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2025 DIGILAW 296 (GUJ)

Rakeshbhai Ambalal Patel v. State of Gujarat

2025-03-19

PRANAV TRIVEDI

body2025
JUDGMENT : (PRANAV TRIVEDI, J.) [1] The present revision application is filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") challenging the judgment and order dated 21.06.2013 passed in Criminal Appeal No.25 of 2013 below Exhibit 7' by the 5 th Additional Sessions Judge, Nadiad, District - Kheda (hereinafter referred to as "the appellate court"). [2] The brief facts resulting into filing of the present revision application are that it was the case of the revisionist - applicant that he has issued a cheque worth Rs.1,65,000/- to the complainant, i.e., respondent No.2 (hereinafter referred to as "the respondent"), which was dishonored. This has led to filing of a complaint under the provisions of Section 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as "the Act"). The complaint came to be filed before the Judicial Magistrate First Class, Kapadvanj (hereinafter referred to as "the trial court"). The case came to be registered as Criminal Case No.2092 of 2007 and the process came to be issued. Pursuant to the issuance of the process, the plea of applicant was recorded below Exhibit 7' and the documentary evidence was produced by the applicant along with the testimony of oral witnesses. The learned trial court, after hearing both the parties and perusing the material on record, convicted the present revisionist - applicant under Section 138 of the Act, sentencing him to 6 months of simple imprisonment along with a fine of Rs.5,000/-. This order, dated 31.01.2013, was challenged before the appellate court. The appeal came to be filed, which is came to be registered as Criminal Appeal No.25 of 2013 before the appellate court. During pendency of the appeal, the present applicant filed an application under Section 326(3) of the Code, praying for de novo trial. The application preferred by the revisionist - applicant came to be rejected, which is impugned in the present revision application. [3] Though Rule has been served upon the respondent No.2, no one remained present on behalf of the respondent No.2. [4] Heard Mr. H. A. Qureshi, learned advocate appearing on behalf of Mr. R. J. Goswami, learned advocate for the applicant. Mr. Qureshi, learned advocate has contended that the order passed by the appellate court is de hors the provisions of law and without any reasons. Mr. [4] Heard Mr. H. A. Qureshi, learned advocate appearing on behalf of Mr. R. J. Goswami, learned advocate for the applicant. Mr. Qureshi, learned advocate has contended that the order passed by the appellate court is de hors the provisions of law and without any reasons. Mr. Qureshi, learned advocated has submitted that the appellate court has not considered the provisions of Code more particularly Section 326(3) of the Code. It was further submitted that during the trial, two predecessor Magistrates had recorded the evidence, while the successor Magistrate had heard the arguments and pronounced the judgment. The case is triable as a summary trial and there are clear provisions under Section 326(3) of the Code that in a summary trial, only one magistrate has to complete the proceedings. In the instant case, three different Magistrates had dealt with the proceedings of the case and, therefore, the order passed by the appellate court, rejecting the application of the present applicant, is required to be quashed and set aside. [4.1] To substantiate his submission, Mr. Qureshi, learned advocate has relied upon the decision of the Hon'ble Apex Court which is in the case of Nitinbhai Saevatilal Shah and another versus Manubhai Manjibhai Panchal and another reported in (2011) 9 SCC 638 . It has been submitted by Mr. Qureshi, learned advocate that sub-section (3) of Section 326 makes it clear that sub-section (1) does not apply to summary trial. The prohibition contained in sub-section (3) of Section 326 of the Code is absolute and admits of no exception. Relying on Section 326(3) of the Code, it has been submitted by Mr. Qureshi, learned advocate that in summary proceedings, the successor Judge or Magistrate has no authority to proceed with the trial from a stage at which his predecessor has left it. [4.2] Further reliance is placed by Mr. Qureshi, learned advocate on the decision of Hon'ble Apex Court in the case of Suo Motu Writ Petition (Crl.) No.2 of 2020, decided on April 16, 2021 reported in (2021) 16 SCC 116 , wherein placing reliance on para 9' of the judgment, it has been submitted that Section 143 is for