, these cases were decided by the same judge in
the High Court and there seems to be a mechanical
application of Nitinbhai without discerning the difference on
facts of Nithinbhai and the present cases. In Nitinbhai, the
case was established as being decided 'summarily' whereas in
the present cases, no such independent inquiry has been
undertaken by the High Court to arrive at a just conclusion
whether the cases were tried "summarily" or in a "regular
way".
34. Be that as it may, to satisfy ourselves we have carefully
gone through the records of the Trial Court as well as the
High Court in each matter before us. There is no doubt, as
per the record, learned Magistrate has not specifically
mentioned that the trial was conducted as summons case or
summary case. Though in the record of SLP (Cri) No.734 of
2013, at some places the word 'summary' was mentioned as
regards to the nature of proceedings of the case, having given
our anxious and thorough consideration, we found that the
word 'summary' used therein was with reference to Chapter
XXII of Code of Criminal Procedure, 1882 and it does not
relate to the 'summary trial' envisaged under section 143, of
the N.I. Act. Pertinently, before the Trial Court the Suit No.
4457 of 2001 has been referred at some places as 'Summary
Suit' and at some other places it has been referred as 'Civil
Suit'. Similarly, the case number 5294 of 1998 has been
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shown at some places as Summary Case and at some other
places it was shown as Criminal Case. After a careful
examination of the record, we came to the conclusion that
the word 'summary' used at some places was with reference
to summary trials prescribed under Code of Criminal
Procedure Needless to say that the summary trial as
preferred mode of trial in the matters related to negotiable
instruments was inserted by the Amendment Act, 2002 only
th
w.e.f. 6 February, 2003.
35 & 36 …
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 crossexamine, 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 and Anr . 1999(6)
ALD 279].
38 to 56. …..
57. A de novo trial should be the last resort and that too
only when such a course becomes so desperately
indispensable. It should be limited to the extreme exigency to
avert "a failure of justice". Any omission or even the illegality
in the procedure which does not affect the core of the case is
not a ground for ordering a de novo trial. This is because the
appellate Court has got the plenary powers to revaluate and
reappraise the evidence and to take additional evidence on
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record or to direct such additional evidence to be collected by
the trial Court. But to replay the whole laborious exercise
after erasing the bulky records relating to the earlier
proceedings by bringing down all the persons to the Court
once again for repeating the whole depositions would be a
sheer waste of time, energy and costs unless there is
miscarriage of justice otherwise. Hence the said course can be
resorted to when it becomes imperative for the purpose of
averting "failure of justice". The superior Court which orders
a de novo trial cannot afford to overlook the realities and the
serious impact on the pending cases in trial Courts which are
crammed with dockets, and how much that order would
inflict hardship on many innocent persons who once took all
the trouble to reach the Court and deposed their versions in
the very same case. The reenactment of the whole labour
might give the impression to the litigant and the common
man that law is more pedantic than pragmatic. Law is not
an instrument to be used for inflicting sufferings on the
people but for the process of justice dispensation [See State of
M.P. vs. Bhooraji (2001) 7 SCC 679].
58. Thus, in summation, we are of the considered opinion
that the exercise of remitting the matter to Trial Court for de
novo trial should be done only when the appellate Court is
satisfied after thorough scrutiny of records and then
recording reason for the same that the trial is not summons
trial but summary trial. The nonexhaustive list which may
indicate the difference between both modes of trial is framing
of charges, recording of statement Under section 313 of the
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Code, whether trial has been done in the manner prescribed
under sections 262265 of Code of Criminal Procedure, how
elaborately evidence has been adduced and taken on record,
the length of trial etc. In summary trial, the accused is
summoned, his plea is recorded under section 263(g) of Code
of Criminal Procedure and finding thereof is given by the
Magistrate under section 263(h) of Code of Criminal
Procedure of his examination.
59. ….
60 to 60.4.….
