Monday, 18 July 2016

When de novo trial is not permissible in case of dishonour of cheque?

Remitting the matter for de novo trial
should be exercised as a last resort and should be
used sparingly when there is grave miscarriage of
justice   in   the   light   of   illegality,   irregularity,
incompetence or any other defect which cannot be
cured at an appellate stage. The appellate Court
should be very cautious and exercise the discretion
judiciously while remanding the matter for de novo
trial.
60.6.  While examining the nature of the trial
conducted by the Trial Court for the purpose of
determining   whether   it   was   summary   trial   or
summons trial, the primary and predominant test

to be adopted by the appellate Court should be
whether it was only the substance of the evidence
that was recorded or whether the complete record
of   the   deposition   of   the   witness   in   their   chief
examination,   cross   examination   and   reexamination
in verbatim was faithfully placed on
record. The appellate Court has to go through each
and every minute detail of the Trial Court record
and   then   examine   the   same   independently   and
thoroughly   to   reach   at   a   just   and   reasonable
conclusion.”
5. Now, let me examine the present matter in the light of
the aforesaid observations of the apex Court.
I have seen the evidence that was adduced before the
court in respect of two witnesses examined by complainant and
their cross­examination. The proceedings were completed in four
days and perusal of the cross­examination of both these witnesses
shows that the detailed cross­examination was made by counsel
for the respondent, so also affidavit on evidence was also in detail
and in fact tenor of the evidence adduced by the complainant and
the cross­examination clearly shows that the case was tried as
summons trial.  In my opinion, merely because summary form was
used for explaining the particulars and evidence was recorded only

in English and not in Marathi, one cannot come to the conclusion
that the format used in recording of the evidence in English could
decide whether a case was summary trial or summons trial.  The
substance of the evidence must be seen.   The evidence of two
witnesses   for   the   complainant   was   recorded   so   also   crossexamination
was also done on four various dates.  Perusal of the
cross­examination shows that full dress trial was held and it is
with that understanding, both the parties joined the trial even till
statement under section 313 of Cr. P. C. also recorded.
6. I have perused the record and I find that the evidence
was recorded, cross­examination was conducted and complete trial
was held.   Perusal of the record nowhere shows that, in fact,
summary trial was held. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL WRIT PETITION NO.170/2015
Shri Sukhdeo Ganeshram Tardeja,

...V E R S U S...
 Shri Rajesh Dayaram Sadhwani,

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
CORAM:­ A. B. CHAUDHARI, J.
DATED :­ 09.07.2015
Citation: 2016 ALLMR(CRI)2534

2. By   the   present   petition,   the   petitioner   has   put   to
challenge   the   revisional   order   dated   13.02.2014   passed   by
Sessions Judge, Amravati by which he confirmed the order dated
20.12.2011 passed by Judicial Magistrate First Class, Court No.1,
Amravati ordering  de novo  trial for an offence punishable under
Section 138 of the Negotiable Instruments Act.  In support of the
petition, learned counsel for the petitioner invited my attention to
the evidence, that was recorded before the trial Judge so also the
judgment that, in fact, the trial that was held was a summons trial
and   not   a   summary   trial.   He   submitted   that   complaint   under
Section 138 of the Negotiable Instruments Act was filed in the
Court on 24.06.2009.   Thereafter, the evidence commenced in
July­2010 and the cross­examination was conducted by counsel for
the respondent on 13.08.2010 and 15.10.2010.  Another witness
was   examined   as   CW2­Satyanarayan   Mohanlal   Chhangani   on
29.11.2010, who was cross­examined and on the same day, the
complainant closed his case.  Thereafter, statement of accused was
recorded   and   the   case   was   posted   further.     Learned   counsel
submitted that the trial as well as the appellate court committed
error in not finding distinguishing features in the case at hand
while   considering   the   judgment   in  Nitinbhai   Shah   ..vs..

Manubhai Manjibhai Panchal (2011) 9 SCC 638 and invited my
attention to another judgment of the Supreme Court in the case of
J. V. Baharuni and another ..vs.. State of Gujarat and another;
(2014) 10 SCC 494.  He then submitted that the detailed crossexamination
  was   made   and   the   evidence   was   adduced   like
summons case and not as a summary trial.  The courts below erred
in ordering de novo trial by applying judgment in the case of
Nitinbhai (supra).
3. Per contra, Mr. Shukla, learned counsel for respondent
no.1, submitted that the case of Nitinbhai is squarely applicable in
the instant case at hand since the Magistrate has used summary
form for explaining the particulars and evidence was recorded
only   in   English   and   not   in   Marathi,   which   shows   that   it   was
summary trial and not summons trial.  He, therefore, prayed for
dismissal of the writ petition.
4. I   have   heard   learned   counsel   for   the   rival   parties.
Perused the judgment in the case of Nitinbhai (supra) as well as
J.V.Baharuni (supra).     Here,   it   is   necessary   to   consider   the
observations of the apex Court in J. V. Baharuni (supra) wherein

