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2021 (9) TMI 1148 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - failure on the part of the Court of Magistrate to mark the documents as exhibits - vitiation of the proceedings to such an extent that a case for retrial was made out by the Applicant or not - Section 465 of the Cr.P.C. - HELD THAT:- In the present case, the Applicant failed to raise any objections to the aforesaid documents brought on record on behalf of the Respondent, the documents stood admitted. The Applicant referred to the documents at the stage of cross-examination of the witness to Respondent no.1 and, therefore, the question of prejudice sought to be raised on behalf of the Applicant, is not only misplaced but it is clearly an afterthought. The Appellate Court was justified in rendering findings against the Applicant in this context. Section 465 of the Cr.P.C. - HELD THAT:- In the case of AJAY KUMAR GHOSHAL AND ORS. VERSUS STATE OF BIHAR AND ORS. [2017 (1) TMI 1764 - SUPREME COURT] the Hon'ble Court has elaborated upon the conditions in which the Court may direct re-trial/de novo trial. It has been emphasized that a prayer for directing re-trial is not to be casually considered and that the error, omission, or irregularity completed by the accused must be shown to have occasioned a failure of justice. The Hon'ble Supreme Court referred to several judgments and found that a direction for a re-trial/de novo trial should be a last resort and that too only when such a course becomes indispensable - Thus, it becomes clear that if the accused is unable to show the failure of justice, a direction for re-trial/de novo trial cannot be granted. This Court is of the opinion that the failure on the part of the Trial Court in the facts and circumstances of the present case, to mark the documents produced by the Respondent no.1 as exhibits, at worse can be termed as an error/omission/irregularity but, there is nothing to show that the same occasioned failure of justice. The Appellate Court was fully justified in holding that the Applicant failed to demonstrate prejudice caused to him. It is evident that the Application cannot succeed in seeking a direction of retrial/ de novo trial by merely referring to Rules 33 and 34 of Chapter VI of the Criminal Manual or Section 294 of the Cr.P.C. - no case is made out for exercise of revisionary jurisdiction in the facts and circumstances of the present case. The criminal revision is found to be without any merits and deserves to be dismissed. Respondent no.1 is permitted to withdraw the amounts deposited by the Applicant before the Court - the Criminal Revision Application is dismissed.
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