SHIBNATH SHARMA Vs. SISIR KUMAR DAS

JUDGEMENT

(1.) The petitioner is the complainant of a case relating to an offence punishable under section 138 of the Negotiable Instruments Act, now pending before the learned Chief Judicial Magistrate, Burdwan. The said case was initially instituted under section 420 of the Indian Penal Code read with section 138 of the Negotiable Instruments Act and the case being a warrant case instituted otherwise than on a police report, procedure prescribed for trial of a warrant case instituted not on a police report was followed and before charge the complainant and his witnesses were examined and after recording of evidence as the Court did not find any material relates to offence punishable under section 420 of the Indian Penal Code no charge thereunder was framed against the opposite party No. 1. However, he was placed on trial to answer a charge under section 138 of the Negotiable Instruments Act and a formal charge was framed and the same was read over and explained to him. Finally, in the said trial the accused/opposite party was found guilty under section 138 of the Negotiable Instruments Act and was sentenced to suffer simple imprisonment for one year and to pay a sum of Rs. 60,000/- to the petitioner as a compensation. The opposite party No. 1 in a criminal appeal challenged the said order of conviction before the Sessions Court and the appellate Court set aside the order of conviction and remanded back the case to the trial Court with a direction to proceed with the trial from the stage of section 251 of the Code of Criminal Procedure. It appears the learned Judge set aside the order of conviction and sentence on the ground although a trial for offence under section 138 of the Negotiable Instruments Act has to be conducted following the procedure prescribe for trial of a summons case but inspite thereof the opposite party No.1 was never examined under section 251 of the Code of Criminal Procedure and on the contrary a formal charge has been framed and thereby the accused was seriously prejudiced. The said order passed by the appellate Court way back in April, 2006 was not challenged and the matter went back to the learned trial Court for re-trial where the same is now pending. In the meantime, the accused was examined under section 251 of the Code and the date for recording of the evidence of the witnesses of the complainant was fixed. On the date so fixed for examination of the complainant the learned trial Court directed the petitioner to file his evidence by way of affidavit. The petitioner in the instant criminal revision challenged the said order.

(2.) Mr. Uday Shankar Chatterjee, the learned counsel for the petitioner assailing the impugned order vehemently urged, that the appellate Court while sent the case back to the trial Court on remand setting aside the order of conviction and sentence recorded against the opposite party No. 1 directed the trial Court to pronounce its Judgment only after examining the accused under section 251 of the Code, which was not done earlier. Except direction of examining the accused under section 251 of the Code no order was made by the appellate Court for examination of the witnesses afresh and as such the trial Court has no option but to give its decision on merit only examine the accused under section 251 of the Code. Thus, the impugned order whereby the learned trial Court directed re-examination of the witnesses afresh after examination of the accused under section 251 of the Code is wholly illegal and is liable to be set aside.

(3.) On the other hand, Mr. Sudipto Moitra, the learned counsel, appearing on behalf of the opposite party No. 1 strenuously contended when the appellate Court setting aside the order of conviction and sentence remanded the case back to the trial Court with a specific direction to proceed from the stage of section 251 of the Code, the only logical interpretation of such order would be that the direction was for a de novo trial and accordingly the trial Court very rightly directed recording of evidence afresh after examining the accused under section 251 of the Code and no mistake has been committed by the learned Court below and as such the order impugned does not warrants any interference.