judgment   in   the   case   of  Nitinbhai  (supra)   has   also   been
considered.  The relevant observations are as under:
“30.  In  Nitinbhai  we  find   that   the   entire
case was tried 'summarily' and the Magistrate who
issued process, was transferred after recording the
evidence. The succeeding Magistrate delivered the
judgment   basing   upon   the   memo   filed   by   the
parties   declaring   that   they   had   no   objection   to
proceed with the matter on the basis of evidence
recorded by his predecessor. Ultimately, this Court
remanded the matter to the Trial Court for de novo
trial  opining  that no amount of consent by the
parties can confer jurisdiction on a Court of law,
where there exists none, nor can they divest a Court
of jurisdiction which it possesses under the law.
31.  Coming to the facts of the present cases,
on scrutiny of record available in SLP (Crl) No.
5623 of 2012, we found that there has been in
total 82 hearings spread over five years. Out of 82
hearings, 67 hearings were done by Jt. C.J.(J.D.)
and  J.M.F.C.,   Veraval.   The   Magistrate   was
transferred  on 24.02.2005  and  was  replaced  by
J.M.F.C., Veraval who heard the case for 14 more
times and delivered judgment on 15th hearing i.e.
on   12.09.2005.   Thus   by   any   stretch   of
imagination,   the   trial   which   extended   over   five
years and was decided in over 82 hearings with

elaborate   cross   examination,   deposition   and   all
trappings of regular trial cannot simply be termed
as "summary trial".
32.  On perusal of record of other two cases
(SLP (Crl.) Nos. 3332 of 2012 and 734 of 2013),
we found the similar situation. The Complaint was
taken up on 20th August, 2001 and the Trial Court
decided   the   criminal   case   on   30th  May,   2009
declaring the accused Appellants as innocent, after
conducting about 132 hearings. It is also evident
from the record that in SLP(Crl) No. 734 of 2013,
the criminal proceedings under the N.I. Act were
initiated in December, 1998 before the Trial Court
which came to be concluded by the judgment of the
Metropolitan   Magistrate   on   7th  August,   2009.
Thus, during the period of about 11 years a total of
103   hearings   took   place   and   a   detailed   trial
procedure had been followed. Going thereby, prima
facie, it is difficult for us to accept that the case was
tried summarily.
33.  Moreover, these cases were decided by
the same judge in the High Court and there seems
to   be   a   mechanical   application   of  Nitinbhai
without   discerning   the   difference   on   facts   of
Nithinbhai  and the present cases. In  Nitinbhai,
the   case   was   established   as   being   decided
'summarily' whereas in the present cases, no such
independent inquiry has been undertaken by the

High Court to arrive at a just conclusion whether
the cases were tried "summarily" or in a "regular
way".
34.  Be that as it may, to satisfy ourselves
we have carefully gone through the records of the
Trial   Court   as   well   as   the   High   Court   in   each
matter before us. There is no doubt, as per the
record,   learned   Magistrate   has   not   specifically
mentioned   that   the   trial   was   conducted   as
summons case or  summary  case. Though in the
record of SLP(Crl) No. 734 of 2013, at some places
the word 'summary' was mentioned as regards to
the nature of proceedings of the case, having given
our anxious and thorough consideration, we found
that  the  word 'summary'  used  therein  was with
reference   to   Chapter   XXII   of   Code   of   Criminal
Procedure,   1882   and   it   does   not   relate   to   the
'summary trial' envisaged Under Section 143, of the
N.I. Act. Pertinently, before the Trial Court the Suit
No. 4457 of 2001 has been referred at some places
as 'Summary Suit' and at some other places it has
been   referred   as   'Civil   Suit'.   Similarly,   the   case
number 5294 of 1998 has been shown at some
places as Summary Case and at some other places
it  was  shown   as  Criminal   Case.  After   a  careful
examination   of   the   record,   we   came   to   the
conclusion that the word 'summary' used at some
places   was   with   reference   to   summary   trials

prescribed   under   Code   of   Criminal   Procedure
Needless to say that the summary trial as preferred
mode of trial in the matters related to negotiable
instruments was inserted by the Amendment Act,
2002 only w.e.f. 6th February, 2003.
35 & 36 ...
37. But where even in a case that can be
tried   summarily,   the   Court   records   the   evidence
elaborately and in verbatim and defence was given
full scope to cross­examine, such procedure adopted
is indicative that it was not summary procedure
and therefore, succeeding Magistrate can rely upon
the evidence on record and de novo enquiry need
not be conducted [See  A. Krishna Reddy.v.State
    and Anr. 1999(6) ALD 279].
38 to 56. …..
57. A de novo trial should be the last resort
and that too only when such a course becomes so
desperately indispensable. It should be limited to
the extreme exigency to avert "a failure of justice".
Any omission or even the illegality in the procedure
which does not affect the core of the case is not a
ground for ordering a de novo trial. This is because
the appellate Court has got the plenary powers to
revaluate and reappraise the evidence and to take
additional   evidence   on   record   or   to   direct   such
additional   evidence   to   be   collected   by   the   Trial
Court. But to replay the whole laborious exercise

