In the present case, the complaint was
filed on 3/3/1999 and the evidence on affidavit was filed by the
Complainant on 27/12/2005. The petitioner–accused started
cross examination on 9/1/2006 and continued till 8/3/2011.
The Petitioner – accused has consumed 18 sittings for cross
examination of complainant. If these dates are taken into
consideration, it is apparent that the case is not tried as a
summary case and in fact it is being tried as a regular
summons case. Although proceeding for an offence
punishable u/s 138 can be tried as a summary case u/s 143 of
N.I. Act, the Court below has preferred to try it as a regular
summons case.
I find that the Court below has rightly rejected the
application of the accused for de-novo trial of the case
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 3745 OF 2011
Dinesh Thacker. ..Petitioner.
Versus
State of Maharashtra & Anr. ..Respondents.
Coram : RANJIT MORE, J.
Date : December 12, 2011.
P. C. :
1. Heard learned counsel for the petitioner and respondent
no.2 respectively. The present writ petition filed under article
227 of Constitution of India, 1950 challenges the order passed
by the Metropolitan Magistrate, 7
th
Court, Dadar on 2/12/2011
in a case filed under section 138 r.w. 141 of N.I. Act, 1881,
being Criminal Case No. 3369/SS/2005. By the said order, the
petitioner's application for de-nova trial is rejected. The
petitioner is the accused in the complaint instituted by
respondent no.2-complainant. The said complaint was filed on
3/3/1999 and it is at the stage of trial. The petitioner filed the
above said application relying upon the provision of section
326(3) of Code of Criminal Procedure, 1973. The contention of
the petitioner is that the present case is being tried as a
summary case therefore provisions of section 326(3) are
applicable and once the Magistrate is transferred, the case has
to be heard de-novo. As stated above, the said application is
rejected and therefore the present writ petition.
2. Learned counsel Mr.Mundargi appearing for the petitioner
to substantiate his argument, relied upon the decision of Apex
Court in Nitinbhai Saevatilal Shah & Anr vs. Manubhai
Manjibhai Panchal and Anr [2011(4) BCR (cri.) 9]. Mr. Marwadi,
learned counsel for respondent no.2, on the contrary relied
upon the judgment of learned Single Judge of this Court in
Shivaji Sampat Jagtap vs. Rajan Hiralal Arora and Anr [2006 All
MR (Cri) 2612] and submitted that so far as the present case is
concerned, same is not being tried in a summary way and in
fact it is being tried as a summons case and therefore
provision contained in sub-section (3) of section 326 of Cr.P.C,
1973 would not be applicable.
3. In Nitinbhai (supra), the accused was convicted for the
offence punishable under section 138 of N.I. Act. The
conviction was confirmed by the lower appellate Court as well -:
as by the High Court. The Supreme Court quashed the
conviction relying upon the provision of section 326(3) of
Cr.P.C, 1973. Perusal of the said judgment makes it clear that
the case was tried as a summary case, therefore, ratio of the
said decision cannot be made applicable to the present case.
4. I have gone through the ratio laid down in Shivaji Sampat
Jagtap’s case (supra). The facts of that case and present case
are similar. The learned Single Judge of this Court in that case
refused the prayer of the accused for de-novo trial on the
ground that case was tried as a summons case and therefore
the provision of sub-section (3) of section 326 of the Code of
Criminal Procedure, 1973 is not applicable. In my view, ratio of
this decision can squarely be made applicable to the present
case.
5. Having considered the rival submissions, I do not find
merit in the petition. In the present case, the complaint was
filed on 3/3/1999 and the evidence on affidavit was filed by the
Complainant on 27/12/2005. The petitioner–accused started
cross examination on 9/1/2006 and continued till 8/3/2011.
The Petitioner – accused has consumed 18 sittings for cross
examination of complainant. If these dates are taken into
consideration, it is apparent that the case is not tried as a
summary case and in fact it is being tried as a regular
summons case. Although proceeding for an offence
punishable u/s 138 can be tried as a summary case u/s 143 of
N.I. Act, the Court below has preferred to try it as a regular
summons case.
6. I find that the Court below has rightly rejected the
application of the accused for de-novo trial of the case. Taking
overall circumstances into consideration and especially
considering the fact that proceeding is pending since 1999, it
would not be just and proper to interfere with the impugned
order. In that view of the matter, writ petition is dismissed.
(RANJIT MORE, J.)
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