JUDGMENT : Though notice of rule of admission has already been served upon private respondent No.2, he has not put his appearance for about last four years. 2. Heard learned advocate Mr. P. P. Majmudar for the appellant and learned Additional Public Prosecutor Ms. Hansa Punani for the respondent State. 3. Learned advocate for the appellant states that learned appellate court, while dealing with the criminal appeal, believed that the private complaint filed under the provisions of Negotiable Instruments Act, 1881 was tried in a summary manner as provided under the provisions of the said Act and under the said belief, as the trial proceeded against subsequent magistrate, placing reliance upon the celebrated decision in Nitinbhai Sevantilal Shah and anr. vs. Manubhai Manjibhai Panchal and anr. [ (2011) 9 SCC 638 ], the learned appellate court remanded the matter for de novo trial. Learned advocate for the appellant points out that upon institution of the complaint, learned Magistrate issued summons under Section 204 of the Criminal Procedure Code and thereafter recording the plea, regular procedure as envisaged under the Criminal Procedure Code for conducting the summons trial is adopted and nowhere, it was mentioned that any of the Magistrate who conducted and tried the case has ever adopted a summary trial as such. Consequently therefore, the ratio laid down in the celebrated decision in Nitinbhai Sevantilal Shah(supra) was not at all applicable. Learned advocate for the appellant further points out that the record & proceedings clearly indicates that the complainant has examined two witnesses and the accused has also examined two witnesses in his defence and a detailed summons trial is conducted and the trial was not at all summary in nature. He states that therefore, under the premises of wrong interpretation, de novo trial came to be ordered by learned appellate court. 4. The issue is no longer res integra in view of decision in Mehsana Nagrik Sahakari Bank Limited vs. Shreeji Cab Company and ors. wherein Hon’ble the Supreme Court, while dealing with criminal appeal Nos. 968 of 2013 and 971 of 2013, made it clear that if summons trial is adopted, then there would not be application of law as laid down in Nitinbhai Sevantilal Shah (supra). wherein Hon’ble the Supreme Court, while dealing with criminal appeal Nos. 968 of 2013 and 971 of 2013, made it clear that if summons trial is adopted, then there would not be application of law as laid down in Nitinbhai Sevantilal Shah (supra). This Court also while deciding Special Criminal Application No. 2171 of 2012 and allied matters on 16.08.2013, elaborately dealt with the issue, more particularly in paragraphs 9 to 12 which are extracted as under:- “9. The Court is of the view that before adverting to the rival submissions of learned advocate for the parties, it is most appropriate and expedient to refer the indisputable findings and facts recorded by the trial Court while passing the order below Exh.150, which would certainly give proper ground for appreciating the rival submissions. 10. The trial Court has in an unequivocal terms, recorded its finding that the case was registered in the year 2008 and it was being conducted before more than one Magistrate. The Court has also recorded that looking to the plea recording proceedings, the case cannot be said to have been ever tried as summary case. The Court has further recorded that the plea is to be recorded in a particular form under the provision of Section 263 of Cr.P.C. and the recording of the plea and thereafter evidence, indicate that the same cannot be said to be a summary trial at all, nor has the case been registered as summary case. The statement under Section 313 of Cr.P.C. came to be recorded on 18th January, 2010. Thereafter, below Exh.66, the accuseds affidavit as examination-in-chief is taken on record. Thereafter, as per Exh.73, the accused have produced documentary evidences and Exh.74 is an application for summoning witnesses, which has been partly granted and at Exh.82, the accused witnesses have been examined. Thus, the detailed proceedings and procedure adopted in the case has been recorded by the trial Court and trial Court has recorded that the case had not been conducted as a summary case at all and Court has also recorded that there are all the efforts on the part of the accused in prolonging the case. 11. It is indeed unfortunate that after recording the aforesaid clear findings, the Court instead of dismissing Exh.150 application, found itself bound by the provisions, which were not applicable at all. 11. It is indeed unfortunate that after recording the aforesaid clear findings, the Court instead of dismissing Exh.150 application, found itself bound by the provisions, which were not applicable at all. The Court has taken into consideration the provision of Section 143 of the Negotiable Instruments Act, 1881 and found that the reasoning for not trying the case summarily was not recorded, though the case has not been conducted in a summary fashion. In absence of any such order under Section 143 of Negotiable Instruments Act, 1881 that the case is one to be tried as summons case and not as summary and relying upon the decision of this Court in case of Vishnu Hargovandas Patel (Supra), the Court has come to the conclusion that the case is required to be tried de-novo and accordingly the order is passed. In my view, this order is required to be quashed and set aside, as the decision of the Apex Court in case of Nitinbhai Saevatilal Shah & Anr. (Supra) is not being construed properly and therefore, the resultant error has occurred. The entire reading of the said judgment of the Supreme Court, nowhere suggest, even remotely, that when in a given case, the plea is recorded, as if it is not a summary case and the evidences taken by different Magistrate treating the case not to be summary case, at that time, the accused cannot be permitted to fall back upon the fact that the Court has not passed specific order of conducting the matter as regular trial and not summary. 12. This Court is of the view that if the requirement of recording reasons for passing formal order is said to be vitiating the otherwise proper trial, then, it will be travesty of justice and it will be taken advantage of unscrupulous litigant and accused in prolonging the trial. Therefore, that provision is to be taken as merely an enabling provision so as not to compel the Court to order de-novo trial or to conduct the de-novo trial. The Division Benchs judgment cited in case of Mehsana Nagrik Sahakari Bank Ltd., (Supra) which was given after appropriate reference made by the Court has put an end to the controversy and therefore, this Court is of the considered view that the order impugned is required to be quashed and set aside. The Division Benchs judgment cited in case of Mehsana Nagrik Sahakari Bank Ltd., (Supra) which was given after appropriate reference made by the Court has put an end to the controversy and therefore, this Court is of the considered view that the order impugned is required to be quashed and set aside. Hence, this application being Special Criminal Application No.2171 of 2012 is allowed. Rule is made absolute. Direct service permitted. The trial Court shall proceed from the stage when Exh.150 application was made and conduct the trial, as if, Exh.150 application was never made and it was never allowed by the Court. In other words, the trial shall start from that stage and be completed as expeditiously as possible.” 5. In view of aforesaid factual position and on going through the judgment and order dated 10.03.2011 of learned Magistrate rendered in Criminal Case No. 6601 of 2008, it is clearly revealing that the complainant lodged the private complaint under Section 138 of the Negotiable Instruments Act against the respondent accused. The learned Magistrate thereafter issued summons and adopted the summons trial and allowed the complainant as well as the accused to lead oral as well as documentary evidence and they have also examined two-two witnesses respectively and a detailed cross-examination thereof was also afforded to them. 6. Since the trial was conducted as summons triable case, the ratio laid down in the aforesaid decision in Nitinbhai Sevantilal Shah (supra) could not have been applied by the first appellate court while hearing the appeal. The learned Additional Sessions Judge has clearly fallen in error in applying the ratio laid down in the aforesaid decision since it was not a summary trial. 7. For the reasons recorded above, judgment and order dated 30.03.2013 passed in Criminal Appeal No. 11 of 2011 by learned 3rd Additional Sessions Judge, Palanpur, Banaskantha is quashed and set aside with a clear direction to learned Additional Sessions Judge to hear the appeal in accordance with law as expeditiously as possible. 8. In view of above, the present appeal stands disposed of. Direct service is permitted.