Supreme Court of India
SUSANTA DEY versus BABLI MAJUMDAR & ANR. on 28 March 2019
[2019] 2 S.C.R. 1065
SUSANTA DEY
v.
BABLI MAJUMDAR & ANR.
(Criminal Appeal No.2103 of 2008)
MARCH 28, 2019
[ABHAY MANOHAR SAPRE ANDDINESH MAHESHWARI, JJ.]
Revision:
Jurisdiction of High Court – Cheque bouncing matter whereinappellant held guilty, however in appeal, the appellate courtremanded the case to the Magistrate for giving opportunity to theparties to adduce evidence – Revision thereagainst by complainantwherein the High Court set aside the order of the appellate courtand passed order of conviction – Justification of – Held: High Courtcommitted jurisdictional error in allowing the revision – Questionbefore the High Court was whether the remand order of the appellatecourt was legal or not – Instead of deciding the said question, theHigh Court proceeded to decide the complaint itself on its meritsand while allowing the complaint, sentenced the appellant whichwas not legally permissible – Furthermore, the appellate court wasnot justified in remanding the case to the magistrate – There wasenough material before the appellate court to decide the appeal onmerits – Thus, the order passed by the High Court and the appellatecourt set aside.
Allowing the appeal, the Court
HELD: 1.1 The High Court was not justified in allowingthe revision filed by respondent No.1 and awarding sentence tothe appellant and compensation to respondent No.1. The onlyquestion before the High Court in the revision filed by respondentNo.1(complainant) was as to whether the appellate court wasjustified in remanding the case to the Judicial Magistrate forgiving them an opportunity to adduce evidence. In other words,the question before the High Court was whether the remand orderof the appellate court was legal or not. Instead of deciding thesaid question, the High Court proceeded to decide the complaint
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1066 SUPREME COURT REPORTS [2019] 2 S.C.R.
Aitself on its merits and while allowing the complaint, sentencedthe appellant (accused) with simple imprisonment for 2 monthsalong with a direction to pay compensation of Rs. 3 Lakhs torespondent No.1 (complainant). It was, not legally permissible.If the High Court had examined the issue of remand and held theBsame to be legal, it could have directed the Magistrate to decidethe complaint in terms of the directions given by the appellatecourt. However, if the remand had been held illegal, the HighCourt was under a legal obligation to remand the case to theappellate court to decide the appeal afresh on merits with a viewto decide as to whether the Magistrate was justified in allowingCthe complaint and awarding sentence. The reason being that theappellate court once decided to remand the case to the Magistratedid not go into the merits of the case. Thus, the High Courtcommitted jurisdictional error in allowing the revision filed byrespondent No.1. [Paras 10-14][1068-C-H]D
1.2 The appellate court erred in remanding the case to theMagistrate. There was neither any need and nor any occasion toremand the case to the Magistrate. There was enoughmaterial before the appellate court on the basis of which the appealon merits could have been decided one way or the otherEinstead of remanding the case to the Magistrate for deciding itafresh. The impugned order and the order of the appellate courtare set aside. The case is remanded to the appellate court todecide the appeal afresh on merits in accordance with law.[Paras 15, 17, 18, 19][1069-A-D]F
CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 2103 of 2008.
From the Judgment and Order dated 11.04.2008 of the High Courtof Calcutta in Criminal Revision No. 3048 of 2005.
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Vijay Kumar, Ms. Aparna Jha, Advs. for the Appellant.
Pijush K. Roy, Ms. Kakali Roy, Sunil Kumar Verma, AvishkarSinghvi, Suhaan Mukerji, Ms. Astha Sharma, Nipun Katyal, Rahul Arya(for M/S. PLR Chambers and Co.), Advs. for the Respondents.
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The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J.
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1. This appeal is directed against the final judgment and orderdated 11.04.2008 passed by the High Court of Calcutta in CriminalRevision No.3048 of 2005 whereby the High Court allowed the criminalrevision filed by respondent No.1 herein and while setting aside the orderof the Appellate Court, awarded simple imprisonment for two months tothe appellant herein and directed him to pay a sum of Rs.3 lakhs by wayof compensation to respondent No.1.
