Research › Search › Judgment

Gujarat High Court · body

2021 DIGILAW 731 (GUJ)

PRAKASH D DOSHI v. STATE OF GUJARAT

2021-08-26

B.N.KARIA

body2021
ORDER : 1. By way of present application the applicant has prayed for following reliefs: “(B) Your Lordships may be pleased to quash and set aside the impugned order dated 25.07.2013 passed in Criminal Revision Application No.05/2013 by Ld. Sessions Judge, Ahmedabad, directing de novo/ fresh trial of a Criminal Case No.610/08, pending in the court of Ld. Metropolitan Magistrate Court No. 29 (NI Special Court), Ahmedabad. (C) Your Lordship may be pleased to expedite the trial of a Criminal Case No. 610/08, pending in the court of Ld. Metropolitan Magistrate Court No.29 (NI Special Court), Ahmedabad.” 2. Heard Learned Advocate for the applicant as well as Learned APP for the Respondent -State. 3. However, notice was served to the Respondent No.2, none was present to contest this petition for an on behalf of the respondent No.2. 4. Brief facts of the present case are as under: That, the applicant is the original complainant where as respondent No.2 is the original accused. The complaint filed by the applicant on 28.07.2008 being numbered as Criminal Case No.610/08, before the Ld. Metropolitan Magistrate Court No.29 (NI Act) at Ahmedabad against the respondent no.2 namely Ajay Narendrabhai Patel (original accused) alleging that the respondent no.2 had taken a friendly loan of Rs.3,50,000/- with a condition of repayment on demand. That, the applicant had demanded the said amount back and therefore respondent no.2 issued two cheques towards the part payment of aforesaid legal dues for an amount of Rs.2,00,000/- which were returned dishonored and thereafter statuary demand notice was issued by the applicant. In spite of that, the respondent no.2 didn’t make the payment of the aforesaid legal dues, and therefore, the applicant had filed complaint under section 138 of Negotiable Instruments Act, 1881. That after filing of the said complaint and verification of the complainant, summons was issued and respondent no.2 was appeared before the trial court and after completing legal formalities, engaging advocate etc his plea was recorded under section 251 of Cr.P.C. on 28.06.2010. That as the respondent no.2 pleaded not guilty, the applicant had proceeded to file the evidence in form of an affidavit on 19.07.2010. That the advocate of the respondent no.2 did not cross-examine the present applicant though given sufficient time and as directed by the Honourable court and therefore his right to cross-examine was closed. That as the respondent no.2 pleaded not guilty, the applicant had proceeded to file the evidence in form of an affidavit on 19.07.2010. That the advocate of the respondent no.2 did not cross-examine the present applicant though given sufficient time and as directed by the Honourable court and therefore his right to cross-examine was closed. Thereafter, further statement of respondent no.2 was recorded on 01.02.2011 and trial was at the fag end and almost near completion on merits. That the respondent no.2 (original accused) filed an application Exh.38 for de novo trial before the trial court on 20.11.2012 and the learned Magistrate rejected the said application vide order dated 29.12.2012. 5. Being aggrieved by the said order, respondent no.2 has filed Criminal Revision Application No.05/2013 wherein, the Additional City Sessions Judge, Court No.18, Ahmedabad was pleased to allow the said revision application vide order dated 25.07.2013 directing de novo trial and commencement of proceedings of afresh hence, present petition. 6. Learned Advocate appearing for the applicant submits in his arguments that, the impugned complaint lodged by the complainant under section 138 of the Negotiable Instruments Act for dishonor of the cheques an amount of Rs.2,00,000/- which was issued with the signature of the respondent no.2 for the account maintained by him for the payment of legal dues. The complainant had issued statutory notice and after non compliance of the same, he had filed the complaint within the time limit prescribed by law. 7. It is further argued by learned advocate appearing for the applicant that after completing legal formalities, his plea was recorded under section 251 of the Code of Criminal Procedure on 28.06.2010. That affidavit in form of chief examination was filed by the petitioner. That advocate of the respondent no.2 before the trial court did not cross-examine the present petitioner / complainant though given sufficient time, as directed by the learned trial court, his right to cross- examination was closed. That thereafter, the bank witness was summoned examined and cross-examined. That further statement of the applicant was recorded. Learned trial court has committed error by not appreciating the factual aspects of the case in the correct back ground and said order passed in Criminal Revision Application No.05 of 2013 is contrary to the provisions of law and natural justice. That thereafter, the bank witness was summoned examined and cross-examined. That further statement of the applicant was recorded. Learned trial court has committed error by not appreciating the factual aspects of the case in the correct back ground and said order passed in Criminal Revision Application No.05 of 2013 is contrary to the provisions of law and natural justice. Learned advocate for the applicant has further submitted that the impugned order is not correct in view of the judgement passed in Special Criminal Application No.898 of 2013 dated 15.07.2013 as well as the Criminal Appeal No.968-971 of 2013 dated 12.07.2013. At the end learned advocate for the applicant has requested to allow present application, by quashing and setting aside the impugned order dated 25.07.2013 passed in Criminal Revision Application No.05 of 2013 by Learned Additional City Sessions Judge, Court No.18, Ahmedabad. 8. Learned APP for the respondent no.2 has requested to pass an appropriate order in the present matter. Nobody argued on behalf of respondent no.2. 9. Heaving heard learned advocate for the applicant as well as learned APP for the respondent-State and papers available on record, it appears that while passing the impugned order the learned Additional City Sessions court has observed in paragraph nos. 15 to 17 as under; “15. Accordingly, if the learned trial judge was of the opinion of proceed with the matter as summons trial he is required to hear the parties to the complaint and record a specific order to that effect. 