60.5 Remitting the matter for de novo trial should be
exercised as a last resort and should be used sparingly when
there is grave miscarriage of justice in the light of illegality,
irregularity, incompetence or any other defect which cannot
be cured at an appellate stage. The appellate Court should be
very cautious and exercise the discretion judiciously while
remanding the matter for de novo trial.
60.6. While examining the nature of the trial conducted by
the Trial Court for the purpose of determining whether it was
summary trial or summons trial, the primary and
predominant test to be adopted by the Appellate Court
should be whether it was only the substance of the evidence
that was recorded or whether the complete record of the
deposition of the witness in their chief examination, cross
examination and reexamination in verbatim was faithfully
placed on record. The Appellate Court has to go through each
and every minute detail of the trial Court record and then
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examine the same independently and thoroughly to reach at
a just and reasonable conclusion."
7. It is pertinent to note, that in the present case the
complainant examined two witnesses, who were crossexamined at
length by the respondent’s counsel. Thereafter, the statement of the
respondentaccused under section 313 of Criminal Procedure Code was
recorded, after which, the respondentaccused led the evidence of three
witnesses, who were also crossexamined by the petitioner’s counsel. It
also appears that thereafter, the complainant examined another witness
by the name Harish Khandelwal, who was also crossexamined by the
respondent’s counsel. It appears that the learned Magistrate however
failed to record the statement of the respondentaccused under section
313 of Criminal Procedure Code again, after Harish Khandelwal was
examined. The learned Magistrate thereafter heard the parties and vide
judgment and order dated 04/09/2008 was pleased to convict the
respondentaccused for the offence punishable under section 138 of
Negotiable Instruments Act and sentenced him to suffer rigorous
imprisonment for six months. The respondentaccused was also directed
to pay compensation of Rs.1,25,000/ to the petitioner. The said
judgment and order of conviction was challenged by the respondent
accused in appeal. The learned Sessions Judge, Amravati, after hearing
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the parties was pleased to set aside the judgment and order of
conviction passed by the trial Court and remanded the matter back to
the trial Court for de novo trial, in view of the Apex Court judgment in
Nitinbhai's case.
8. The learned Sessions Judge, Amravati failed to consider
the manner in which evidence was recored in the present case i.e. it was
like evidence recorded in a regular summons case and not as in a
summary case. The present case had all the trappings of a regular case.
In the light of what is discussed herein above, the finding of the
Appellate Court directing de novo trial was unjustified.
9. However, it is a matter of record, that the trial Court had
failed to record the statement of the respondentaccused under section
313 of the Code, after the evidence of Harish Khandelwal was recorded
and the learned Judge after hearing the parties, proceeded to convict
and sentence the respondentaccused as aforesaid. It appears that the
said defect was brought to the notice of the Appellate Court, as a result
of which the Appellate Court has also observed, that the mandatory
provision was not complied with, and therefore also set aside the
judgment and order of conviction and sentence on this count and
remitted the matter to the trial Court. Admittedly, the statement of the
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respondentaccused under section 313 of the Code was recorded after
the first two witnesses of the complainant were examined and cross
examined. However, when the third witness i.e. Harish Khandelwal
was examined by the petitionercomplainant, which was after recording
of the evidence of respondent's three witnesses, admittedly, no
questions were put by the trial Court to the respondentaccused, after
Harish Khandelwal was examined, as mandated under section 313 of
the Code. Thus, the impugned order, in so much as, it quashes and sets
aside the judgment and order of conviction and sentence dated
04/09/2008 passed by the trial Court and remits the matter to the trial
Court is upheld; whereas the direction to conduct de novo trial is
quashed and set aside. It is made clear, that the learned Judicial
Magistrate First Class, Court No.6, Amravati is not required to conduct
the case afresh or conduct a de novo trial.
10. In this light of the matter, the petition is partly allowed on
the following terms and conditions:
(i) The judgment and order dated 05/11/2012 passed by the
learned Sessions Judge, Amravati in Criminal Appeal No.123 of 2001 in
so much as it directs de novo trial is quashed and set aside.
