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2010 DIGILAW 2744 (PNJ)

Shashi Bala Tyagi v. Satya Narayan Sharma

2010-09-24

RAM CHAND GUPTA

body2010
Judgment Ram Chand Gupta, J. 1. The present revision petition has been filed under Section 397 read with Section 401 Cr.P.C. against order dated 4.11.2009 passed by learned Additional Sessions Judge, Faridabad, in an appeal, against judgment of conviction dated 2.3.2009 and order of sentence dated 3.3.2009 passed by the court of learned Chief Judicial Magistrate, Faridabad, vide which the present revision petitioner was convicted for offence under Section 138 of the Negotiable Instrument Act (hereinafter to be referred as the `Act) and was sentenced to undergo rigorous imprisonment for a period of six months and to pay an amount of Rs. 2,00,000/- as a compensation, vide which judgment of conviction and order of sentence passed by learned trial Court was set aside and the case was remanded to learned trial Court for recording the statement of accused under Section 313 Cr.P.C. in accordance with law and to proceed thereafter in accordance with law. 2. I have heard learned counsel for the parties and have gone through the whole record carefully. 3. Briefly stated, the respondent-complainant Satya Narayan Sharma had filed a complaint under Section 138 of the Act against the present revision -petitioner on the brief allegations that complainant was having friendly relationship with husband of accused, who is proprietor of M/s. Sai Travels. Accused had borrowed Rs. 2,65,000/- from the complainant on 20.11.2004 in the presence of witnesses for smooth running of her business. Accused had promised to return the said amount by August 2005. Accordingly a post dated cheque bearing No. 189268 dated 1.9.2005 for Rs. 2,65,000/- drawn on Indian Overseas Bank, NIT, Faridabad, was issued on 1.9.2005. Complainant requested for return of money. However, accused made a request that he should not put up the cheque for encashment upto 10.9.2005. Later on the cheque was presented by complainant to his banker and however, the same was returned vide memo dated 15.9.2005 with remarks `Funds insufficient. The cheque was received unpaid on 17.9.2005 by the complainant. Complainant served notice dated 6.10.2005 which was duly received by the accused vide acknowledgment receipt on 8.10.2005. She had also given reply dated 22.10.2005 through her counsel denying that she is proprietor of Sai Travels and also factum of taking loan from the complainant. Rather she had taken the stand that her husband had taken loan of Rs. 1,30,000/- and blank cheque was issued as a security. She had also given reply dated 22.10.2005 through her counsel denying that she is proprietor of Sai Travels and also factum of taking loan from the complainant. Rather she had taken the stand that her husband had taken loan of Rs. 1,30,000/- and blank cheque was issued as a security. After recording preliminary evidence, revision-petitioner was summoned to face trial and notice of accusation under Section 138 of the Act was served upon her, to which she did not plead guilty and claimed trial. 4. Complainant appeared as his own witness as PW 1 and filed affidavit Ex. PW 1/A, wherein he reiterated the version as stated in the complaint. He also produced all the records, i.e., Cheque Ex. A1, Return Memo Ex. A2, Regd. Notice, Ex. A3, registered receipt Ex. A4, Acknowledgment Ex. A5 and reply Ex. A6. Accused was also examined under Section 313 Cr.P.C. Accused closed her defence evidence after tendering documents Ex. D1, i.e., order dated 13.6.2008 in case titled as State v. Raj Bahadur Tyagi, and Ex. D2, final report under Section 173 Cr.P.C. in FIR No. 26, dated 25.1.2006. 5. After hearing counsel for both the parties, learned trial Court concluded that the complainant had succeeded in proving his case and hence convicted the accused for offence punishable under Section 138 of the Act and she was sentenced to undergo rigorous imprisonment for a period of six months and to pay compensation of Rs. 2,00,000/-. 6. It was urged before learned Appellate Court that statement of accused under Section 313 Cr.P.C. has not been recorded as per law and that entire case of complainant was not put to the accused. Learned Appellate Court came to the conclusion that the basic ingredients of the offence were not put to the accused in the statement and hence while setting aside the judgment of conviction and order of sentence imposed upon revision petitioner-accused, case was remanded to learned trial Court to proceed further from the stage of recording of statement of accused under Section 313 Cr.P.C., as per law. 7. 7. It has been contended by learned counsel for the revision petitioner- accused that a serious prejudice has been caused to the petitioner on account of the impugned order passed by learned appellate Court remanding the case and directing recording of the statement of accused under Section 313 Cr.P.C., as per law afresh and that rather learned appellate court should have acquitted the revision petitioner-accused on account of non-compliance of mandatory provisions of law. 8. He has also placed reliance upon Lattu Mahto and another v. The State of Bihar (now Jharkhand), 2008(3) RCR (Criminal 467, wherein it has been observed that a circumstance about which the accused was not asked to explain cannot be used against him. On the same point, reliance has also been placed upon Inspector of Customs, Akhnoor J & K v. Yash Pal, 2009(2) RCR (Criminal) 514. 