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2014 DIGILAW 559 (GUJ)

NAZIMABEN PARVEZBHAI NATHANI v. STATE OF GUJARAT

2014-04-24

M.D.SHAH

body2014
ORAL JUDGMENT This petition is filed praying to quash and set aside the order dated 23.5.2012 passed by learned 9th (Ad-hoc) Additional Sessions Judge, Rajkot in Criminal Appeal No.68 of 2008. The present petitioner is original complainant who lodged the complaint against respondent no.2 for the offences punishable under Section 138 of Negotiable Instruments Act before the learned Chief Judicial Magistrate, First Class, Rajkot on 9.9.2004. After verifying the complaint, the process was issued and it has been numbered as Criminal Case No.8242 of 2004. At the end of the trial, the learned trial Court convicted the present respondent no.2 vide judgment and order dated 25.9.2008. The said judgment and order was challenged by the present respondent no.2 before the appellate Court by filing appeal which was numbered as Criminal Appeal No.68 of 2008. Relying upon the judgment delivered by the Hon'ble Apex Court in the case of Nitinbhai Saevantilal Shah V/s Manubhai Manjibhai Panchal, reported in 2001(0) GLHEL-SC 50319, the learned 9th (Ad-hoc) Additional Sessions Judge, Rajkot quashed and set aside the judgment and order of conviction and directed the trial Court to proceed with the matter afresh and denovo trial be conducted. It is this order which is challenged in this petition. Heard learned advocates for the parties and perused the papers. Learned advocate for the petitioner submits that before the trial Court, the evidence is recorded on oath, cross-examination is also carried out by the learned advocate for the accused in great detail and the trial is not conducted in summary manner and thereafter the judgment is delivered and therefore the learned appellate Court has committed error in passing the order of denovo trial. Learned advocate for respondent no.2 submits that legal and proper order is passed by the appellate Court and so considering the powers under Section 482 of Criminal Procedure Code, this petition deserves to be dismissed. It is not disputed fact that evidence is recorded on oath like in warrant triable case and so in light of the judgment delivered by the Hon'ble Apex Court in the case of Mehsana Nagrik Sahkari Bank Ltd. V/s Shreeji Cab Co. & Ors. Etc. It is not disputed fact that evidence is recorded on oath like in warrant triable case and so in light of the judgment delivered by the Hon'ble Apex Court in the case of Mehsana Nagrik Sahkari Bank Ltd. V/s Shreeji Cab Co. & Ors. Etc. passed in Criminal Appeal Nos.968-971 of 2013 (Arising out of SLP(C) Nos.4381-4384 of 2012) wherein the Hon'ble Apex Court has held that if evidence is not recorded in summary manner and entire evidence is recorded on oath, then it is not required to pass order of denovo trial and Court can proceed with the matter even in the case the judge is transferred, in opinion of this Court, it is not required to express any opinion on merits and the matter is required to be remanded to the appellate Court for fresh decision. Hence, this petition is allowed. The order dated 23.5.2012 passed by learned 9th (Ad-hoc) Additional Sessions Judge, Rajkot in Criminal Appeal No.68 of 2008 is hereby quashed and set aside qua the order of denovo trial is concerned. However, the order passed for suspension of the sentence imposed by the trial Court is hereby continued till final disposal of the appeal by the appellate Court. It is clarified that this Court has not expressed any opinion on merits and so the appellate Court will decide the appeal on its own merits, in accordance with law and without being influenced by this order as well as the order of the appellate Court which is challenged in this petition. Considering the fact that the appeal is of the year 2008, the appellate Court is directed to dispose of the same as early as possible. Rule is made absolute to the aforesaid extent.