The appellant, original complainant, has preferred this appeal under Section 378 of the Code of Criminal Procedure, 1973 and challenged the judgement and order of acquittal passed by sixth Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Dahod, in Criminal Case No. 937 of 2005 acquitting the respondent accused for the offence under Section 138 of the Negotiable Instruments Act, 1881 (“the Act” for short). 2. According to the complainant as the accused was in need of finance, he demanded money from him and therefore Rs. 1,51,000/- was advanced to the accused who gave cheque No.010706 dated 1.3.2005 for Rs. 1,51,000/- drawn on The Dahod Urban Co-operative Bank Limited towards repayment of the amount. On presentation of the cheque in the bank, it returned unpaid with the endorsement “title of the account required”. Therefore, notice through advocate was served to the accused who gave false and evasive reply but did not pay the unpaid amount of the cheque. Therefore, complaint was filed in the Court of learned Chief Judicial Magistrate, Dahod and it was registered as Criminal Case No. 937 of 2005. The trial Court issued summons and the respondent accused appeared and denied having committed offence. Therefore, prosecution adduced evidence. On completion of recording of evidence, further statement of the respondent accused was recorded. After hearing learned advocates for the parties, by the impugned judgement the trial Court acquitted the respondent accused. Being aggrieved by the said decision, the complainant has preferred this appeal.
3. I have heard learned advocates for the parties at length and in great detail. I have also perused the record and proceedings of the trial Court.
4. Learned advocate for the appellant Mr. Makwana submitted that the cases under Section 138 of the Act are required to be tried in summary manner and accordingly the present case was also tried in summary manner wherein only substance of evidence was recorded. He submitted that the evidence was recorded by two different learned Magistrates and their successor Magistrate who did not record the evidence, delivered the judgement. Therefore, in view of the decision of Hon'ble Supreme Court in the case of NITINBHAI SAEVATILAL SHAH VS. MANUBHAI MANJIBHAI PANCHAL reported in AIR 2011 SC 3076 the judgement is required to be set aside and matter is required to be remanded to the trial Court for de novo trial.
5. Learned advocate Ms. Shaili Kapadia for the respondent accused could not dispute the fact that the evidence was recorded by two different learned Magistrates and the judgement was delivered by their successor Magistrate.
6. On perusal of the record and proceedings, it emerges that evidence was recorded by two different learned Magistrates and the judgement was delivered by the successor Magistrate who did not record the evidence.
7. It appears from the record of the trial Court that learned Magistrate who delivered the judgement did not record evidence in the case but relied on the evidence recorded by his predecessor and delivered the judgement acquitting the accused. In the decision of NITINBHAI SAEVATILAL SHAH VS. MANUBHAI MANJIBHAI PANCHAL (supra), Hon'ble Supreme Court has ruled that when a case is tried as summary case a Magistrate who succeeds who had recorded part or whole of the evidence cannot act on the evidence so recorded by his predecessor. In summary proceedings the successor Judge or Magistrate has no authority to proceed with the trial from the stage at which his predecessor has left it. The reason why the provisions of sub-sections (1) and (2) of Section 326 of the Code have not been made applicable to summary trials is that in summary trials only substance of evidence has to be recorded. The Court does not record the entire statement of witness. Therefore, the Judge or the Magistrate who has recorded such substance of evidence is in a position to appreciate the evidence led before him and the successor Judge or Magistrate cannot appreciate the evidence only on the basis of evidence recorded by his predecessor. Section 326(3) of the Code does not permit the Magistrate to act upon the substance of the evidence recorded by his predecessor, the obvious reason being that if succeeding Judge is permitted to rely upon the substance of the evidence recorded by his predecessor, there will be a serious prejudice to the accused and it would be difficult for a succeeding Magistrate himself to decide the matter effectively and to do substantial justice.
8. In light of the law laid down by Hon'ble Supreme Court, as observed earlier, in the present case the Magistrate who recorded the evidence did not deliver the judgement but his successor Magistrate relying on the evidence recorded by his predecessor passed order of acquittal of the accused. Therefore, serious prejudice is caused to the complainant as the succeeding Magistrate was not in a position to appreciate the substance of evidence recorded by his predecessor and decide the matter effectively and to do substantial justice. Therefore, the impugned judgement is required to be set aside and the case is required to be remanded to the trial Court for retrial.
. In the result, the appeal is allowed. The judgement and order of acquittal passed by the trial Court in Criminal Case No. 937 of 2005 on 24.11.2010 is set aside and the case is remanded to the trial Court for retrial in accordance with law. The parties are directed to appear before the trial Court on 2.4.2012. If the accused fails to appear before the trial Court as directed by this Court, learned Magistrate is at liberty to take effective steps to secure his presence. Record and proceedings be sent back to the trial Court forthwith.
(BANKIM N. MEHTA, J) (pkn)