quick disposal of complaints filed under Section 138 of the Act. Therefore, in a case tried summarily in which the accused does not plead guilty, it is sufficient for the Magistrate to record the substance of the evidence and deliver a judgment, containing a brief statement of reasons for his findings. On the basis of aforesaid observations, Mr. Qureshi, learned advocate had prayed to quash and set aside the order passed by the learned appellate court at Exhibit 7'. [5] Having heard learned advocate appearing for the applicant and perusing the material on record, it is evident that the complaint was filed in the year 2007. Thereafter, the plea of applicant was recorded below Exhibit 7'. Thereafter, documentary evidence was produced by the present applicant by way of Exhibit 9'. The testimony of two witnesses was recorded at Exhibit 18' and Exhibit 55' and thereafter, the trial proceeded as a normal trial, which is clear from the bare perusal of the record and proceedings. It is pertinent to note that the prayers made in the application preferred by the present applicant is for conducting a de novo trial. It has been categorically recorded by the learned appellate court that the plea has been recorded by the learned trial court below Exhibit 7' as a summons triable case and not as a summary triable case. It has further been recorded by the appellate court that there is no argument on behalf of the revisionist - applicant before the trial court during the course of the trial regarding the aspect that the case has to be conducted as a summary triable case. [6] The reliance placed by the present applicant in the case of Nitinbhai Saevatilal Shah and another versus Manubhai Manjibhai Panchal and another (supra) is not being construed properly, inasmuch as, the entire reading of the judgment of the Hon'ble Apex Court, it nowhere suggests, even remotely, that when in a given case, the plea is recorded, as if it is not a summary case and the evidence taken by different Magistrate treating that the case shall not to be a 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. Further, the issue that the trial ought to have been conducted de novo since the Magistrate who had recorded a part of the evidence got transferred and was succeeded by other Magistrate, is now no more res intigra in view of the judgment of the Hon'ble Apex Court in the case of Mehsana Nagrik Sahkari Bank Ltd. versus Shreeji CAB Co. & Ors. reported in 2014 AIR SCW 1816 . Pursuant to the judgment of the Hon'ble Apex Court, even the co-ordinate bench of this Court in the case of Manilal Nathubhai Mehta versus Patel Girdhar Khimjibhai and amp; CO. A Partnership Firm and another passed in Special Criminal Application (Quashing) No.944 of 2015 dated 09.04.2015 , on similar facts, has taken the same view. This Court in Manilal Nathubhai Mehta (supra) has observed in paragraphs Nos. 2 to 5 which are reproduced hereinafter:- "2 The petitioner herein – the original complainant aged 84 calls in question the legality and validity of the order dated 11.03.2013 passed by the 3 rd Additional Sessions Judge, Jamnagar in Criminal Appeal No.14 of 2011, by which the learned Judge allowed the appeal filed by the accused persons and thereby quashed and set aside the judgment and order of conviction passed by the trial court against the accused persons of the offence punishable under Section 138 of the Negotiable Instruments Act. 3 It appears on plain reading of the impugned order that the appellate court took the view that the trial ought to have been conducted de novo since the Presiding Officer who had recorded a part of the evidence got transferred and was succeeded by other Presiding Officer. The appellate court has taken the view that the successor-in-office could not have continued with the trial and delivered the judgment since the case was summary triable. It appears that the appellate court has also taken the view that no order was passed by the court to conduct the trial as a summons triable case. 4 In my view, the court committed a serious error in passing the impugned order. This issue is no longer res integra after the pronouncement of the decision of the Supreme Court in the case of Mehsana Nagrik Sahkari Bank Ltd. v. Shreeji CAB Co. & Ors reported in 2014 AIR SCW 1816 . The relevant paragraphs Nos. 4 In my view, the court committed a serious error in passing the impugned order. This issue is no longer res integra after the pronouncement of the decision of the Supreme Court in the case of Mehsana Nagrik Sahkari Bank Ltd. v. Shreeji CAB Co. & Ors reported in 2014 AIR SCW 1816 . The relevant