Case Note & Summary
The applicant, Roopchand Daryanomal Jani, was the complainant in Summary Case No. 4271/2008 pending before the 23rd J.M.F.C. & Spl Court for offences under Section 138 of the Negotiable Instruments Act, 1881, at Nagpur. The case was initiated on the accusation that the non-applicant no.1, Sanjay Tarachand Hardwani, had committed an offence under Section 138 of the NI Act by failing to pay the demanded amount after a cheque issued by him was dishonoured. The applicant sought quashing of the order dated 16.12.2011 passed by the trial court ordering de novo trial. The applicant's counsel, Mr. D. N. Dani, submitted that from the commencement, the case was not proceeded in the summary manner. The first presiding officer, after explaining the accusation and recording a plea of not guilty, recorded evidence by taking on record an affidavit and cross-examination. The successor officer similarly recorded evidence of two more witnesses. When the matter was fixed for defence evidence, the non-applicant no.1 applied for referring a disputed document to a handwriting expert. The third presiding officer, relying on the Supreme Court decision in Nitinbhai Saevatilal Shah & Anr. v. Manubhai Manjibhai Panchal & Anr., AIR 2011 SC 3076, passed the impugned order for de novo trial. The applicant contended that since the case was never tried as a summary case, the trial court misconstrued the ratio of Nitinbhai's case. The High Court, per P. D. Kode, J., held that the trial court erred in ordering de novo trial because the case had not been conducted as a summary trial. The impugned order was quashed and set aside, and the trial court was directed to proceed with the case from the stage it was at before the impugned order.
Headnote
A) Criminal Procedure - De Novo Trial - Summary Trial - Section 143 Negotiable Instruments Act, 1881 - The trial court ordered de novo trial on the ground that the case was not tried as a summary case, relying on Nitinbhai Saevatilal Shah & Anr. v. Manubhai Manjibhai Panchal & Anr. - The High Court held that since the trial was not conducted as a summary case, the ratio of Nitinbhai's case did not apply, and ordering de novo trial was erroneous - The impugned order was quashed (Paras 2-5).
Issue of Consideration
Whether the trial court was justified in ordering de novo trial in a complaint under Section 138 of the Negotiable Instruments Act, 1881, on the ground that the case was not tried as a summary case.
Final Decision
The impugned order dated 16.12.2011 passed by the 23rd J.M.F.C. & Spl Court for offences under Section 138 N.I. Act, Nagpur, in Summary Case No. 4271/2008 is quashed and set aside. The trial court is directed to proceed with the case from the stage it was at before the impugned order.
Law Points
- De novo trial not warranted when trial was not conducted as summary case
- Nitinbhai Saevatilal Shah case distinguished
- Section 138 Negotiable Instruments Act
- 1881
- Section 143 Negotiable Instruments Act