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(ii) The learned Judicial Magistrate First Class, Court No.6,
Amravati to record the statement of the respondentaccused under
section 313 of Criminal Procedure Code, on the basis of the evidence of
Harish Khandelwal and after recording the same, the trial Court shall
rehear the parties and thereafter pass appropriate orders.
(iii) Both the parties shall appear before the trial Court on
30/11/2017 at 10.30 a.m.
(iv) The learned Magistrate shall complete the said process as
expeditiously as possible and in any event within three months from
30/11/2017.
Rule is made absolute in the aforesaid terms. There shall
be no order as to costs.
11. All the parties to act on the authenticated copy of this
judgment.
JUDGE
KHUNTE
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 630 OF 2012
PETITIONER : Sou. Kanta W/o. Harish Khandelwal, Aged
about 48 years, Occ. Household, R/o.
Nawahate Plot, Badnera Road, Amravati
through Power of Attorney Shri Harish
Shankarlal Khandelwal, R/o. Nawahate Plot,
Badnera Road, Amravati, District Amravati.
...VERSUS...
RESPONDENT : Mudatsar Ali Mujjafar Ali, Aged about 34
years, Occ. Business, R/o. ChilamChawani,
Camp Amravati, Tq. And Distt. Amravati.
Mr.Amit Kukday, counsel for the petitioner.
None for the respondent.
CORAM : SMT. REVATI MOHITEDERE, J.
DATED : 07.11.2017
O R A L J U D G M E N T
Heard learned counsel for the petitioner. None appeared
for the respondent on 06/10/2017 as well as on 30/10/2017. Even
today none appears for the respondent.
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2. By this petition, the petitioner has impugned the judgment
and order dated 05/11/2012 passed in Criminal Appeal No. 123 of
2008 by the learned Sessions Judge, Amravati, by which the judgment
and order of conviction and sentence passed by the learned Judicial
Magistrate First Class, Court No.6, Amravati in Summary Criminal Case
No.1412 of 2007, dated 04/09/2008 was quashed and set aside and the
matter was remanded back to the trial Court, for fresh trial.
3. Learned counsel for the petitioner submits that there was
no justification for the Appellate Court to remit the matter back to the
trial Court, for a de novo trial. He submits that the 138 case in
substance was tried as a summons case and not as a summary case, and
hence the question of a de novo trial did not arise. Learned counsel
relied on the following judgments:
J.V. Baharuni and another v. State of Gujarat and another reported
in 2014(4) Mh.L.J. 192 ; Sukhdeo Ganeshram Tardeja v. Rajesh
Dayaram Sadhwani and another reported in 2016(2) Mh.L.J. 113 ;
Shivaji Sampat Jagtap v. Rajan Hiralal Arora and anr. reported in
2006 ALL MR (Cri) 2612; and unreported judgments i.e. M/s. Indo
Rama Synthetics (I) Ltd. v. M/s. HRK Infra & Oils and others) passed in
Criminal Application (APL) No.671 of 2011 and (Dinesh Thacker v.
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State of Maharashtra and another) passed in Writ Petition No.3745 of
2011, to substantiate his submissions.
4. Perused the papers and the impugned judgment and order
dated 05/11/2012 with the assistance of the learned counsel for the
petitioner. On 28/03/2007, the petitioner (original complainant) filed
a complaint in the Court of the learned Judicial Magistrate First Class,
Court No.6, Amravati, which was numbered as Summary Criminal case
No.1412 of 2007. The learned Magistrate was pleased to issue process
against the respondent, pursuant to which, the respondent appeared
before the trial Court. The petitioner led the evidence of two witnesses
and closed his evidence. Thereafter, the statement of the respondent
accused under section 313 of Criminal Procedure Code was recorded.
