-: 1 :- wp – 3745 /11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 3745 OF 2011 Dinesh Thacker. ..Petitioner. Versus State of Maharashtra & Anr. ..Respondents. Mr. Niranjan Mundargi i/b P. C. Avichal for the petitioner. Mr. S. V. Marwadi i/b Mrs. C. S. Savitri for R-2. Mr. D. P. Adsule, APP. Coram : RANJIT MORE, J. Date : December 12, 2011. P. C. : 1. Heard learned counsel for the petitioner and respondent no.2 respectively. The present writ petition filed under article 227 of Constitution of India, 1950 challenges the order passed by the Metropolitan Magistrate, 7th Court, Dadar on 2/12/2011 in a case filed under section 138 r.w. 141 of N.I. Act, 1881, being Criminal Case No. 3369/SS/2005. By the said order, the petitioner's application for de-nova trial is rejected. The petitioner is the accused in the complaint instituted by respondent no.2-complainant. The said complaint was filed on 3/3/1999 and it is at the stage of trial. The petitioner filed the above said application relying upon the provision of section 326(3) of Code of Criminal Procedure, 1973. The contention of srp -: 2 :- wp – 3745 /11 the petitioner is that the present case is being tried as a summary case therefore provisions of section 326(3) are applicable and once the Magistrate is transferred, the case has to be heard de-novo. As stated above, the said application is rejected and therefore the present writ petition. 2. Learned counsel Mr.Mundargi appearing for the petitioner to substantiate his argument, relied upon the decision of Apex Court in Nitinbhai Saevatilal Shah & Anr vs. Manubhai Manjibhai Panchal and Anr [2011(4) BCR (cri.) 9]. Mr. Marwadi, learned counsel for respondent no.2, on the contrary relied upon the judgment of learned Single Judge of this Court in Shivaji Sampat Jagtap vs. Rajan Hiralal Arora and Anr [2006 All MR (Cri) 2612] and submitted that so far as the present case is concerned, same is not being tried in a summary way and in fact it is being tried as a summons case and therefore provision contained in sub-section (3) of section 326 of Cr.P.C, 1973 would not be applicable. 3. In Nitinbhai (supra), the accused was convicted for the offence punishable under section 138 of N.I. Act. The conviction was confirmed by the lower appellate Court as well -: 3 :- wp – 3745 /11 as by the High Court. The Supreme Court quashed the conviction relying upon the provision of section 326(3) of Cr.P.C, 1973. Perusal of the said judgment makes it clear that the case was tried as a summary case, therefore, ratio of the said decision cannot be made applicable to the present case. 4. I have gone through the ratio laid down in Shivaji Sampat Jagtap’s case (supra). The facts of that case and present case are similar. The learned Single Judge of this Court in that case refused the prayer of the accused for de-novo trial on the ground that case was tried as a summons case and therefore the provision of sub-section (3) of section 326 of the Code of Criminal Procedure, 1973 is not applicable. In my view, ratio of this decision can squarely be made applicable to the present case. 5. Having considered the rival submissions, I do not find merit in the petition. In the present case, the complaint was filed on 3/3/1999 and the evidence on affidavit was filed by the Complainant on 27/12/2005. The petitioner–accused started cross examination on 9/1/2006 and continued till 8/3/2011. The Petitioner – accused has consumed 18 sittings for cross -: 4 :- wp – 3745 /11 examination of complainant. If these dates are taken into consideration, it is apparent that the case is not tried as a summary case and in fact it is being tried as a regular summons case. Although proceeding for an offence punishable u/s 138 can be tried as a summary case u/s 143 of N.I. Act, the Court below has preferred to try it as a regular summons case. 6. I find that the Court below has rightly rejected the application of the accused for de-novo trial of the case. Taking overall circumstances into consideration and especially considering the fact that proceeding is pending since 1999, it would not be just and proper to interfere with the impugned order. In that view of the matter, writ petition is dismissed. (RANJIT MORE, J.)