SUSANTA DEY versus BABLI MAJUMDAR & ANR.
[2019] 2 S.C.R. 1065, Supreme Court of India, 2019
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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1065
SUSANTA DEY
v.
BABLI MAJUMDAR & ANR.
(Criminal Appeal No.2103 of 2008)
MARCH 28, 2019
[ABHAY MANOHAR SAPRE AND
DINESH MAHESHWARI, JJ.]
Revision:
Jurisdiction of High Court – Cheque bouncing matter wherein
appellant held guilty, however in appeal, the appellate court
remanded the case to the Magistrate for giving opportunity to the
parties to adduce evidence – Revision thereagainst by complainant
wherein the High Court set aside the order of the appellate court
and passed order of conviction – Justification of – Held: High Court
committed jurisdictional error in allowing the revision – Question
before the High Court was whether the remand order of the appellate
court was legal or not – Instead of deciding the said question, the
High Court proceeded to decide the complaint itself on its merits
and while allowing the complaint, sentenced the appellant which
was not legally permissible – Furthermore, the appellate court was
not justified in remanding the case to the magistrate – There was
enough material before the appellate court to decide the appeal on
merits – Thus, the order passed by the High Court and the appellate
court set aside.
Allowing the appeal, the Court
HELD: 1.1 The High Court was not justified in allowing
the revision filed by respondent No.1 and awarding sentence to
the appellant and compensation to respondent No.1. 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. Instead of deciding the
said question, the High Court proceeded to decide the complaint
[2019] 2 S.C.R. 1065
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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 Lakhs to
respondent No.1 (complainant). It was, not legally permissible.
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. Thus, the High Court
committed jurisdictional error in allowing the revision filed by
respondent No.1. [Paras 10-14][1068-C-H]
1.2 The appellate court erred in remanding the case to the
Magistrate. There was neither any need and nor any occasion to
remand the case to the Magistrate. 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. The impugned order and the order of the
appellate court
are set aside. The case is remanded to the appellate court to
decide the appeal afresh on merits in accordance with law.
[Paras 15, 17, 18, 19][1069-A-D]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 2103 of 2008.
From the Judgment and Order dated 11.04.2008 of the High Court
of  Calcutta in Criminal Revision No. 3048 of 2005.
Vijay Kumar, Ms. Aparna Jha, Advs. for the Appellant.
Pijush K. Roy, Ms. Kakali Roy, Sunil Kumar Verma, Avishkar
Singhvi, 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.
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 herein and while setting aside the order
of the Appellate Court, awarded simple imprisonment for 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,  1st  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 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 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.
SUSANTA DEY v. BABLI MAJUMDAR & ANR.
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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 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 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
allowing 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 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.
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.
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.
Nidhi Jain
Appeal allowed.
SUSANTA DEY v. BABLI MAJUMDAR & ANR.
[ABHAY MANOHAR SAPRE, J.]