A.I.S. Cheema, J.@mdashHeard petitioner in person, learned A.P.P. for State and Mr. C.V. Thombre, learned counsel for respondent No. 2.
2. Admit. Heard finally with the consent of parties.
3. In the present Writ Petition, the petitioner has challenged the order passed by Additional Sessions Judge, Aurangabad on 18.12.2013 in Criminal revision No. 262/2012 reversing the order of Judicial Magistrate, First Class, Aurangabad, passed in S.C.C. No. 1093/2007. The Judicial Magistrate, First Class had passed orders below Exh. 164 in S.C.C. No. 1093/2007 that in spite of change of Magistrate, in proceeding u/s 138 of the Negotiable Instruments Act, 1881, it was not necessary to have de novo trial. However, the Sessions Judge reversed the order of Judicial Magistrate, First Class and directed de novo trial. Thus, the present writ petition has been filed.
4. The petitioner (party-in-person) has taken me through the evidence which was recorded in S.C.C. No. 1093/2007. The evidence of the complainant (Quazi Syed Salahuddin) is from Page 198 to 206 of this petition. Another witness examined for the complainant, Qazi Syed Mubeen-ru-Rehman, his evidence is at Page Nos. 207 to 214. Yet another witness is one Shivdas Govindrao, whose evidence is from Page Nos. 215 to 217. The party-in-person referred to the evidence of respondent No. 2 Shaikh Nizam, which is from Page Nos. 218 to 224. It appears, the evidence of accused was yet again recorded which is from Page Nos. 225 to 231. The party-in-person claims that the accused convinced the Magistrate that as he is accused, his evidence should not have been earlier taken on affidavit.
5. The party-in-person is arguing that the order passed by the Magistrate was correct and that the Sessions Judge has wrongly directed de novo trial. According to him, the recording of evidence has been going on for seven years and the statement of the accused u/s 313 of the Criminal Procedure Code was also recorded and arguments were over and even judgment had been dictated by the Magistrate. At that stage, the respondent No. 2-accused started claiming that there should be de novo trial and the proceeding was stalled. The argument is that, the evidence recorded is proper and complete and de novo trial is not necessary.
6. Counsel for respondent No. 2 relied on the judgment of the Supreme Court in the case of
7. I have heard both sides and gone through the evidence recorded in trial Court. What I find is that, the evidence recorded is in all details and it is not substance of the evidence, u/s 264 of the Criminal Procedure Code. It is rather all such evidence as the parties desired to bring on record u/s 254 of the Criminal Procedure Code.
8. In the matter of Indo Rama Synthetics (I) Ltd., Vs. HRK Infra & Oils & ors., reported in 2012(8) LJSOFT 58, and in the matter of Dinesh Thacker Vs. State of Maharashtra & anr., reported in 2013(3) LJSOFT 206, the judgments of this Court, it has been held that although offence punishable u/s 138 of the Negotiable Instruments Act can be tried as summary case, if the evidence recorded is full-fledged evidence, de novo trial is not necessary. In the matter of "Dinesh Thacker" (supra), the judgment in the matter of Nitinbhai Saevatilal Shah (supra) was referred to but this Court, considering facts of that matter, found that the case had not been tried as summary case and in fact it was tried as a regular summons case and thus order of rejection of application of accused for de novo trial, was maintained.
9. In the latest judgment of the Hon''ble Supreme Court in the case of Mehsana Nagrik Sahkari Bank Ltd., reported in 2014 (1) Bankman 3 (SC), High Court had directed de novo trial. In the Hon''ble Supreme Court the judgment in the matter of "Nitinbhai Saevatilal Shah" (supra) was relied on to support order of High Court. Senior Advocate Mr. Huzefa Ahmadi pointed out the evidence to submit that in fact, the evidence had not been recorded in a summary manner. Hon''ble Supreme Court observed in para 6 of the judgment, as under:-
6. 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.
10. Looking to the above observations of the Hon''ble Supreme Court, in the present matter also when perusal of the evidence shows that the evidence has been recorded in full and not in summary manner, there is no justification to hold that there should be de novo trial. The evidence recorded is as in summons case and I find that the order passed by the Judicial Magistrate, First Class was well reasoned and should have been maintained. However, the Sessions Judge appears to have erred in directing de novo trial.
11. For the reasons stated above, the Criminal Writ Petition is allowed. The impugned judgment and order of Additional Sessions Judge, Aurangabad in Criminal Revision No. 262/2012, dated 18.12.2013 is quashed and set aside. The order of the IVth Jt. Judicial Magistrate, First Class, Aurangabad below Exh. 164 in S.C.C. No. 1093/2007, dated 29.10.2012 is restored. The matter in the trial Court is expedited. Rule is made absolute in above terms.
