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2021 (9) TMI 1148 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - failure on the part of the Court of Magistrate to mark the documents as exhibits - vitiation of the proceedings to such an extent that a case for retrial was made out by the Applicant or not - Section 465 of the Cr.P.C. - HELD THAT - In the present case, the Applicant failed to raise any objections to the aforesaid documents brought on record on behalf of the Respondent, the documents stood admitted. The Applicant referred to the documents at the stage of cross-examination of the witness to Respondent no.1 and, therefore, the question of prejudice sought to be raised on behalf of the Applicant, is not only misplaced but it is clearly an afterthought. The Appellate Court was justified in rendering findings against the Applicant in this context. Section 465 of the Cr.P.C. - HELD THAT - In the case of AJAY KUMAR GHOSHAL AND ORS. VERSUS STATE OF BIHAR AND ORS. 2017 (1) TMI 1764 - SUPREME COURT the Hon'ble Court has elaborated upon the conditions in which the Court may direct re-trial/de novo trial. It has been emphasized that a prayer for directing re-trial is not to be casually considered and that the error, omission, or irregularity completed by the accused must be shown to have occasioned a failure of justice. The Hon'ble Supreme Court referred to several judgments and found that a direction for a re-trial/de novo trial should be a last resort and that too only when such a course becomes indispensable - Thus, it becomes clear that if the accused is unable to show the failure of justice, a direction for re-trial/de novo trial cannot be granted. This Court is of the opinion that the failure on the part of the Trial Court in the facts and circumstances of the present case, to mark the documents produced by the Respondent no.1 as exhibits, at worse can be termed as an error/omission/irregularity but, there is nothing to show that the same occasioned failure of justice. The Appellate Court was fully justified in holding that the Applicant failed to demonstrate prejudice caused to him. It is evident that the Application cannot succeed in seeking a direction of retrial/ de novo trial by merely referring to Rules 33 and 34 of Chapter VI of the Criminal Manual or Section 294 of the Cr.P.C. - no case is made out for exercise of revisionary jurisdiction in the facts and circumstances of the present case. The criminal revision is found to be without any merits and deserves to be dismissed. Respondent no.1 is permitted to withdraw the amounts deposited by the Applicant before the Court - the Criminal Revision Application is dismissed.
Issues Involved:
1. Whether the failure to mark documents as exhibits vitiated the trial proceedings. 2. Whether the Applicant suffered any prejudice due to the non-marking of documents. 3. Whether a re-trial/de novo trial is warranted under the circumstances. Detailed Analysis: 1. Failure to Mark Documents as Exhibits: The principal contention raised by the Applicant was that the trial proceedings were vitiated because the documents relied upon by the complainant were not marked as exhibits. The Applicant argued that this constituted a fundamental flaw, warranting the setting aside of the judgments and a re-trial. The Court examined the procedural requirements under Section 294 of the Criminal Procedure Code (Cr.P.C.) and Rules 33 and 34 of Chapter VI of the Criminal Manual, which deal with the marking of documents as exhibits. 2. Prejudice Due to Non-Marking of Documents: The Court noted that the Applicant did not raise any objections to the documents during the trial. The documents were referred to during cross-examination, and specific questions were put to the Applicant under Section 313 of the Cr.P.C. The Court emphasized that the marking of documents is an administrative act and does not determine the proof of the documents. The Court found that the Applicant failed to demonstrate any prejudice caused by the non-marking of documents. The Appellate Court had also rejected this contention, noting that the Applicant did not deny crucial aspects such as his signature on the cheque. 3. Re-Trial/De Novo Trial: The Court referred to the judgment in Ajay Kumar Ghoshal & Ors. vs. State of Bihar & anr. (2017) 12 SCC 699, which elaborates on the conditions under which a re-trial or de novo trial can be ordered. It was emphasized that such orders should be made only in exceptional cases where there is a failure of justice. The Court found that the failure to mark the documents as exhibits, at worst, constituted an error or irregularity but did not occasion a failure of justice. The Applicant's failure to object to the documents during the trial and their reference during cross-examination negated the claim for a re-trial. Conclusion: The Court concluded that the Applicant's contentions were without merit and did not warrant the exercise of revisionary jurisdiction. The criminal revision application was dismissed, and Respondent no.1 was permitted to withdraw the amounts deposited by the Applicant before the Court.
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