High Court of KeralaSingle Judge2018-06-05Crl.R.P. disposed of as above.

Benhur Trades and Investments Pvt. Ltd. v. Shakuntala Agarwal and State of Kerala

Case / Petition Number:Crl.Rev.Pet.No. 1503 of 2013

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: B. Sudheendra Kumar
Judgment Date: 2018-06-05
Court Decision / Holding: The appellate court’s judgment setting aside the conviction and remanding for de novo trial is set aside. The matter is remitted to the appellate court for fresh disposal of the appeal in accordance with law, with directions to dispose of the matter expeditiously, within four months from the date fixed for appearance, which is 12-09-2018.
Final Disposition: Crl.R.P. disposed of as above.

Parties to the Case

Appellants / Petitioners

M/S. Benhur Trades and Investments Pvt. Ltd., represented by its Power of Attorney Holder K.B. Prakash Kumar

Respondents

Shakuntala Agarwal, Proprietrix of M/S Jagadamba Trading Company, Kochi
State of Kerala, represented by the Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri. A.A. Mohammed Nazir

Counsels for Respondents

• Sri. Ashik K. Mohammed Ali (Public Prosecutor)
• Sri. E.C. Bineesh

Case Synopsis & Summary

This revision petition arises from a conviction under Section 138 of the Negotiable Instruments Act, 1881 in C.C. No. 248 of 2005 before the Judicial Magistrate of First Class-II, Kochi. The trial court convicted the accused; upon appeal, the Sessions/Adhoc-1 court (Crl.Appeal No. 256 of 2012) set aside the conviction and remanded the case for de novo trial. The revision petitioner challenged the appellate order, arguing that a de novo trial is unwarranted and relies on the Supreme Court authority in J.V. Baharuni and Another v. State of Gujarat and Another, which emphasizes that remand for de novo trial should be a last resort and only when grave miscarriage of justice cannot be corrected on appeal. The respondents supported the remand, arguing that the nature of the trial—recorded in detail and cross-examined elaborately—may necessitate a fresh evaluation, and that Section 326(3) Cr.P.C. should apply when needed. The High Court, after considering Nitinbhai Saevatilal Shah v. Manubhai Manjibhai Panchal and the Baharuni doctrine, held that the appellate court’s remand for de novo trial was not justified because the trial record shows a substantially elaborate deposition and cross-examination, indicating a non-summons-type trial. Consequently, the court set aside the appellate remand and remitted the matter to the appellate court for fresh disposal in accordance with law, directing expeditious disposal within four months and appearance on 12-09-2018.

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act, 1881Section 326(3) Cr.P.C.

Legal Doctrines & Maxims

Remitting the matter for de novo trial should be exercised as a last resort and should be used sparingly when there is grave miscarriage of justice in the light of illegality, irregularity, incompetence or any other defect which cannot be cured at an appellate stage.
The appellate court should be very cautious and exercise the discretion judiciously while remanding the matter for de novo trial.
While examining the nature of the trial, the primary test is whether it records the substance of evidence or the complete deposition (chief, cross, and re-examination) in verbatim; an elaborate verbatim record indicates a non-summons trial rather than a summary trial.

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner contends that the de novo trial ordered by the appellate court is not sustainable. Relying on J.V. Baharuni v. State of Gujarat, and the proposition that remand for de novo trial is a last resort, and that where the trial record demonstrates elaborate deposition and cross-examination, the successor Magistrate can rely on the predecessor’s record, the petitioner argues that the trial should not be remitted for de novo and that the conviction should be considered on the existing record.

Contentions of Respondents

The respondents contend that the matter may require re-evaluation through a de novo trial depending on the nature of the trial and the completeness of the record; they rely on the appellate court’s reasoning and on Baharuni for the necessity (in certain circumstances) of remanding for a de novo proceeding, and thus support the appellate order to remand.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Nitinbhai Saevatilal Shah and Another v. Manubhai Manjibhai Panchal and Another	2011 (3) KHC 840	Mentioned Only	Cited by the revision petitioner to challenge the approach to de novo remand; not relied upon by the High Court in its final reasoning, which centers on Baharuni.
J.V. Baharuni and Another v. State of Gujarat and Another	(2014) 10 SCC 494	Positive	Cited and relied upon for the principle that remand for de novo trial should be a last resort and that the appellate court must carefully assess the nature of the trial; heavily influential in the High Court’s reasoning and ultimate disposition.