9. On the other hand, it has been contended by learned counsel for the complainant-respondent that learned Appellate Court was within its power to remand the case from the stage of recording of statement of accused under Section 313 Cr.P.C and that it cannot be said that any prejudice has been caused to the revision-petitioner-accused. 10. Section 386 Cr.P.C. deals with power of the appellate Court, which reads as under :- "386. 10. Section 386 Cr.P.C. deals with power of the appellate Court, which reads as under :- "386. Powers of the appellate Court.-After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may - (a) In an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law; (b) In an appeal from a conviction- (i) Reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a court of competent jurisdiction subordinate to such appellate Court or committed for trial, or (ii) Alter the finding, maintaining the sentence, or (iii) With or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same; (c) In an appeal for enhancement of sentence - (i) Reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a court competent to try the offence,- or (ii) Alter the finding maintaining the sentence, or (iii) With or without altering the finding, after the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same; (d) In an appeal from any other order, alter or reverse such order; (e) Make any amendment or any consequential or incidental order that may be just or proper. Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement: Provided further that the Appellate Court shall not inflict greater punishment for the offence, which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal." 11. Hence, as per sub Clause (b)(i) of Section 386 Cr.P.C., appellate Court is having power to order for retrial of the case by a Court of competent jurisdiction subordinate to such appellate Court. 12. The point as to whether the appellate Court is having power to remand the case for re-trial to trial Court in case statement of accused was not recorded in legal manner was settled by Full Bench of this Court in Dara Singh and another v. The State, AIR 1952 P&H 214, operative part of which reads as under :- "23. I may now briefly sum up my conclusions. My answer to the question proposed is that it is within the powers of the High Court to examine and further examine the convicts and that the law does not place any restrictions upon this power. But if the High Court is of the opinion whether before or after examining the convicts that non-compliance with the provisions of Section 342, Criminal Procedure Code, has occasioned or is likely to have occasioned prejudice to the convicts the High Court will order a fresh trial. If, on the other hand, it comes to the conclusion that no such prejudice was caused and no failure of justice was occasioned the appeal will be heard and decided upon merits. With regard to the order of remand this may contain a direction that the trial will proceed from the point where the irregularity occurred or a totally fresh trial may be ordered depending on the facts of that particular case. For instance, if the trial Judge has been transferred a `de novo trial will be ordered. On the other hand in some cases the same Sessions Judge may be asked to re-examine the accused and to dispose of the case without holding a completely new trial." 13. Hence, if all relevant questions were not put to accused by the Court, appellate Court is having power to remand the case to examine the accused again under Section 313 Cr.P.C. and the order for remanding the case again and for re-decision of the case from that stage is a valid one and it cannot be said that the same amounts to filling lacuna in the prosecution case. It is the duty of learned Magistrate and not the prosecution to put all relevant questions to the accused and if there is lapse on the part of the Magistrate, prosecution cannot be blamed. 14. In Ganeshmal Jashraj v. Government of Gujarat and another, 1980 AIR (SC) 264, after closure of evidence of the prosecution and examination of accused under Section 313 Cr.P.C., accused was convicted on his plea of guilt recorded, however, case was remanded to trial Court to proceed afresh from the stage of examination under section 313 Cr.P.C. by Honble Apex Court. 15. In Asraf Ali v. State of Assam, 2008(3) RCR (Criminal) 835, Honble Apex Court has examined the scope and object of examination of accused under Section 313 Cr.P.C. and it was observed that in certain cases where there is perfunctory examination under Section 313 Cr.P.C. the matter can be remanded to trial Court with a direction to re-try from the stage at which the evidence of prosecution was closed. 16. Honble Apex Court in Tara Singh v. The State, AIR 1951 Supreme Court 441, has observed that every error or omission in recording the statement of accused in terms of Section 342 Cr.P.C. does not necessarily vitiate a trial as the error of this type falls within the category of curable irregularities and the question in each case depends upon the degree of the error and upon whether prejudice has been occasioned or is likely to have occasioned. 17. Hence, in view of this legal preposition, it cannot be said that any illegality has been committed by learned appellate Court in remanding the case to learned trial Court for fresh trial from the stage of recording of statement of accused under section 313 Cr.P.C., warranting interference by this Court. 18. Hence, there is no merit in the present revision petition. The same is, hereby, dismissed.