Admit. As learned advocate Mr. Nasir Saiyed appears for respondents accused, notice is not required to be issued to the respondents. 2. With the consent of the learned advocates for the parties, this appeal is taken up for final hearing.
3. 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 learned 3rd Additional Senior Civil Judge and Judicial Magistrate First Class, Porbandar, on 13.1.2011 in Criminal Case No. 8076 of 2002 acquitting the respondent accused for the offence under Section 138 of the Negotiable Instruments Act, 1881 (“the Act” for short).
4. According to the complainant, the respondent accused are dealing in business of advancing loan to Indian Exporters. As he was in need of loan for his business purposes, he made request to the accused to arrange for loan of Rs. 4 crore and thereafter loan of Rs. 18 crore. He agreed to give consultancy fee and also agreed to give advance amount of fees. Accordingly, he paid Rs. 1.95 crore to the accused. As the accused failed to make arrangement for loan, they were required to return the amount paid by him. Accordingly, Rs.
1.61 crore were returned by the accused and Rs. 34 lakh remained payable by them. The accused gave cheques for return of the said amount but the cheques returned unpaid on account of insufficient fund. Therefore, the accused were served with notice and demand of amount of unpaid cheque was made. Despite the notice, the accused did not pay the amount of unpaid cheques. Therefore, complaint under Section 138 of the Act was filed.
5. The trial Court issued summons and the accused appeared and denied having committed the offence. Therefore, the prosecution adduced evidence. At the end of recording of evidence, further statements of the accused under Section 313 of the Code of Criminal Procedure were recorded. After hearing learned advocates for the parties, the trial Court by the impugned judgement acquitted the respondent accused. Being aggrieved by the said decision, the complainant has preferred this appeal.
6. I have heard learned advocate Mr. Thakkar for the appellant and learned advocate Mr. Nazir Saiyed for the respondent accused at length and in great detail. I have also perused the record and proceedings of the trial Court.
7. Learned advocate Mr. Thakkar submitted that cases under Section 138 of the Act are tried in summary manner and therefore learned Magistrate cannot rely on the evidence recorded by his predecessor. He also submitted that in the present case, the evidence was recorded by one Magistrate and judgement was delivered by his successor Magistrate. Therefore, the trial is vitiated and hence the case is required to be remanded to the trial Court for retrial. He relied on the decision of Hon'ble Supreme Court in the case of NITINBHAI SAEVATILAL SHAH VS. MANUBHAI MANJIBHAI PANCHAL reported in AIR 2011 SC 3076.
8. Learned advocate Mr. Nasir Saiyed for the respondent accused did not dispute the fact that the evidence was recorded by one Magistrate and the judgement was delivered by his successor Magistrate relying on the evidence recorded by his predecessor.
9. On perusal of the record and proceedings, it emerges that the evidence is recorded by one Magistrate and his successor Magistrate relying on the evidence recorded by his predecessor delivered the judgement. In the decision of NITINBHAI SAEVATILAL SHAH VS. MANUBHAI MANJIBHAI PANCHAL (supra), the Hon'ble Supreme Court has observed as under:
“para 14 – The mandatory language in which Section 326(3) is couched, leave no manner of doubt that when a case is tried as a summary case a Magistrate, who succeeds the Magistrate who had recorded the part or whole of the evidence, cannot act on the evidence so recorded by his predecessor. In summary proceedings, the successor Judge has no authority to proceed with the trial from a 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 witnesses. 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 indeed, it would be difficult for a succeeding Magistrate himself to decide the matter effectively and to do substantial justice”.
10. In view of the law laid down by Hon'ble Supreme Court, when a case is tried as summary case, a Magistrate who succeeds the Magistrate who had recorded the evidence, cannot act on the evidence so recorded by his predecessor as only substance of evidence has to be recorded in summary trial. Therefore, the successor Magistrate would not be in a position to appreciate the evidence led before his predecessor and this would cause serious prejudice to a party against whom order is passed. In the present case as observed earlier, learned Magistrate delivered the judgement relying on the evidence recorded by his predecessor. It appears from the note made by learned Magistrate below the impugned judgement that evidence was recorded by his predecessor and even written arguments were also placed on record during the tenure of his predecessor and relying upon that the judgement was delivered. Therefore, learned Magistrate was not in a position to appreciate the evidence properly and effectively and to do substantial justice. Therefore, serious prejudice is caused to the complainant as order of acquittal was passed and the impugned judgement is required to be set aside and the case is required to be remanded to the trial Court for retrial in accordance with law.
11. In the result, the appeal is allowed. The impugned judgement dated 13.1.2011 passed by learned 3rd Additional Senior Civil Judge and Judicial Magistrate First Class, Porbandar, in Criminal Case No. 8076 of 2002 is set aside and the matter is remanded to the trial Court for fresh trial in accordance with law after giving opportunity to the parties. The parties are directed to appear before the trial Court on 12.4.2012. If the accused fail to appear as directed by this Court, the trial Court is at liberty to take appropriate action to secure their presence.
Record and proceedings be sent back to the trial Court forthwith.
(BANKIM N. MEHTA, J) (pkn)