2. The appeal involves a short point as would be clear from thefacts 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 theCourt of Judicial Magistrate, 1[st] Court, Jalpaiguri, West Bengal.
4. By order dated 29.06.2004, the Judicial Magistrate allowedthe complaint and held the appellant guilty for commission of an offencepunishable under Section 138 of the Act and sentenced him to undergosimple imprisonment for two months along with a fine of Rs. 5000/- andin default of payment of fine, to further undergo simple imprisonmentfor one month and also awarded a compensation of Rs. 3 Lakhs payableto 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 orderdated 29.06.2004 of the Judicial Magistrate remanded the case to theJudicial Magistrate for giving an opportunity to both the parties to adducefresh evidence and then decide the complaint.
6. Respondent No.1 (complainant) felt aggrieved and filed revisionin the High Court at Calcutta. By impugned order, the High Court allowedthe revision and while setting aside the order of the Appellate Court,awarded simple imprisonment for 2 months to the appellant herein andalso directed him to pay Rs. 3 Lakhs by way of compensation torespondent No.1.
7. It is against this order, the appellant (accused) has felt aggrievedand filed this appeal by way of special leave in this Court.
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A8. Heard Mr. Vijay Kumar, learned counsel for the appellant, Mr.Pijush K. Roy, learned counsel for respondent No.1 and Mr. AvishkarSinghvi, learned counsel for respondent No.2.
9. Having heard the learned counsel for the parties and on perusalof the record of the case, we are inclined to allow the appeal and whileBsetting aside the impugned order remand the case to the Appellate Courtfor deciding the appeal afresh on merits in accordance with law.
10. In our opinion, the High Court was not justified in allowing therevision filed by respondent No.1 and awarding sentence to the appellantherein and compensation to respondent No.1. The reasons are not far toCseek as mentioned hereinbelow.
11. First, the only question before the High Court in the revisionfiled by respondent No.1(complainant) was as to whether the AppellateCourt was justified in remanding the case to the Judicial Magistrate forgiving them an opportunity to adduce evidence. In other words, theDquestion before the High Court was whether the remand order of theAppellate Court was legal or not.
12. Second, instead of deciding the aforementioned question, theHigh Court proceeded to decide the complaint itself on its merits andwhile allowing the complaint, sentenced the appellant (accused) withEsimple imprisonment for 2 months along with a direction to paycompensation of Rs. 3 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 remandand held the same to be legal, it could have directed the Magistrate todecide the complaint in terms of the directions given by the AppellateFCourt. However, if the remand had been held illegal, the High Courtwas under a legal obligation to remand the case to the Appellate Courtto decide the appeal afresh on merits with a view to decide as to whetherthe Magistrate was justified in allowing the complaint and awardingsentence. The reason being that the Appellate Court once decided toGremand 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 theconsidered opinion that the High Court committed jurisdictional error inallowing the revision filed by respondent No.1. The impugned order,therefore, deserves to be set aside.
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15. We, also perused the order of the Appellate Court dated12.07.2005 (running in 25 pages) with a view to find out as to whether itwas justified in remanding the case to the Magistrate.
16. Having perused the order, we are of the view that the AppellateCourt erred in remanding the case to the Magistrate.
17. In our view, there was neither any need and nor any occasionto remand the case to the Magistrate. In other words, we are of theview that there was enough material before the Appellate Court on thebasis of which the appeal on merits could have been decided one way orthe other instead of remanding the case to the Magistrate for deciding itafresh.
18. In view of the foregoing discussion, the appeal succeeds andis accordingly allowed. The impugned order and the order dated12.07.2005 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 onmerits in accordance with law on the basis of the material already onrecord.
20. It is, however, made clear that the Appellate Court will decidethe appeal strictly in accordance with law without being influenced byany observations made by the Appellate Court in the order dated12.07.2005 as also in the impugned order of the High Court and thisorder.
21. Let the appeal be decided within six months from the date ofappearance of the parties before the Appellate Court on 15.04.2019.
Nidhi Jain
Appeal allowed.
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