The respondentaccused in his defence examined three witnesses, who
were also crossexamined by the counsel for the petitioner. Thereafter,
the petitioner (original complainant) examined another witness i.e. his
third witness namely, Shri Harish Shankarlal Khandelwal. The said
witness was also crossexamined by the counsel for the respondent
accused. It however appears, that no questions were put to the
respondentaccused under section 313 of Criminal Procedure Code,
after the said witness, Harish Khandelwal was examined by the
petitionercomplainant. The said fact is also not disputed by the learned
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counsel for the petitioner.
5. The submission advanced by the learned counsel for the
petitioner that the Appellate Court had erred in remanding the matter
back to the trial Court for a fresh trial/ de novo trial will have to be
accepted, in view of the settled position of law. A perusal of the
impugned judgment and order dated 05/11/2012 passed by the learned
Sessions Judge, Amravati, shows that reliance placed by the said Court
on the judgment in the case of Nitinbhai Saevatilal Shah and another
v. Manubhai Manjibhai Panchal and another , reported in (2011) 3
SCC (Cri) 788 was clearly misconceived in the facts. In the case of
Nitinbhai Saevatilal Shah ( supra ), the Apex Court was dealing with a
case, which was tried 'summarily'.
6. It is pertinent to note, that the Apex Court subsequently in
the case of J.V. Baharuni (supra) has observed as under :
“30. In Nitinbhai we find that the entire case was tried
'summarily' and the Magistrate who issued process, was
transferred after recording the evidence. The succeeding
Magistrate delivered the judgment basing upon the memo
filed by the parties declaring that they had no objection to
proceed with the matter on the basis of evidence recorded by
his predecessor. Ultimately, this Court remanded the matter
to the Trial Court for de novo trial opining that no amount
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of consent by the parties can confer jurisdiction on a Court of
law, where there exists none, nor can they divest a Court of
jurisdiction which it possesses under the law.
31. Coming to the facts of the present cases, on scrutiny of
record available in SLP (Cri) No. 5623 of 2012, we found
that there has been in total 82 hearings spread over five
years. Out of 82 hearings, 67 hearings were done by Jt. C.J.
(J.D.) and J.M.F.C., Veraval. The Magistrate was transferred
on 2422005 and was replaced by J.M.F.C., Veraval who
heard the case for 14 more times and delivered judgment on
th
15 hearing i.e. on 1292005. Thus by any stretch of
imagination, the trial which extended over five years and
was decided in over 82 hearings with elaborate cross
examination, deposition and all trappings of regular trial
cannot simply be termed as "summary trial".
32. On perusal of record of other two cases (SLP (Cri.) Nos.
3332 of 2012 and 734 of 2013), we found the similar
th
situation. The Complaint was taken up on 20 August, 2001
th
and the Trial Court decided the criminal case on 30 May,
2009 declaring the accused Appellants as innocent, after
conducting about 132 hearings. It is also evident from the
record that in SLP(Cri) No. 734 of 2013, the criminal
proceedings under the N.I. Act were initiated in December,
1998 before the Trial Court which came to be concluded by
th
the judgment of the Metropolitan Magistrate on 7 August,
2009. Thus, during the period of about 11 years a total of
103 hearings took place and a detailed trial procedure had
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been followed. Going thereby, prima facie, it is difficult for us
to accept that the case was tried summarily.
33. Moreover, these cases were decided by the same judge in
the High Court and there seems to be a mechanical
application of Nitinbhai without discerning the difference on
facts of Nithinbhai and the present cases. In Nitinbhai, the
case was established as being decided 'summarily' whereas in
the present cases, no such independent inquiry has been
undertaken by the High Court to arrive at a just conclusion
whether the cases were tried "summarily" or in a "regular
way".
34. Be that as it may, to satisfy ourselves we have carefully
gone through the records of the Trial Court as well as the
High Court in each matter before us. There is no doubt, as
per the record, learned Magistrate has not specifically
mentioned that the trial was conducted as summons case or
summary case. Though in the record of SLP (Cri) No.734 of
2013, at some places the word 'summary' was mentioned as
regards to the nature of proceedings of the case, having given
our anxious and thorough consideration, we found that the
word 'summary' used therein was with reference to Chapter
XXII of Code of Criminal Procedure, 1882 and it does not
relate to the 'summary trial' envisaged under section 143, of
the N.I. Act. Pertinently, before the Trial Court the Suit No.
