2021 (11) TMI 275 - HC - Indian Laws

Dishonor of Cheque - matter proceeded in summary triable manner or not - cross-examination by defence side or not - HELD THAT - The applicant had given an application vide Exh. 38 before the trial court under section 236 of the Cr.P.C. requesting the court for de novo trial as the plea was recorded by the predecessor Magistrate and trial could not be concluded. Further, it appears that the trial court after hearing both the parties came to the conclusion that the plea was recorded under section 251 of the Code of Criminal Procedure i.e. as per summons trial procedure and thereafter, the complainant is examined. Thereafter, he was cross-examined by the respondent no. 2. Further statement was also recorded of the respondent no. 2. The trial court has held that the matter was not proceeded in summary triable manner. It appears that by not applying the ration laid down in the case of Nitinkumar Saventilal, learned trial court has rejected the application. The deposition of the complainant was also brought on record which speaks that he was examined but unfortunately right to cross-examine was closed by the Court and thereafter bank witness was also examined and such witness was cross-examined by the defence side. And thereafter, at the request of the complainant, further statement of the respondent no. 2 was recorded. The case was tried by the Metropolitan Court as summons triable case as provided under the provisions of Code of Criminal Procedure. It further appears that during the entire trial no objection was raised by the accused in the trial and after completing recording evidence from prosecution, the entire trial, an application Exh. 38 was submitted by the accused persons with a request to record the plea under section 326 of Code of Criminal Procedure. The Honourable Court has held in Criminal Appeal No. 968-971 of 2013 that, the evidence in that case was recorded in full and not in a summary manner and therefore the prayer of the accused persons cannot be accepted in the present case also when the plea was recorded under section 256 of the Code of Criminal Procedure - As the matter is pending before the trial court since 2008 and was fixed at the stage of final arguments, the learned Metropolitan Magistrate shall proceed with the matter and decide the same within a period of four months from the date of receipt of this order. Application disposed off.

Summary

Issues involved:
1. Quashing of impugned order for de novo trial
2. Expedite the trial of Criminal Case No. 610/08

Issue 1: Quashing of impugned order for de novo trial:
The applicant filed a petition seeking to quash the order directing a de novo trial in Criminal Case No. 610/08. The original complaint was under section 138 of the Negotiable Instruments Act, alleging dishonor of cheques issued by the respondent. The applicant argued that all legal formalities were completed, including recording the plea and filing evidence, and the respondent's right to cross-examine was closed due to non-compliance. The Additional City Sessions Judge allowed a revision application for de novo trial, citing non-compliance with mandatory provisions of the NI Act. The applicant contended that the impugned order contradicted previous judgments and requested its quashing.

Issue 2: Expedite the trial of Criminal Case No. 610/08:
The respondent had filed an application for de novo trial under section 236 of the Cr.P.C., stating that the plea was recorded by the predecessor Magistrate, and the trial was incomplete. The trial court found that the matter was not conducted in a summary triable manner, and the accused did not object until the trial's late stage. The court referred to previous judgments emphasizing that objections to trial procedures must be raised timely. The court held that the evidence was recorded in full, not summarily, and rejected the request for a fresh trial. Consequently, the impugned order directing a de novo trial was quashed, and the trial court was instructed to proceed and conclude the matter within four months.

This detailed analysis of the judgment highlights the legal arguments, procedural history, and the court's reasoning behind quashing the order for a de novo trial and expediting the pending trial.