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2013 DIGILAW 1139 (RAJ)

Shyam Prakash Agarwal v. Ramesh Kumar Gupta

2013-07-01

NISHA GUPTA

body2013
JUDGMENT 1. - This criminal revision petition under Section 397 read with Section 401 of CrPC has been filed against the order dated 27.11.2012 passed by the Additional District and Sessions Judge, No. 9, Jaipur Metropolitan in Criminal Appeal No. 15/2012 whereby the Appellate Court had set aside the order of Additional Chief Metropolitan Magistrate No. 12, Jaipur Metropolitan City in complaint case No. 849/2012 convicting the accused respondent and the matter has been remitted for re-consideration. 2. The brief facts of the case are that the complainant petitioner filed a complaint against the accused respondent under Section 138 of the Negotiable Instruments Act. After trial of the complaint the accused respondent has been convicted under Section 138 of the NI Act and was sentenced to undergo two years simple imprisonment and a fine of Rs. 2,59,000/-. The accused respondent preferred an appeal against the said conviction and sentence and the Appellate Court has remitted the matter to the Court below for retrial. 3. The contention of the petitioner is that the order of the Appellate Court is contrary to law as the case was tried as a summons case as no record has been prepared under Secs. 263 and 264 CrPC and there was no reason to remit the matter to the learned Trial Court for summary trial under Section 143 NI Act. The order is totally unjustified and uncalled for. Hence, the order of the Appellate Court be quashed and set inside. He has placed reliance on Ajay Nahta v. Rakesh K. Jain & Anr., 2012 (1) CrLR (Raj.) 140 : 2012 (2) NIJ 418 (Raj) . 4. Per contra, the contention of the accused respondent is that there is no infirmity in the impugned order but he does not dispute about the legal position explained in the case of Ajay Nahta (supra). 5. Here in the present case it is not in dispute that the Court below has tried the , case as a summons cases as admittedly no record has been prepared by the Court below under Secs. 263 CrPC and it has been clearly stated in Shivaji Sampat Jagtap v. Rajan Hiralal Arora & Anr., 2007 CrLJ 122 in which it has been held that if no record has been prepared under Secs. 263 CrPC and it has been clearly stated in Shivaji Sampat Jagtap v. Rajan Hiralal Arora & Anr., 2007 CrLJ 122 in which it has been held that if no record has been prepared under Secs. 263 and 264 CrPC it will be treated that the case has been tried as regular summons case and the provisions of Section 326(2) CrPC will not be attracted and no de novo trial is needed. In the present case, the case has been tried as a summons case hence the order of the Appellate Court to try the case under Section 143 of the NI Act is unjustified and deserves to be quashed. 6. In view of the above, the order dated 27.11.2012 passed by the Additional District & Sessions Judge No. 9, Jaipur Metropolitan in Criminal Appeal No. 15/2012 remanding the matter to the Trial Court is set aside and the Appellate Court is directed to decide the matter on merit. The parties are directed to appear before the Appellate Court on 23.7.2013. The revision petition stands allowed.Revision Petition Allowed. *******