Case Note & Summary
The petitioner, original complainant in a complaint under Section 138 of the Negotiable Instruments Act, 1881, challenged the judgment of the Sessions Judge, Amravati dated 05/11/2012. The Sessions Judge had set aside the conviction and sentence imposed by the Judicial Magistrate First Class, Court No.6, Amravati in Summary Criminal Case No.1412 of 2007 and remanded the matter for de novo trial. The petitioner argued that the trial was in substance conducted as a summons case, not a summary case, and therefore no de novo trial was required. The High Court examined the record and found that the trial court had issued process, recorded evidence of two complainant witnesses, recorded statement of accused under Section 313 CrPC, allowed defence to examine three witnesses who were cross-examined, and then permitted the complainant to examine a third witness. The High Court held that the trial was conducted as a summons case in substance, with full opportunity to both parties, and no prejudice was caused to the accused. The appellate court's order for de novo trial was set aside, and the matter was remanded to the appellate court for fresh decision on merits in accordance with law.
Headnote
A) Criminal Procedure - De novo trial - Summary trial vs. Summons case - Section 143 of Negotiable Instruments Act, 1881 read with Section 326 of Criminal Procedure Code, 1973 - The appellate court set aside conviction and remanded for de novo trial on the ground that the case was tried as a summary case. However, the High Court found that the trial was in substance conducted as a summons case, with full recording of evidence and cross-examination. Held that no prejudice was caused to the accused and de novo trial was unwarranted. (Paras 2-6)
B) Negotiable Instruments Act - Summary trial - Section 143 - Procedure - The trial court had issued process, recorded evidence of complainant's witnesses, recorded statement under Section 313 CrPC, and allowed defence evidence. The High Court noted that the trial was not summary in substance as the evidence was recorded in full. Held that the appellate court erred in ordering de novo trial. (Paras 4-6)
Issue of Consideration
Whether the appellate court was justified in remanding the matter for de novo trial on the ground that the trial was conducted as a summary case instead of a summons case, when in substance the trial followed summons case procedure.
Final Decision
The High Court allowed the petition, quashed the appellate court's order dated 05/11/2012, and remanded the matter to the appellate court for fresh decision on merits in accordance with law, without ordering de novo trial.
Law Points
- Summary trial under Section 143 of Negotiable Instruments Act
- 1881
- De novo trial
- Summons case procedure
- Section 326 of Criminal Procedure Code
- 1973
Case Details
2017 LawText (BOM) (11) 181
Criminal Writ Petition No. 630 of 2012
Smt. Revati Mohitedere, J.
Mr. Amit Kukday for the petitioner; None for the respondent
Sou. Kanta W/o. Harish Khandelwal
Mudatsar Ali Mujjafar Ali
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Nature of Litigation
Criminal writ petition challenging appellate court's order of remand for de novo trial in a complaint under Section 138 of Negotiable Instruments Act, 1881.
Remedy Sought
Petitioner sought quashing of the appellate court's judgment dated 05/11/2012 which set aside conviction and remanded for de novo trial.
Filing Reason
The appellate court remanded the matter for de novo trial on the ground that the trial was conducted as a summary case, whereas the petitioner contended that the trial was in substance a summons case.
Previous Decisions
Trial court convicted the respondent on 04/09/2008 in Summary Criminal Case No.1412 of 2007. Appellate court set aside conviction and remanded for de novo trial on 05/11/2012.
Issues
Whether the appellate court was justified in ordering de novo trial when the trial was conducted as a summons case in substance.
Whether the trial procedure under Section 143 of NI Act was followed correctly.
Submissions/Arguments
Petitioner argued that the trial was in substance a summons case, not a summary case, as evidence was fully recorded and cross-examination conducted, and therefore no de novo trial was required.
Petitioner relied on judgments including J.V. Baharuni v. State of Gujarat and Sukhdeo Tardeja v. Rajesh Sadhwani to support that de novo trial is not warranted when no prejudice is caused.
Ratio Decidendi
When a trial under Section 138 of NI Act is conducted in substance as a summons case with full recording of evidence and opportunity to both parties, the mere fact that it was numbered as a summary case does not warrant a de novo trial, especially when no prejudice is caused to the accused. The appellate court should decide the appeal on merits without remanding for fresh trial.
Judgment Excerpts
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.
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.
Procedural History
On 28/03/2007, petitioner filed complaint under Section 138 NI Act before JMFC, Amravati (Summary Criminal Case No.1412/2007). Trial court convicted respondent on 04/09/2008. Respondent appealed (Criminal Appeal No.123/2008) before Sessions Judge, Amravati, who on 05/11/2012 set aside conviction and remanded for de novo trial. Petitioner filed Criminal Writ Petition No.630/2012 before Bombay High Court, Nagpur Bench, which was allowed on 07/11/2017.
Acts & Sections
- Negotiable Instruments Act, 1881: 138, 143
- Code of Criminal Procedure, 1973 (CrPC): 313, 326