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Extracted Judgment Text

Exact text extracted from official judgment records.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **TUESDAY ,THE 05TH DAY OF JUNE 2018 / 15TH JYAISHTA, 1940** **Crl.Rev.Pet.No. 1503 of 2013** **CRA 256/2012 of ADDITIONAL SESSIONS COURT (ADHOC-1), ERNAKULAM DATED 20-04-2013 CC 248/2005 of J.M.F.C.-II, KOCHI DATED 22-02-2012** ## **REVISION PETITIONER/S:** **M/S.BENHUR TRADES AND INVESTMENTS PVT. LTD. MAS BUILDING ERNAKULAM, KOCHI - 18, REP. BY ITS POWER OF ATTORNEY HOLDER K.B.PRAKASH KUMAR.** **BY ADV. SRI.A.A.MOHAMMED NAZIR** ## **RESPONDENT/S:** |**1**|**SHAKUNTALA AGARWAL**| |---|---| ||**PROPRIETRIX, M/S.JAGADAMBA TRADING COMPANY, 86**| ||**1ST FLOOR, PEELIANICKAL CANAL ROAD, KOCHI - 20.**| |**2**|**STATE OF KERALA**| ||**REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF**| ||**KERALA, ERNAKULAM.**| **BY ADV. SRI.ASHIK K.MOHAMMED ALI** PUBLIC PROSECUTOR SRI. E.C. BINEESH **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05.06.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **B. SUDHEENDRA KUMAR, J.** ------------------------------------------------- **Crl.R.P. No. 1503 of 2013** ------------------------------------------------- **Dated this the 5[th] day of June, 2018** ## **O R D E R** The complainant in C.C. No. 248 of 2005 on the files of the court of the Judicial Magistrate of First Class – II, Kochi, has filed this Revision Petition, challenging the judgment and order passed by the appellate court in Crl.Appeal No. 256 of 2012, setting aside the judgment of the trial court and remanding the case to the trial court for de novo trial. ## 2. Heard both sides. 3. The offence alleged in this case is the offence **Crl.R.P. No. 1503 of 2013** -2- under Section 138 of the Negotiable Instruments Act, 1881 (“the N.I.Act” for short). 4. The trial Court convicted and sentenced the accused under Section 138 of the N.I.Act, against which the accused filed the above Criminal Appeal. 5. It was argued before the appellate court that the evidence in the case was recorded by a Magistrate and subsequently, the case heard by his successor-in-office and hence the conviction and sentence can not be sustained in view of the decision of the Apex Court in Nitinbhai Saevatilal Shah and Another v. Manubhai Manjibhai Panchal and Another [2011 (3) KHC 840]. **Crl.R.P. No. 1503 of 2013** -3- 6. The appellate court, after going through the provisions of Section 326 (3) and the ratio in Nitinbhai (supra) set aside the conviction and sentence and remanded the matter to the trial court for de novo trial. The learned counsel for the revision petitioner relied on the decision of the Apex Court in J.V. Baharuni and Another v. State of Gujrat and Another [(2014) 10 SCC 494] and argued that the denovo trial ordered by the trial Court cannot be sustained. 7. In Baharuni (supra), the Apex Court held thus:- “While examining the nature of the trial conducted by the trial court for the purpose of determining whether it was summary trial or summons trial, the primary and predominant test to be **Crl.R.P. No. 1503 of 2013** -4- adopted by the appellate court should be whether it was only the substance of the evidence that was recorded or whether the complete record of the deposition of the witness in their chief-examination, cross-examination and re-examination in verbatim was faithfully placed on record. The appellate court has to go through each and every minute detail of the trial court record and then examine the same independently and thoroughly to reach at a just and reasonable conclusion”. The Apex court further held in Baharuni (supra) thus:- “Remitting the matter for de novo trial should be exercised as a last resort and should be used sparingly when there is grave miscarriage of justice in the light of illegality, irregularity, incompetence or any other defect which cannot be cured at an appellate stage. The appellate court should be very cautious and exercise the discretion **Crl.R.P. No. 1503 of 2013** -5- judiciously while remanding the matter for de novo trial”. 8. Where in a case that can be tried summarily, if the court records the evidence elaborately and in verbatim and gives defence full scope to cross-examine the witness, such procedure adopted is indicative that it is not a summary procedure. Therefore, before arriving at any conclusion with regard to the nature of the trial, there should be proper application of judicial mind and evidence on record must be thoroughly perused. When a case in substance is not tried in summary way, though triable summarily and is tried as regular summons case, successor Magistrate need not hear the case de novo and can act on the evidence recorded by his predecessor to decide the case. -6- **Crl.R.P. No. 1503 of 2013** 9. In this case, the evidence of PW1, PW2 and DW1 were recorded elaborately and the opposite party had cross-examined at length. The records of the trial court would adequately show that regular trial was undertaken in the above case though it was a case triable summarily. Since the deposition of witnesses in their chief-examination, cross-examination and reexamination would show that the evidence was recorded in verbatim, it cannot be said that the trial court tried the case summarily and in the said circumstances, the provisions of Section 326 (3) Cr.P.C. is not applicable to the case on hand. In the said circumstances, the appellate court was not justified in remitting the matter to the trial court for de novo trial. In view of the above **Crl.R.P. No. 1503 of 2013** -7- reason, the judgment and order passed by the appellate court cannot be sustained and consequently, I set aside the same and remit the matter to the appellate court for fresh disposal of the appeal in accordance with law. This being a matter of the year 2005, the appellate court is directed to dispose of the appeal as expeditiously as possible and at any rate, within a period of four months from the date fixed for the appearance of the parties before the appellate court. The parties shall appear before the appellate court on 12-09-2018, without any further notice. ## This Crl.R.P. stands disposed of as above. Dated this the 5th day of June, 2018. ## **Sd/-B. SUDHEENDRA KUMAR, JUDGE** . ani/