Susanta Dey vs Babli Majumdar

Susanta Dey ….Appellant(s)

VERSUS

Babli Majumdar & Anr. …Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1. This appeal is directed against the final

judgment and order dated 11.04.2008 passed by

the High Court of Calcutta in Criminal Revision

No.3048 of 2005 whereby the High Court allowed

the criminal revision filed by respondent No.1 Signature Not Verified Digitally signed by herein and while setting aside the order of the ANITA MALHOTRA Date: 2019.03.28 17:24:55 IST

Appellate Court, awarded simple imprisonment for Reason:

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two months to the appellant herein and directed

him to pay a sum of Rs.3 lakhs by way of

compensation to respondent No.1.

2. The appeal involves a short point as would be

clear from the facts mentioned hereinbelow.

3. Respondent No.1 (complainant) filed a

complaint (CR No.298/1995) under Section 138 of

the Negotiable Instrument Act, 1881 (hereinafter

referred to as “the Act”) against the appellant herein

in the Court of Judicial Magistrate, 1 st Court,

Jalpaiguri, West Bengal.

4. By order dated 29.06.2004, the Judicial

Magistrate allowed the complaint and held the

appellant guilty for commission of an offence

punishable under Section 138 of the Act and

sentenced him to undergo simple imprisonment for

two months along with a fine of Rs. 5000/­ and in

default of payment of fine, to further undergo

2 simple imprisonment for one month and also

awarded a compensation of Rs. 3 Lakhs payable to

respondent No.1 (complainant) by the appellant

(accused).

5. The appellant felt aggrieved and filed Criminal

Appeal No. 7/2005) in the Court of

Sessions/Magistrate. By order dated 12.07.2005,

the Appellate Court allowed the appeal and while

setting aside the order dated 29.06.2004 of the

Judicial Magistrate remanded the case to the

Judicial Magistrate for giving an opportunity to both

the parties to adduce fresh evidence and then

decide the complaint.

6. Respondent No.1 (complainant) felt aggrieved

and filed revision in the High Court at Calcutta. By

impugned order, the High Court allowed the

revision and while setting aside the order of the

Appellate Court, awarded simple imprisonment for 2

3 months to the appellant herein and also directed

him to pay Rs. 3 Lakhs by way of compensation to

respondent No.1.

7. It is against this order, the appellant (accused)

has felt aggrieved and filed this appeal by way of

special leave in this Court.

8. Heard Mr. Vijay Kumar, learned counsel for

the appellant, Mr. Pijush K. Roy, learned counsel for

respondent No.1 and Mr. Avishkar Singhvi, learned

counsel for respondent No.2.

9. Having heard the learned counsel for the

parties and on perusal of the record of the case, we

are inclined to allow the appeal and while setting

aside the impugned order remand the case to the

Appellate Court for deciding the appeal afresh on

merits in accordance with law.

10. In our opinion, the High Court was not

justified in allowing the revision filed by respondent

4 No.1 and awarding sentence to the appellant herein

and compensation to respondent No.1. The reasons

are not far to seek as mentioned hereinbelow.

11. First, the only question before the High Court

in the revision filed by respondent

No.1(complainant) was as to whether the Appellate

Court was justified in remanding the case to the

Judicial Magistrate for giving them an opportunity

to adduce evidence. In other words, the question

before the High Court was whether the remand

order of the Appellate Court was legal or not.

12. Second, instead of deciding the

aforementioned question, the High Court proceeded

to decide the complaint itself on its merits and while

allowing the complaint, sentenced the appellant

(accused) with simple imprisonment for 2 months

along with a direction to pay compensation of Rs. 3

5 Lakhs to respondent No.1 (complainant). It was, in

our view, not legally permissible.

13. Third, if the High Court had examined the

issue of remand and held the same to be legal, it

could have directed the Magistrate to decide the

complaint in terms of the directions given by the

Appellate Court. However, if the remand had been

held illegal, the High Court was under a legal

obligation to remand the case to the Appellate Court

to decide the appeal afresh on merits with a view to

decide as to whether the Magistrate was justified in

allowing the complaint and awarding sentence. The

reason being that the Appellate Court once decided

to remand the case to the Magistrate did not go into

the merits of the case.

14. In the light of the aforementioned three

reasons, we are of the considered opinion that the

High Court committed jurisdictional error in

6 allowing the revision filed by respondent No.1. The

impugned order, therefore, deserves to be set aside.

15. We, also perused the order of the Appellate

Court dated 12.07.2005 (running in 25 pages) with

a view to find out as to whether it was justified in

remanding the case to the Magistrate.

16. Having perused the order, we are of the view

that the Appellate Court erred in remanding the

case to the Magistrate.

17. In our view, there was neither any need and

nor any occasion to remand the case to the

Magistrate. In other words, we are of the view that

there was enough material before the Appellate

Court on the basis of which the appeal on merits

could have been decided one way or the other

instead of remanding the case to the Magistrate for

deciding it afresh.

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18. In view of the foregoing discussion, the appeal

succeeds and is accordingly allowed. The impugned

order and the order dated 12.07.2005 of the

Appellate Court are set aside. Criminal Appeal No.

7/2005 filed by the accused (appellant herein) is

restored to its original file.

19. The Appellate Court is directed to decide the

appeal afresh on merits in accordance with law on

the basis of the material already on record.

20. It is, however, made clear that the Appellate

Court will decide the appeal strictly in accordance

with law without being influenced by any

observations made by the Appellate Court in the

order dated 12.07.2005 as also in the impugned

order of the High Court and this order.

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21. Let the appeal be decided within six months

from the date of appearance of the parties before the

Appellate Court on 15.04.2019.

.………...................................J. [ABHAY MANOHAR SAPRE]

…...……..................................J. [DINESH MAHESHWARI] New Delhi;

March 28, 2019

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