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TMI Blog2021 (9) TMI 1148X X X X Extracts X X X X X X X X Extracts X X X X ..... re the Court of Magistrate and, on this sole ground, the impugned judgments and orders deserve to be set aside and the matter needs to be remanded for a re-trial. 3. The Respondent no.1, i.e. the original complainant, had filed a complaint under Section 138 of the aforesaid Act, before the Court of Magistrate against the Applicant stating that the Applicant had taken a loan of 1,00,000/- Rs. and that the same was to be repaid in 60 monthly installments. The loan account was opened and the amount was disbursed to the Applicant on 02.11.2015. On 26.04.2017, the outstanding balance towards the said loan account was Rs.1,07,207/- and the Applicant voluntarily gave a cheque dated 19.05.2017 drawn on Canara Bank, Panaji Branch for the said amount. 4. According to Respondent no.1, the said cheque was returned by the Bank on the ground of "insufficiency of funds". Respondent no.1 issued notice to the Applicant and when the amount was not made good despite receipt of the notice, Respondent no.1 was constrained to file the aforesaid complaint on 05.07.2017 against the Applicant. The Respondent no.1 also filed documents along with the list of documents in the said complaint. 5. The proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n crucial aspects of the matter including his own signature on relevant documents, thereby showing that the contentions regarding the proceedings before the Magistrate having been vitiated, was without any substance. Accordingly, the Appeal was dismissed. 8. Aggrieved by the same, the Applicant filed the present revision application, wherein notice was issued. The Applicant deposited certain amounts before the Court. 9. Mr. Deepak Gaonkar, the learned Counsel appearing for the Applicant, submitted that the failure on the part of the Court of Magistrate to mark documents as exhibits had vitiated the entire proceedings. It was submitted that the Criminal Procedure Code, as well as the Criminal Manual, contemplate the procedure for marking documents as exhibits. The learned Counsel referred to Section 294 of the Criminal Procedure Code (Cr.P.C.) in this context and submitted that as per the law laid down in the context of the said provision, the Court was supposed to mark the documents filed along with the complaint as exhibits so that they could be specifically referred to by the exhibit numbers during the course of the trial and the accused was granted ample opportunity to deal wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Applicant specifically referred to and put those documents to the witness appearing for the Respondent no.1. On this basis, it was submitted that the revision application deserves to be dismissed. The learned Counsel relied on the Judgment of the Hon'ble Supreme Court in the case of Rangappa vs. Mohan 2010(11) SCC 441 and Judgment of this Court in the case of Bama Kathari Patil vs. Rohidas Arjun Madhavi 2004(2) MhLJ 752 as also Judgment of the Delhi High Court in the case of Sudir Enginiring Company vs. Nitco Roadways Limited 1995(34) DRJ 86. 12. Heard learned Counsel for the rival parties and perused the material on record. The principal question that arises for consideration is as to whether failure on the part of the Court of Magistrate to mark the documents as exhibits vitiated the proceedings to such an extent that a case for retrial was made out by the Applicant. 13. A perusal of the record shows that the Respondent filed the complaint and along with the complaint a list of documents was also filed. The witness i.e. the Branch Manager of the Respondent no.1, who deposed on affidavit in evidence in support of the complaint in para 17 of the affidavit stated as follows : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts during the process of cross-examination, but such documents were put to the Applicant under Section 313 of the Cr.PC. On this basis, it was found that the Applicant had failed to demonstrate the prejudice caused to him thereby rejecting the prayer for re-trial in the facts and circumstances of the present case. 16. This Court has considered the aspect of prejudice in the facts and circumstances of the present case, particularly because the Applicant has been convicted and sentenced under the provisions of the said Act on the basis of the material brought on record on behalf of the Applicant, which was referred to and relied upon by the Courts below. In order to examine the aspect of prejudice, the emphasis placed on Section 294 of the Cr.P.C., on behalf of Respondent no.1, needs to be considered. 17. In the judgment in the case of Bipin Shantilal Panchal (supra), the Hon'ble Supreme Court has held that when an objection is raised during the course of taking evidence regarding the admissibility of any material, the Trial Court can make a note of such an objection and mark the objected document tentatively as an exhibit in the case, subject to such objections to be decided a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dmissibility of the documents in question. In fact, as noted above, not only were the documents not objected to but the Counsel representing the Applicant referred to such documents while cross-examining the witness of the Respondent. Questions pertaining to the documents were also put to the Applicant under Section 313 of Cr.P.C. 21. In this context, the judgments relied upon by the learned Counsel appearing for the Respondent, are irrelevant because it is laid down in the case of Bama Kathari Patil (supra), of this Court, that exhibiting a document is an administrative act and that putting an exhibit number on a document, does not mean that it is proved and that it is required to be proved in accordance with the provisions of the Evidence Act, 1872. 22. In the case of Rangappa vs. Mohan (supra), the Hon'ble Supreme Court referred to the presumption against the accused under Section 139 of the said Act, particularly when the signature on the cheque was admitted. In the present case, there is nothing to show that the Applicant at any stage disputed the signature on the cheque and, therefore, the presumption is clearly operative against the Applicant. 23. In the case of Sudir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. 'De novo' trial means a "new trial" ordered by an appellate court in exceptional cases when the original trial failed to make a determination in a manner dictated by law. The trial is conducted afresh by the court as if there had not been a trial in first instance. Undoubtedly, the appellate court has power to direct the lower court to hold 'de novo' trial. But the question is when such power should be exercised. As stated in Ukha Kolhe vs. State of Maharashtra (1964) SCR 926, the Court held that: "11. An order for retrial of a criminal case is made in exceptional cases, and not unless the appellate court is satisfied that the Court trying the proceeding had no jurisdiction to try it or that the trial was vitiated by serious illegalities or irregularities or on account of misconception of the nature of the proceedings and on that account in substance there had been no real trial or that the Prosecutor or an accused was, for reasons over which he had no control, prevented from leading or tendering evidence material to the charge, and in the interests of justice the appellate Court deems it appropriate, having regard to the circumstances of the case, that the accused should be p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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