IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.2103 OF 2008
Susanta Dey ….Appellant(s)
Babli Majumdar & Anr. …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
- 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.
- The appeal involves a short point as would be
clear from the facts mentioned hereinbelow.
- 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.
- 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
- 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.
- 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
- It is against this order, the appellant (accused)
has felt aggrieved and filed this appeal by way of
special leave in this Court.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- Having perused the order, we are of the view
that the Appellate Court erred in remanding the
case to the Magistrate.
- 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.
- 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.
- 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.
- 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.
- 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.
March 28, 2019