after   erasing   the   bulky   records   relating   to   the
earlier   proceedings   by   bringing   down   all   the
persons to the Court once again for repeating the
whole depositions would be a sheer waste of time,
energy   and   costs   unless   there   is   miscarriage   of
justice   otherwise.   Hence   the   said   course   can   be
resorted   to   when   it   becomes   imperative   for   the
purpose of averting "failure of justice". The superior
Court which orders a de novo trial cannot afford to
overlook the realities and the serious impact on the
pending cases in trial courts which are crammed
with   dockets,   and   how   much   that   order   would
inflict   hardship   on   many   innocent   persons   who
once took all the trouble to reach the Court and
deposed their versions in the very same case. The
re­enactment of the whole labour might give the
impression to the litigant and the common man
that law is more pedantic than pragmatic. Law is
not   an   instrument   to   be   used   for   inflicting
sufferings   on   the   people   but   for   the   process   of
justice dispensation [See State of M.P. v. Bhooraji
(2001) 7 SCC 679].
58. Thus, in summation, we are of the considered
opinion that the exercise of remitting the matter to
Trial Court for de novo trial should be done only
when the appellate Court is satisfied after thorough
scrutiny of records and then recording reason for
the same that the trial is not summons trial but

summary trial. The non­exhaustive list which may
indicate the difference between both modes of trial
is framing of charges, recording of statement Under
Section  313  of the Code, whether trial has been
done in the manner prescribed Under Sections 262­
265  of   Code   of   Criminal   Procedure,   how
elaborately evidence has been adduced and taken
on record, the length of trial etc. In summary trial,
the   accused   is   summoned,   his   plea   is   recorded
Under   Section  263(g)  of   Code   of   Criminal
Procedure   and   finding   thereof   is   given   by   the
Magistrate   Under   Section  263(h)  of   Code   of
Criminal Procedure of his examination.
59. ….
60 to 60.4.….
60.5 Remitting the matter for de novo trial
should be exercised as a last resort and should be
used sparingly when there is grave miscarriage of
justice   in   the   light   of   illegality,   irregularity,
incompetence or any other defect which cannot be
cured at an appellate stage. The appellate Court
should be very cautious and exercise the discretion
judiciously while remanding the matter for de novo
trial.
60.6.  While examining the nature of the trial
conducted by the Trial Court for the purpose of
determining   whether   it   was   summary   trial   or
summons trial, the primary and predominant test

to be adopted by the appellate Court should be
whether it was only the substance of the evidence
that was recorded or whether the complete record
of   the   deposition   of   the   witness   in   their   chief
examination,   cross   examination   and   reexamination
in verbatim was faithfully placed on
record. The appellate Court has to go through each
and every minute detail of the Trial Court record
and   then   examine   the   same   independently   and
thoroughly   to   reach   at   a   just   and   reasonable
conclusion.”
5. Now, let me examine the present matter in the light of
the aforesaid observations of the apex Court.
I have seen the evidence that was adduced before the
court in respect of two witnesses examined by complainant and
their cross­examination. The proceedings were completed in four
days and perusal of the cross­examination of both these witnesses
shows that the detailed cross­examination was made by counsel
for the respondent, so also affidavit on evidence was also in detail
and in fact tenor of the evidence adduced by the complainant and
the cross­examination clearly shows that the case was tried as
summons trial.  In my opinion, merely because summary form was
used for explaining the particulars and evidence was recorded only

in English and not in Marathi, one cannot come to the conclusion
that the format used in recording of the evidence in English could
decide whether a case was summary trial or summons trial.  The
substance of the evidence must be seen.   The evidence of two
witnesses   for   the   complainant   was   recorded   so   also   crossexamination
was also done on four various dates.  Perusal of the
cross­examination shows that full dress trial was held and it is
with that understanding, both the parties joined the trial even till
statement under section 313 of Cr. P. C. also recorded.
6. I have perused the record and I find that the evidence
was recorded, cross­examination was conducted and complete trial
was held.   Perusal of the record nowhere shows that, in fact,
summary trial was held.   In view of above, following order is
passed.
ORDER
(i) Criminal Writ Petition No. 170/2015 is allowed.
(ii) Rule is made absolute in terms of prayer clause (2) of
the order.

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