( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION No. 305 of 2000. CRIMINAL REVISION APPLICATION No. 305 of 2000. CRIMINAL REVISION APPLICATION No. 305 of 2000. Smt Jayshree Madhukar Gaikwad ..Applicant. ..Applicant. ..Applicant. Vs. Shri Shriram Vasant Bhosle & Anr ..Respondents. ..Respondents. ..Respondents. Ms Surekha G. Jangam, Advocate for the Applicant. None for Respondent No.1. Ms M. H. Mhatre, A.P.P. for Respondent No.2. CORAM : V.C. DAGA, J. CORAM : V.C. DAGA, J. CORAM : V.C. DAGA, J. DATED : 09.04.2008. DATED : 09.04.2008. DATED : 09.04.2008. P.C.:- P.C.:- P.C.:- 1. Heard the rival parties. 2. Perused revision petition and the material available on record. 3. This revision petition is directed against the order dated 19-8-2000 passed in Criminal Appeal No. 87 of 1999 by the 12th Additional Sessions Judge, Pune, ("Lower ( 2 ) Appellate Court" for short), whereby the appeal was allowed and the order of conviction dated 21.6.1999 recorded by the 10th Joint C.J.J.D. and J.M.F.C. Pune (the "Trial Court" for short) against the accused in Cri. Case No. 237 of 1992 came to be set aside finding breach of Section 326 (2) of the Code of Criminal Procedure, 1973 (" the Cr.P.C." for short and proceedings were remitted back to the Trial Court for hearing afresh from the stage of explaining particulars of the charge to the accused. THE FACTS:- THE FACTS:- THE FACTS:- ---------- 4. The factual matrix reveal that the present applicant is the original complainant having filed complaint under Section 138 of the Negotiable Instruments Act, 1881 ("the N.I.Act" for short) before the Judicial Magistrate, First Class, Pune, wherein the conviction was recorded against Respondent No.1-accused. 5. Being aggrieved by the order regarding conviction, the accused-Respondent No.1, preferred appeal before the learned Additional ( 3 ) Sessions Judge, Pune, wherein one of the contentions raised was about violation of Section 326 (2) of the Cr.P.C. since two Magistrates had tried trial of criminal complaint. 6. While dealing with this contention raised, the Lower Appellate Court found that the complaint case filed by the petitioner-complainant was a summary case. The oral evidence was recorded by one Magistrate and the case was finally decided by another Magistrate. The Appellate Court, therefore, found violation of mandatory provisions of Sections 326(3) and 262 (2) of the Cr.P.C. and held that the trial stood vitiated. SUBMISSIONS:- SUBMISSIONS:- SUBMISSIONS:- ------------ ------------ ------------ 7. Ms Jangam, the learned counsel appearing for the applicant, placing reliance on various judgments of this Court urged that though it was a summary case but it was tried as a regular summons-case. As such in her submission the impugned order of remand is based on erroneous assumption that the case was tried as a summary ( 4 ) case. She submits that the Lower Appellate Court wrongly concluded that there is violation of Section 326 (3) of Cr.P.C. and that the defect is legally incurable warranting remand for de novo trial. 8. The learned counsel for the petitioner has placed reliance on the two judgments of the learned Single Judges of this Court one in the case of Shivaji Sampat Jagtap v. Rajan Hiralal Shivaji Sampat Jagtap v. Rajan Hiralal Shivaji Sampat Jagtap v. Rajan Hiralal Arora reported in 2006 (2) Bom. C. R. (Cri) Arora reported in 2006 (2) Bom. C. R. (Cri) Arora reported in 2006 (2) Bom. C. R. (Cri) 590 590 590 and another in the case of Ramilaben Ramilaben Ramilaben Trikamlal Shah vs. Tube And Allied Products & Trikamlal Shah vs. Tube And Allied Products & Trikamlal Shah vs. Tube And Allied Products & Ors Ors Ors reported in 2007 ALL MR (Cri) 1637 2007 ALL MR (Cri) 1637 2007 ALL MR (Cri) 1637 to support her contention. 9. So far as, respondent No.1- original accused is concerned, nobody has appeared on his behalf. I did not get advantage of knowing his views on the submission made by the counsel for the applicant. 10. The learned A.P.P. has supported the contention canvassed on behalf of the present applicant contending that issue is concluded by ( 5 ) two judgments of this Court, which are directly on the point. CONSIDERATION:- CONSIDERATION:- CONSIDERATION:- ------------- 11. Having heard the learned counsel for the applicant and the learned A.P.P. and having gone through the material available on record, it is clear that the case was tried by the trial Court as a regular summons-case. This can be born out from the record itself, if one goes through the evidence recorded. In this backdrop, the contention raised by the learned counsel appearing for the complainant needs acceptance, since it is supported by two judgments of the two learned Judges of this Court - one in the case of Shivaji Sampat Jagtap and Shivaji Sampat Jagtap and Shivaji Sampat Jagtap and another in Ramilaben in Ramilaben in Ramilaben Trikamlal (cited supra) Trikamlal (cited supra) Trikamlal (cited supra). 12. In view of the above legal position, impugned order is unsustainable. The same is quashed and set aside and proceedings are remitted back to the Sessions Judge, Pune for consideration afresh on its own merits with expeditious despatch, at any rate, within three ( 6 ) months from the date of receipt of this order and R and P. 13. Registry to remit R & P to the Lower Appellate Court immediately. 14. Revision petition stands disposed of in terms of this order. JUDGE. JUDGE. JUDGE.