16. Admitted, there is no specific order passed either by learned Metropolitan Magistrate, who initially recorded the plea u/s.251 of the Cr.P.C. or by the successor Metropolitan Magistrate who proceeded ahead with the matter, as provided u/s.143 of N.I. Act. 17. In view of the above discussion and for the reasons stated above, the present revision application succeeds. The impugned order of the trial court appears to be erroneous. The mandatory provisions u/s. 143 of the NI Act is not complied with. Therefore, the said order is required to be interfered with.” 10. It further appears that, the applicant had given an application vide Exh.38 before the trial court under section 236 of the Cr.P.C. requesting the court for de novo trial as the plea was recorded by the predecessor Magistrate and trial could not be concluded. Therefore, the said order is required to be interfered with.” 10. It further appears that, the applicant had given an application vide Exh.38 before the trial court under section 236 of the Cr.P.C. requesting the court for de novo trial as the plea was recorded by the predecessor Magistrate and trial could not be concluded. Further, it appears that the trial court after hearing both the parties came to the conclusion that the plea was recorded under section 251 of the Code of Criminal Procedure i.e. as per summons trial procedure and thereafter, the complainant is examined. Thereafter, he was cross-examined by the respondent no.2. Further statement was also recorded of the respondent no.2. The trial court has held that the matter was not proceeded in summary triable manner. It appears that by not applying the ration laid down in the case of Nitinkumar Saventilal, learned trial court has rejected the application. The deposition of the complainant was also brought on record which speaks that he was examined but unfortunately right to cross-examine was closed by the Court and thereafter bank witness was also examined and such witness was cross-examined by the defence side. And thereafter, at the request of the complainant, further statement of the respondent no.2 was recorded. The case was tried by the Metropolitan Court as summons triable case as provided under the provisions of Code of Criminal Procedure. It further appears that during the entire trial no objection was raised by the accused in the trial and after completing recording evidence from prosecution, the entire trial, an application Exh.38 was submitted by the accused persons with a request to record the plea under section 326 of Code of Criminal Procedure. 11. It further appears that, however in a case whereas procedure in summons triable or warrant triable has been adopted by the Magistrate and where no objection is raised by the accused till fag end of the trial, it would not be permissible to raise such an objection insisting on fresh trial, which is precisely what has happened in the present case. Not only pre-charge evidence was recorded, the witnesses were offered for cross-examination even at that stage. Not only pre-charge evidence was recorded, the witnesses were offered for cross-examination even at that stage. The Division Bench of this Court in Special Criminal Application No. 898 of 2013 has observed in para 30, as under: “To summarise, the decision of the Supreme Court in the case of Nitinbhai Saventilal Shah (supra) has no bearing in the present controversy. Though as per section 16-A of the PFA all offence under section 16(1) are to be tried by the Magistrate of First Class so empowered summarily, departure from this procedure can be made only as provided under further proviso where it appears to the Magistrate that sentence exceeding one year may be warranted or for any other reason it is not desirable to try the case summarily, he can after hearing the parties do so by passing an order. However, in a case where procedure for summons triable or warrant triable case has been adopted by the Magistrate and where no objection is raised by the accused till the fag end of the trial, it would not be permissible to raise such an objection insisting on fresh trial, which is precisely what has happened in the present case. The petitioner participated in the trial without any objection or murmur. Not only pre-charge evidence was recorded, the witnesses were offered for cross-examination even at the stage. The petitioner participated in the proceedings. The charge was framed. The witnesses were recalled and crossexamined at length by the defence. Only when the case was fixed for oral arguments, an objection to the procedure was taken. In our opinion, such a procedure being at best irregular and the irregularity being curable, it would be wholly unjust to permit the petitioner to take advantage of his own silence and to raise such a contention at the fag end of the trial. Even going by the philosophy of sub-section (2) of section 465 of the Code of Criminal Procedure, the petitioner’s objection cannot be sustained.” 12. The Honourable Court has held in Criminal Appeal No. 968- 971 of 2013 that, the evidence in that case was recorded in full and not in a summary manner and therefore the prayer of the accused persons cannot be accepted in the present case also when the plea was recorded under section 256 of the Code of Criminal Procedure. The Honourable Court has held in Criminal Appeal No. 968- 971 of 2013 that, the evidence in that case was recorded in full and not in a summary manner and therefore the prayer of the accused persons cannot be accepted in the present case also when the plea was recorded under section 256 of the Code of Criminal Procedure. Therefore, prayer of the applicant is accepted and order passed by learned Additional City Sessions Judge, Court No.18, Ahmedabad in Criminal Revision Application No. 05 of 2013 on 25.07.2013 stands quashed and set aside and the order dated 29.11.2008 passed by the learned Metropolitan Magistrate (NI Act) Court No.29 below Exh.38 in Criminal Case No. 610 of 2008 stands restored to its original file. 13. As the matter is pending before the trial court since 2008 and was fixed at the stage of final arguments, the learned Metropolitan Magistrate shall proceed with the matter and decide the same within a period of four months from the date of receipt of this order. RULE is made absolute to the aforesaid extent.