4457 of 2001 has been referred at some places as 'Summary
Suit' and at some other places it has been referred as 'Civil
Suit'. Similarly, the case number 5294 of 1998 has been
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shown at some places as Summary Case and at some other
places it was shown as Criminal Case. After a careful
examination of the record, we came to the conclusion that
the word 'summary' used at some places was with reference
to summary trials prescribed under Code of Criminal
Procedure Needless to say that the summary trial as
preferred mode of trial in the matters related to negotiable
instruments was inserted by the Amendment Act, 2002 only
th
w.e.f. 6 February, 2003.
35 & 36 …
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 crossexamine, 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 and Anr . 1999(6)
ALD 279].
38 to 56. …..
57. A de novo trial should be the last resort and that too
only when such a course becomes so desperately
indispensable. It should be limited to the extreme exigency to
avert "a failure of justice". Any omission or even the illegality
in the procedure which does not affect the core of the case is
not a ground for ordering a de novo trial. This is because the
appellate Court has got the plenary powers to revaluate and
reappraise the evidence and to take additional evidence on
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record or to direct such additional evidence to be collected by
the trial Court. But to replay the whole laborious exercise
after erasing the bulky records relating to the earlier
proceedings by bringing down all the persons to the Court
once again for repeating the whole depositions would be a
sheer waste of time, energy and costs unless there is
miscarriage of justice otherwise. Hence the said course can be
resorted to when it becomes imperative for the purpose of
averting "failure of justice". The superior Court which orders
a de novo trial cannot afford to overlook the realities and the
serious impact on the pending cases in trial Courts which are
crammed with dockets, and how much that order would
inflict hardship on many innocent persons who once took all
the trouble to reach the Court and deposed their versions in
the very same case. The reenactment of the whole labour
might give the impression to the litigant and the common
man that law is more pedantic than pragmatic. Law is not
an instrument to be used for inflicting sufferings on the
people but for the process of justice dispensation [See State of
M.P. vs. Bhooraji (2001) 7 SCC 679].
58. Thus, in summation, we are of the considered opinion
that the exercise of remitting the matter to Trial Court for de
novo trial should be done only when the appellate Court is
satisfied after thorough scrutiny of records and then
recording reason for the same that the trial is not summons
trial but summary trial. The nonexhaustive list which may
indicate the difference between both modes of trial is framing
of charges, recording of statement Under section 313 of the
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Code, whether trial has been done in the manner prescribed
under sections 262265 of Code of Criminal Procedure, how
elaborately evidence has been adduced and taken on record,
the length of trial etc. In summary trial, the accused is
summoned, his plea is recorded under section 263(g) of Code
of Criminal Procedure and finding thereof is given by the
Magistrate under section 263(h) of Code of Criminal
Procedure of his examination.
59. ….
60 to 60.4.….
60.5 Remitting the matter for de novo trial should be
exercised as a last resort and should be used sparingly when
there is grave miscarriage of justice in the light of illegality,
irregularity, incompetence or any other defect which cannot
be cured at an appellate stage. The appellate Court should be
very cautious and exercise the discretion judiciously while
remanding the matter for de novo trial.
60.6. While examining the nature of the trial conducted by
the Trial Court for the purpose of determining whether it was
summary trial or summons trial, the primary and
predominant test to be adopted by the Appellate Court
should be whether it was only the substance of the evidence
that was recorded or whether the complete record of the
deposition of the witness in their chief examination, cross
examination and reexamination in verbatim was faithfully
placed on record. The Appellate Court has to go through each
and every minute detail of the trial Court record and then
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examine the same independently and thoroughly to reach at
a just and reasonable conclusion."
