TMI Blog2021 (9) TMI 1148X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt 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 Chapt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice, Respondent no.1 was constrained to file the aforesaid complaint on 05.07.2017 against the Applicant. The Respondent no.1 also filed documents along with the list of documents in the said complaint. 5. The proceedings in the complaint continued before the Court of Magistrate wherein, the Branch Manager of the Porvorim Branch of the Respondent no.1, filed an affidavit in evidence before the Court of Magistrate. Along with the affidavit, the said Branch Manager produced six documents and prayed that they be marked as exhibits. It is undisputed that the aforesaid witness on behalf of the Respondent no.1 was cross-examined by the Advocate representing the Applicant and that reference was also made to the said documents on which Respondent no.1 placed reliance. The said documentary evidence was not disputed on behalf of the Applicant and it is also admitted position that the Applicant neither examined himself nor any other witness in support of his defence. It is also an admitted position that during the course of the proceedings before the Court of Magistrate, although documents filed along with the affidavit in evidence of the witness for the Respondent no.1 were taken on re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was supposed to mark the documents filed along with the complaint as exhibits so that they could be specifically referred to by the exhibit numbers during the course of the trial and the accused was granted ample opportunity to deal with such material on record. The learned Counsel referred to Rules 33 and 34 of Chapter VI pertaining to such Rules as to inquiries and trials in all Courts contained in the Criminal Manual. By referring to the said provisions, it was submitted that in the present case, the entire proceedings before the Court of Magistrate stood vitiated, thereby indicating that a re-trial was warranted in the facts and circumstances of the present case. 10. It was further submitted that the Court of District Judge failed to appreciate the contentions raised on behalf of the Applicant while dismissing the Appeal. The learned Counsel for the Applicant referred to the Judgment of the Hon'ble Supreme Court in the case of Bipin Shantilal Panchal vs. State of Gujarat anr.2001 ALL MR(Cri) 452 and Judgments of this Court in the case of Geeta Marine Services Pvt. Ltd. anr. vs. State anr. 2009 ALL MR (Cri) 672 and Peacock Industries Ltd. Ors. vs. M/s. Budhr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent filed the complaint and along with the complaint a list of documents was also filed. The witness i.e. the Branch Manager of the Respondent no.1, who deposed on affidavit in evidence in support of the complaint in para 17 of the affidavit stated as follows : 17. I say that I am producing following documents which may be taken on record and marked as exhibits:- (a) Copy of Resolution authorising Mrs. Archana Sagar Govekar in the present matter. (b) Copy of Cheque bearing No. 333915 dated 19.05.2017, drawn on Canara Bank, Panjim Branch, for an amount of ₹ 1,07,207/-(Rupees One lakh Seven Thousand Two Hundred And Seven only). c) Copy of Return Memo of the Complainant and Accused Bank. d) Copy of the legal demand notice dated 14/06/2017 addressed to the accused by the complainant along with A.D. Card and postal slip. e) Notarised copy of Agreement for loan and promissory Note. f) Copy of Loan statement along with Certificate. 14. There is no dispute about the fact that when the said witness produced the aforesaid documents on the record of the Court of Magistrate, the Applicant never raised any objection. In fact, the record shows tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has held that when an objection is raised during the course of taking evidence regarding the admissibility of any material, the Trial Court can make a note of such an objection and mark the objected document tentatively as an exhibit in the case, subject to such objections to be decided at the last stage in the final judgment. It has been held that by adopting such a procedure, valuable time of the Court can be saved. A perusal of Section 294 of Cr.P.C., in this context, would show that when a document is included in a list on behalf of the prosecution of the accused and genuineness of any document is not disputed, such a document can be read in evidence, without further proof and that such a procedure is obviously for expediting proceedings before the Court. 18. In this context, this Court in the case of Geeta Marine Services (supra), has considered earlier judgments in the context of Section 294 of the Cr.P.C. and proceedings in the complaint under Section 138 of the aforesaid Act. Much emphasis has been placed on the manner in which objections can be raised in respect of documents and, in that context, the procedural aspect of the matter has been elaborated to the effect th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 139 of the said Act, particularly when the signature on the cheque was admitted. In the present case, there is nothing to show that the Applicant at any stage disputed the signature on the cheque and, therefore, the presumption is clearly operative against the Applicant. 23. In the case of Sudir Enginiring Company vs. Nitco Roadways Limited (supra), the Delhi High Court reiterated the stages that a document passes through during the course of a trial. It has been reiterated that the marking of a document as an exhibit is the first stage but the proof or otherwise of such a document would depend upon admissions, denial, and the substantive evidence produced on record to prove such documents. 24. Therefore, it becomes clear that in the present case, that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad been no real trial or that the Prosecutor or an accused was, for reasons over which he had no control, prevented from leading or tendering evidence material to the charge, and in the interests of justice the appellate Court deems it appropriate, having regard to the circumstances of the case, that the accused should be put on his trial again. An order of re-trial wipes out from the record the earlier proceeding, and exposes the person accused to another trial which affords the prosecutor an opportunity to rectify the infirmities disclosed in the earlier trial, and will not ordinarily be countenanced when it is made merely to enable the prosecutor to lead evidence which he could but has not cared to lead either on account of insufficient appreciation of the nature of the case or for other reasons. 26. Thereafter, 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 op ..... X X X X Extracts X X X X X X X X Extracts X X X X
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