paragraphs Nos. 3-A, 4, 5 and 6 are quoted hereinbelow: “3-A. The appellant Bank had filed a complaint before the competent court under Section 138 of the Negotiable Instruments Act, 1881 against respondent Nos. 1 to 3. As the respondents wanted one additional party to be added to that complaint, they filed an application under Section 319 of the Code of Criminal Procedure before the Additional Chief Judicial Magistrate, Mehsana. That application having been rejected, a Criminal revision application was filed before the Principal Sessions Judge, Mehsana. That Judge confirmed the order passed by the Trial Court. Thereafter, the respondents filed an application before the High court for quashing and setting aside the orders passed by the criminal courts. The High Court proceeded on an entirely different premise and disposed of the application filed by the respondents noting that the evidence in the mater had come to be recorded by the additional Chief Judicial Magistrate, Mehsana. The proceeding under Section 138 of the Negotiable Instruments Act is a summary trial proceeding. Hence, the concerned successor Magistrate had to record the record the evidence de novo and any order passed on the basis of the evidence recorded by his predecessor was not valid. The High Court relied upon the above judgment in support thereof and passed an order directing a fresh recording of evidence. It is against this order of the High Court that this appeal, by special leave, has been filed. 4. Mr. Huzefa Ahmadi, learned senior counsel appearing for the appellant-Bank pointed out that the law laid down this Court in the above authority is that when a proceeding is conducted as a summary trial, and when one Magistrate has partly heard the case and is succeed by another Magistrate, that second Magistrate has to re-heard the whole case afresh and he cannot start from the stage the first Magistrate left it. There was no question of the High Court asking the entire matter to be looked into by another Magistrate de novo, in the present case because, in fact, the evidence had not been recorded in a summary manner, but it was recorded in full. Mr. Sanjanwala, learned counsel appearing for the respondents, on the other hand, submits that the law laid down in Nitinbhai Saevatilal Shah & Anr. v. Manubhai Manjibhai Panchal & Anr ( AIR 2011 SC 3076 ) (supra) be followed. 5. We have perused the notes of evidence which are produced on record. They clearly show that the evidence in this case was recorded in full and not in a summary manner. That being so, we cannot but accept the submission of Mr. Ahmadi. 6. In the facts and circumstances of the case, we allow this appeal, set aside the order passed by the High Court and direct the Additional Chief Judicial Magistrate, Mehsana, to proceed hereafter from the stage where it is pending now. As far as the application of the respondents for adding some other person to the complaint is concerned, we are not inclined to accept that. It is for the complainant to decide as to against which party it wants to proceed. That application will stand rejected.” 5 Following the aforesaid decision of the Supreme Court, a learned Single Judge of this court has delivered a judgment in the case of Yogeshwar Oil Industries through partner v. POL World Pvt Ltd through Director and others, dated 16.08.2013 in Special Criminal Application No.2171 of 2012 and other cognate matters. The learned Single Judge made the following observations in paragraphs Nos.5, 6, 7, 8, 9, 10, 11 and 12: “5. The applicant, who happens to be the complainant was constrained to lodge criminal case being Criminal Case No.8910 of 2008 in the competent Court under the provisions of 138 of Negotiable Instruments Act, 1881 as the cheque bearing no.021648 dated 3rd November, 2008 issued by and on behalf of original accused, was dishonoured by the bank and the amount despite the statutory notice remained unpaid. The criminal case proceeded at various stages and the trial commenced as if it was a summons case. There was no mentioning or objection or demur at any stage from any quarter qua conducting the matter as if it was a summons case. The criminal case proceeded at various stages and the trial commenced as if it was a summons case. There was no mentioning or objection or demur at any stage from any quarter qua conducting the matter as if it was a summons case. Looking to the provision of Section 143 (1) of Negotiable Instruments Act, 1881 and in light of the decision of this Court, as well as the Apex Court, an application came to be preferred under Exh.150 on behalf of accused inter alia praying that as the Trial Court did not proceed in the trial summary and there is no specific order as provided under the provision of Section 143 (1) of Negotiable Instruments Act, 1881 for recording reasons for conducting the trial as if it was summons trial, the Court has to record the evidence afresh or else, it will be breach of the provision. The said application of the accused dated 8th June, 2012 for de-novo trial unfortunately came to be allowed vide order dated 21st June, 2012, which is subject matter of challenge in this application under Article 226 and 227 of the Constitution of India. 