Case Note & Summary
This group of matters involves a common legal question regarding the requirement of a de novo trial in proceedings under Section 138 of the Negotiable Instruments Act, 1881, when the presiding judge who recorded the earlier evidence is transferred. The petitioner, Shyambahadur Purshottam Sharma, faced prosecution in two cases: C.C.No.6060/SS/2006 initiated by Sudhakar Poojary and C.C.No.6059/SS/2006 initiated by Bhupen Gala. The trial court convicted the petitioner, and the appeals were dismissed by the Additional Sessions Judge on 6th September 2011, who modified the sentence by enhancing the compensation amount. In C.C.No.6059/SS/2006, the cheque amount was Rs.1,38,000/- and compensation was enhanced to Rs.2,76,000/-. In C.C.No.6060/SS/2006, the cheque amount was Rs.1,24,000/- and compensation was enhanced to Rs.2,48,000/-. The petitioner argued that he is a barber and had no reason to receive such large amounts. The court also considered Criminal Applications under Section 482 of the Code of Criminal Procedure, 1973, filed by Deepak Sevantilal Javeri against M/s. Alpha Exports. The court heard all matters together and reserved judgment on 22nd August 2013, pronouncing it on 23rd August 2013. The court held that the successor judge has discretion to proceed from the stage of transfer but must ensure no prejudice to the accused, and may recall witnesses if necessary for a fair trial.
Headnote
A) Criminal Procedure - De Novo Trial - Transfer of Judge - Section 138 Negotiable Instruments Act, 1881 - The court considered whether a de novo trial is mandatory when the judge who recorded evidence is transferred. The court held that the successor judge has discretion to proceed from the stage of transfer, but must ensure that the accused is not prejudiced. The court may recall witnesses if necessary for a fair trial. (Paras 2-5)
Issue of Consideration
Whether a de novo trial is required in proceedings under Section 138 of the Negotiable Instruments Act, 1881, when the presiding judge who recorded evidence is transferred.
Final Decision
The court held that the successor judge has discretion to proceed from the stage of transfer but must ensure no prejudice to the accused. The court may recall witnesses if necessary for a fair trial. The matters were disposed of with directions to the trial court to consider the issue of de novo trial afresh.
Law Points
- De novo trial
- Section 138 Negotiable Instruments Act
- 1881
- Transfer of presiding judge
- Criminal Procedure Code
- 1973
Case Details
Criminal Writ Petition No.3739 of 2011, 3740 of 2011, 3741 of 2011, 3742 of 2011, Criminal Application u/Sec.482 No.23 of 2013, Criminal Application u/Sec.482 No.24 of 2013
Mr. Niranjan Mundargi @ Mr. H.H. Nagi, Mr. Ashish Mehta @ Mr. Mehul A. Rathod, Mr. Jatin P. Shah, Mr. Hemant Jain, Mr. A.R. Patil, Mr. Murtaza Najmi
Shyambahadur Purshottam Sharma
Sudhakar Narshu Poojary, Bhupen Tokarshi Gala, State of Maharashtra
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Nature of Litigation
Criminal writ petitions and applications under Section 482 CrPC challenging conviction and sentence under Section 138 NI Act, and seeking de novo trial due to transfer of presiding judge.
Remedy Sought
Petitioner sought quashing of conviction and sentence, or in the alternative, a de novo trial on the ground that the judge who recorded evidence was transferred.
Filing Reason
The petitioner was convicted under Section 138 NI Act for dishonour of cheques. The appeals were dismissed and compensation was enhanced. The petitioner challenges the conviction and also raises the issue of de novo trial due to transfer of the presiding judge.
Previous Decisions
Trial court convicted the petitioner. Additional Sessions Judge dismissed appeals and enhanced compensation on 6th September 2011.
Issues
Whether a de novo trial is required in proceedings under Section 138 NI Act when the presiding judge who recorded evidence is transferred.
Whether the conviction and sentence of the petitioner are sustainable on facts.
Submissions/Arguments
Mr. Mundargi argued that the petitioner is a barber and had no reason to receive large sums of money; the account was closed in 2000.
The petitioner argued that the trial was vitiated because the judge who recorded evidence was transferred and the successor judge did not conduct a de novo trial.
Ratio Decidendi
In proceedings under Section 138 NI Act, when the presiding judge who recorded evidence is transferred, the successor judge is not mandatorily required to conduct a de novo trial. However, the successor judge must exercise discretion to ensure a fair trial and may recall witnesses if the accused is prejudiced.
Judgment Excerpts
These group of matters are heard together as a common question for denovo trial in proceedings under Section 138 of Negotiable Instruments Act, owing to transfer of one Judge recording earlier evidence, is to be addressed.
Mr.Niranjan Mundargi, learned Counsel, says that petitioner in both the matters is a barber. He had no reason and occasion to receive amount in the sum of Rs.1,24,000/- or Rs.1,38,000/- on 25.10.2005 from two persons.
Procedural History
The petitioner was prosecuted in C.C.No.6060/SS/2006 and C.C.No.6059/SS/2006. Trial court convicted. Appeals were dismissed and compensation enhanced by Additional Sessions Judge on 6th September 2011. Petitioner filed writ petitions in the High Court. Criminal applications under Section 482 CrPC were also filed by Deepak Sevantilal Javeri. All matters were heard together.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
- Code of Criminal Procedure, 1973: 482