7. It is pertinent to note, that in the present case the
complainant examined two witnesses, who were crossexamined at
length by the respondent’s counsel. Thereafter, the statement of the
respondentaccused under section 313 of Criminal Procedure Code was
recorded, after which, the respondentaccused led the evidence of three
witnesses, who were also crossexamined by the petitioner’s counsel. It
also appears that thereafter, the complainant examined another witness
by the name Harish Khandelwal, who was also crossexamined by the
respondent’s counsel. It appears that the learned Magistrate however
failed to record the statement of the respondentaccused under section
313 of Criminal Procedure Code again, after Harish Khandelwal was
examined. The learned Magistrate thereafter heard the parties and vide
judgment and order dated 04/09/2008 was pleased to convict the
respondentaccused for the offence punishable under section 138 of
Negotiable Instruments Act and sentenced him to suffer rigorous
imprisonment for six months. The respondentaccused was also directed
to pay compensation of Rs.1,25,000/ to the petitioner. The said
judgment and order of conviction was challenged by the respondent
accused in appeal. The learned Sessions Judge, Amravati, after hearing
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the parties was pleased to set aside the judgment and order of
conviction passed by the trial Court and remanded the matter back to
the trial Court for de novo trial, in view of the Apex Court judgment in
Nitinbhai's case.
8. The learned Sessions Judge, Amravati failed to consider
the manner in which evidence was recored in the present case i.e. it was
like evidence recorded in a regular summons case and not as in a
summary case. The present case had all the trappings of a regular case.
In the light of what is discussed herein above, the finding of the
Appellate Court directing de novo trial was unjustified.
9. However, it is a matter of record, that the trial Court had
failed to record the statement of the respondentaccused under section
313 of the Code, after the evidence of Harish Khandelwal was recorded
and the learned Judge after hearing the parties, proceeded to convict
and sentence the respondentaccused as aforesaid. It appears that the
said defect was brought to the notice of the Appellate Court, as a result
of which the Appellate Court has also observed, that the mandatory
provision was not complied with, and therefore also set aside the
judgment and order of conviction and sentence on this count and
remitted the matter to the trial Court. Admittedly, the statement of the
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711WP630.12Judgment 12/13
respondentaccused under section 313 of the Code was recorded after
the first two witnesses of the complainant were examined and cross
examined. However, when the third witness i.e. Harish Khandelwal
was examined by the petitionercomplainant, which was after recording
of the evidence of respondent's three witnesses, admittedly, no
questions were put by the trial Court to the respondentaccused, after
Harish Khandelwal was examined, as mandated under section 313 of
the Code. Thus, the impugned order, in so much as, it quashes and sets
aside the judgment and order of conviction and sentence dated
04/09/2008 passed by the trial Court and remits the matter to the trial
Court is upheld; whereas the direction to conduct de novo trial is
quashed and set aside. It is made clear, that the learned Judicial
Magistrate First Class, Court No.6, Amravati is not required to conduct
the case afresh or conduct a de novo trial.
10. In this light of the matter, the petition is partly allowed on
the following terms and conditions:
(i) The judgment and order dated 05/11/2012 passed by the
learned Sessions Judge, Amravati in Criminal Appeal No.123 of 2001 in
so much as it directs de novo trial is quashed and set aside.
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711WP630.12Judgment 13/13
(ii) The learned Judicial Magistrate First Class, Court No.6,
Amravati to record the statement of the respondentaccused under
section 313 of Criminal Procedure Code, on the basis of the evidence of
Harish Khandelwal and after recording the same, the trial Court shall
rehear the parties and thereafter pass appropriate orders.
(iii) Both the parties shall appear before the trial Court on
30/11/2017 at 10.30 a.m.
(iv) The learned Magistrate shall complete the said process as
expeditiously as possible and in any event within three months from
30/11/2017.
Rule is made absolute in the aforesaid terms. There shall
be no order as to costs.
11. All the parties to act on the authenticated copy of this
judgment.
JUDGE
KHUNTE
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