6. Learned advocate for the applicant invited this Courts attention to the decision of the Division Bench of this Court in case of Babubhai Jinabhai Gujjar V/s. State of Gujarat, in Special Criminal Application No.898 of 2013 and contended that the issue with regard to the de-novo trial is now no more res integra as it is settled that the de-novo trial is required to be ordered only and only in case where the recording of evidence was in the form of summary trial and the change of the Presiding Officer, who has not recorded the evidence in summary fashion was to decide the matter, if in case, the recording of evidence in form of summons case, meaning thereby in case if at length procedure of summons trial is followed and it is recorded by the Magistrate/presiding officer then in that case, the Court need not order de-novo trial. In the instant case, as could be seen from the order itself, the Court has recorded clearly that the trial has gone and as if it was a summons case only. Mere non-recording of reasons for conducting the trial as summons case would not in any way entitle the accused to seek de-novo trial. In the instant case, as could be seen from the order itself, the Court has recorded clearly that the trial has gone and as if it was a summons case only. Mere non-recording of reasons for conducting the trial as summons case would not in any way entitle the accused to seek de-novo trial. It is nothing but a delaying tactics adopted for prolonging the trial and this Court may not countenance it in any manner. Learned advocate for the applicant has also placed reliance upon the decision of the Supreme Court in case of Mehsana Nagrik Sahakari Bank Ltd., V/s. Shreeji CAB Co. & Ors. in Criminal Appeal Nos.968-971 of 2013 vide its order dated 12th July, 2013, wherein also Apex Court has held that the case of Nitinbhai Saevatilal Shah & Anr. V/s. Manubhai Manjibhai Panchal & Anr., (2011) 9 SCC 638 decided by the Apex Court have no applicability to the peculiar facts and circumstances of the case on hand. 7. Learned advocate for the applicant contended that the decision of the Court, which has been relied upon by the Trial Court for ordering denovo trial cannot now said to be a good law so as to sustain that order and therefore, the said order is required to be quashed and set aside. 8. Learned counsel for the respondentaccused Shri Majmudar contended that there cannot be any dispute qua proposition of law laid down in the judgment cited at the bar. However, the statutory provision under Section 143 (1) of Negotiable Instruments Act, 1881 and proviso thereunder clearly indicate the manner in which the Court in case if choose to try the matter as a summons case, has to record its reasons and in the instant case, the record clearly indicate that there exits no such recording and hence, the Court was left with no choice but to order de-novo trial as it is ordered in the impugned order and therefore, this Court may not interfere with the same. 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. 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 18 th 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. 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. 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. Hence, this application being Special Criminal Application No.2171 of 2012 is allowed. Rule is made absolute. Direct service permitted. 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.” [7] In view of the same, the issue of de novo trial is now no more res intigra. The order passed by the appellate court dated 21.06.2013 in Criminal Appeal No.25 of 2013 below Exhibit 7' by the 5 th the Sessions Court cannot be interfered with. The appellate court is hereby directed to hear Criminal Appeal No.25 of 2013 on merits and dispose of the same in accordance with law within a period of 6 months from today. [8] With the above observations, the present revision application is dismissed as being devoid of merits. Rule is discharged.