NARSINGBHAI JETHABHAI AAKOLIYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Though notice of rule of admission has already been served upon private respondent No.2, he has not put his appearance for about last four years.

(2.) Heard learned Advocate Mr. P. P. Majmudar for the appellant and learned Additional Public Prosecutor Ms. Hansa Punani for the respondent State.

(3.) Learned Advocate for the appellant states that learned appellate Court, while dealing with the criminal appeal, believed that the private complaint filed under the provisions of Negotiable Instruments Act, 1881 was tried in a summary manner as provided under the provisions of the said Act and under the said belief, as the trial proceeded against subsequent magistrate, placing reliance upon the celebrated decision in Nitinbhai Sevantilal Shah and anr. v. Manubhai Manjibhai Panchal and anr. [(2011) 9 SCC 638], the learned appellate Court remanded the matter for de novo trial. Learned Advocate for the appellant points out that upon institution of the complaint, learned Magistrate issued summons under Section 204 of the Criminal Procedure Code and thereafter recording the plea, regular procedure as envisaged under the Criminal Procedure Code for conducting the summons trial is adopted and nowhere, it was mentioned that any of the Magistrate who conducted and tried the case has ever adopted a summary trial as such. Consequently therefore, the ratio laid down in the celebrated decision in Nitinbhai Sevantilal Shah (supra) was not at all applicable. Learned Advocate for the appellant further points out that the record and proceedings clearly indicates that the complainant has examined two witnesses and the accused has also examined two witnesses in his defence and a detailed summons trial is conducted and the trial was not at all summary in nature. He states that therefore, under the premises of wrong interpretation, de novo trial came to be ordered by learned appellate Court.