Dismissed

Pandharinath Ramkrishna Naphade v. Suresh Ganpat Narote and Anr.

Bombay HC4 Apr 2013APL/95/2013

Case brief

AI extract

What is this about?

The High Court rejected the applicant's appeal against the Appellate Court's order of de novo trial in a cheque bounce case. The Court held the trial Judge proceeded with the partially recorded evidence, curing earlier defects. The application was dismissed as devoid of merit.

What did the court decide?

Application under Section 482 CrPC dismissed; Trial Judge directed to dispose of the matter within three months treating it as part-heard.

Pandharinath Ramkrishna Naphade Vs Suresh Ganpat Narote and… — Cheque Dishonour | Bombay HC (2013)

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vrd 1 APL95/13

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPLICATION NO.95 OF 2013

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Mr Pandharinath R. Naphade ...Applicant v/s Shri Suresh G. Narote and anr. ...Respondents

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Mr M.K. Kocharekar for Applicant. Mr A.S. Khandeparkar for Respondent No.1. Mr S.S. Pednekar, APP for State.

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CORAM : S.C. DHARMADHIKARI, J.

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DATE : APRIL 4, 2013.

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P.C. :-

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Mr Kocharekar, learned counsel appearing on behalf of the applicant submitted that this is a fit case to exercise powers under section 482 of Cr.P.C. as serious prejudice and miscarriage of justice is the outcome of an order of de novo trial by the Appellate Court.

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The lower Appellate Court in this case has directed de novo trial on two counts firstly, that the Successor Magistrate could not have proceeded with the case from the stage at which the Predecessor Magistrate left it. Thus, the learned Trial Judge ought to have conducted de novo trial. Secondly, the learned Judge has not adhered to the provisions, particularly under section 313 of Cr.P.C. Of recording to the statement of the accused.

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vrd 2 APL95/13

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Mr Kocharekar submits that on both counts, the order passed by the lower Appellate Court is illegal. He relies on the judgment of the Hon'ble Supreme Court in case of Nitinbhai S. Shah and anr. v/s Manubhai M. Panchal and anr., reported in 2011(3) SCC (Cri) 788 rendered in the proceedings under section 138 of Negotiable Instruments Act 1881, but the attention of the Hon'ble Supreme Court was not invited to section 143 of the said Act which in categorical terms lays down the procedure which is to be followed by the learned Magistrate trying a case for an offence punishable under section 138 of the Negotiable Instruments Act is under sections 262 to 265 (both inclusive) of Cr.P.C. Apart from this, the subsection and proviso thereto will throw light on the power of the Successor Magistrate to proceed with the case from the stage left by his Predecessor Magistrate. However, according to Mr Kocharekar, it is his discretion and at the most the omission amounts to irregularity but not illegality.

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Accepting Mr Kocharekar's submissions would amount to disobeying and disregarding a binding judgment. It cannot be brushed aside or ignored on the spacious plea that the attention of the Hon'ble Supreme Court was not invited to a particular provision or some aspect or argument has not been considered. That is not a ground to brushing aside a binding judgment.

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Apart therefrom in this case if the order of the lower appellate Court dated 3^rd January 2013 is perused in its entirety, it has been clarified by the learned

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vrd 3 APL95/13

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Judge that even though the matter is remanded, the learned Judge would have proceeded with it as a part heard case. The evidence was partly recorded by one Magistrate and the Successor recorded the evidence of other witness, however, while rendering the judgment, the Trial Magistrate has relied upon the evidence recorded by the Predecessor Magistrate. Apart therefrom, the learned Judge has found that the questions that were posed to the accused while recording his statement, were multiple, too complex and without inviting the accused's attention to the facts. In these circumstances, the acquittal was vitiated and the learned Judge found it fit to remand the case because the impugned order has resulted in failure of justice. This is not a fit case to interfere in inherent jurisdiction. This application is devoid of any merits and is dismissed. The learned Judge to whom the matter is assigned shall now dispose off the same as expeditiously as possible and within a period of three months from the date of receipt of copy of this order. This is order is passed because the complainant is a senior citizen.

Pandharinath Ramkrishna Naphade v. Suresh Ganpat Narote and Anr.

Case brief

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Pandharinath Ramkrishna Naphade v. Suresh Ganpat Narote and Anr.

Case brief

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