ROOPCHAND DARYANOMAL JANI Vs. SANJAY TARACHAND HARDWANI

JUDGEMENT

(1.) Rule. Rule returnable forthwith. Heard finally by consent of the parties. The applicant-complainant in Summary Case No. 4271/2008, pending on the file of 23rd J.M.F.C. & Spl Court for offences under Section 138 N.I. Act, Nagpur prays for quashing the order dated 16.12.2011 ordering de novo trial in said case. The said case was initiated upon the complaint made by the applicant on the accusation of non applicant no. 1 having committed an offence under section 138 of the Negotiable Instruments Act. Considering the nature of controversy involved, it is not necessary to state in detail subject matter of said case, except that said accusation was founded on the count of failure of non applicant no. 1 to pay the demanded amount mentioned in the demand notice served upon him after the cheque given by him for the liability was dishonoured and returned by the banker.

(2.) Mr. Dani, learned counsel for the applicant, submitted that in said case, right from the commencement, the case was not proceeded in the summary manner. It is submitted that the officer presiding over said Court after explaining the accusation to the non applicant no. 1 and the non applicant no. 1 pleading not guilty, recorded the evidence of the first witness by taking on record his affidavit of the evidence and recording in detail the cross examination made on behalf of non applicant. It is further submitted that, thereafter, said Presiding Officer was transferred and his successor in the similar manner continued with the case by recording evidence in similar manner of two more witnesses, examined on behalf of the applicant. Mr. Dani further submitted that thereafter even said Presiding Officer was also changed and when the matter was fixed for adducing the evidence on behalf of the non applicant, the application was made by non applicant no. 1 for referring the disputed document to the handwriting expert. It is, thus, contention of the Mr. Dani that said case has never proceeded by following the procedure meant for summary trial and was conducted by following the procedure meant for summons trial.

(3.) Mr. Dani, learned counsel for the applicant, further submitted that thereafter the third Presiding Officer seized with the said case, passed the order, which is under challenge in this petition. It is submitted that by placing reliance upon the decision in the case of Nitinbhai Saevatilal Shah & Anr...vs.. Manubhai Manjibhai Panchal & anr., 2011 AIR(SC) 3076 the impugned order was passed. It is submitted that since the case in question was not tried as summary case, the trial court completely misconstrued the ratio of decision in Nitinbhai's case and erred in ordering de novo trial. It is submitted that since the case has not been tried as a summary case, the order impugned be quashed and set aside. It is submitted that passing of such an order on the contrary would result in causing further delay as the applicant will have to once again adduce evidence. Mr. Dani, learned counsel, further submitted that since the case was tried as summons case and as such evidence recorded in the case is in entirety available to the present Presiding Officer and so also the non applicants having not objected for proceeding in the case in such manner, hardly any prejudice would be caused to them, if the case is proceeded in such a manner as visualized in the decision relied on.