SUSANTA DEYversusBABLI MAJUMDAR & ANR.

                       [2019] 2 S.C.R. 1065                            1065


                         SUSANTA DEY                                   A
                                 v.
                  BABLI MAJUMDAR & ANR.
                 (Criminal Appeal No.2103 of 2008)
                     MARCH 28, 2019                                    B
              [ABHAY MANOHAR SAPRE AND
                DINESH MAHESHWARI, JJ.]
      Revision:
      Jurisdiction of High Court – Cheque bouncing matter wherein
                                                                       C
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     D
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
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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
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       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         G
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
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                               1065
1066               SUPREME COURT REPORTS                  [2019] 2 S.C.R.


 A     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
 B     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
 C
       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]
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             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
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       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]
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             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.
 G           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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         SUSANTA DEY v. BABLI MAJUMDAR & ANR.                                    1067


       The Judgment of the Court was delivered by                                A
       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       B
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.                                                     C
       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             D
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).                     E
       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      F
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             G
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.
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1068                 SUPREME COURT REPORTS                     [2019] 2 S.C.R.


 A           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
 B     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
 C     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
 D     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
 E     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
 F     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
 G     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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             SUSANTA DEY v. BABLI MAJUMDAR & ANR.                                 1069
                  [ABHAY MANOHAR SAPRE, J.]

      15. We, also perused the order of the Appellate Court dated                 A
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           B
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.                                                                           C
      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          D
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                   E
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.
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Nidhi Jain                                                      Appeal allowed.




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