powers of revisional court -when appeal was remanded – whether revision court direct the appeal court to decid the appeal afresh or confirm the trial court order after setting aside the order of remand ? = 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.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.2103 OF 2008
Susanta Dey ….Appellant(s)
VERSUS
Babli Majumdar & Anr. …Respondent(s)

J U D G M E N T
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
    1
    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
    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.
    7
  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.
    8
  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
    9