[1] The appellant – original complainant has preferred this appeal under Section 378 of the Criminal Procedure Code, 1973 and challenged the judgment of acquittal dated 25.10.2010 passed by the learned Judicial Magistrate, First Class, Bayad in Criminal Case No.268/2006 acquitting the respondent No.1 for the offence punishable under Section 138 of the Negotiable Instruments Act (for short “the Act”).
[2] According to the complainant, as the accused was in need of money, he obtained Rs.1,99,000/- from the complainant and gave possession of the properties on 29.08.2002. As the accused did no return the amount, a notice dated 05.10.2004 was served to him. Therefore, the accused gave cheque No.863801 dated 01.12.2005 for Rs.1,99,000/- drawn on the Sabarkantha District Central Cooperative Bank Limited, Demai Branch against the amount payable by the accused. On presenting the cheque in the Bank, it returned unpaid on account of “insufficient fund”. Therefore, notice was served to the accused. Despite receipt of notice, the accused did not pay the amount of unpaid cheque. Therefore, the complaint under Section 138 of the Act was filed in the Court of learned Judicial Magistrate, First Class at Bayad and it was registered as Criminal Case No.268/2006.
[3] The Trial Court issued summons. Pursuant to the summons, the accused appeared and denied having committed the offence. Therefore, the prosecution adduced evidence. At the end of recording of evidence, further statement of the accused under Section 313 of the Criminal Procedure Code was recorded.
[4] After hearing the learned advocates for the parties, the Trial Court by impugned judgment acquitted the accused. Being aggrieved by the said decision, the complainant has preferred this appeal.
[5] I have heard learned advocate Mr.Niral R. Mehta for the appellant and learned advocate Mr.Manish J. Patel for the respondent - accused. I have also perused the impugned judgment and Record & Proceedings of the trial Court.
[6] Learned advocate Mr.Niral R. Mehta for the appellant mainly submitted that the case was tried as summary case and part of the evidence was recorded by one Magistrate and his successor recorded remaining part of the evidence and delivered the judgment. Therefore, the trial is vitiated and hence, the impugned judgment is required to be set aside and the case is required to be remanded to the trial for retrial. He relied upon the decision in the case of Nitinbhai Saevatilal Shah & another Vs. Manubhai Manjuibhai Panchal and another, reported in (2011) 9 SCC 638.
[7] Learned advocate Mr.Manish Patel for the respondent - accused opposed the submissions and submitted that this contention is taken for the first time before this Court and, therefore, it cannot be accepted. He submitted that there is nothing on record to show that the learned Magistrate conducted the trial in summary manner as detailed evidence was recorded by him. He submitted that the ratio laid down in the said decision cannot be made applicable in the present case. He relied on the decisions in the case of State of Gujarat Vs. Bachubhai Naginbhai Shah and others, reported in 1996 (2) GLR 643 and in the case of Caetano Costa Vs. State, reported in AIR 1969 Bombay 199.
[8] On perusal of the Record & Proceedings of the trial Court, it emerges that the part of the evidence was recorded by learned Judicial Magistrate, First Class, Bayad (Mr.G. J. Shah) and his successor recorded remaining part of the evidence and delivered the judgment. In the decision of Nitinbhai Saevatilal Shah & another Vs. Manubhai Manjuibhai Panchal and another (Supra), the Hon'ble Supreme Court has ruled that in summary trial only substance of evidence instead of entire evidence is recorded which a successor Magistrate is not in a position to appreciate properly. Therefore, conviction recorded by successor Magistrate relying upon the evidence recorded by his predecessor was bad in law. The Hon'ble Supreme Court in paragraph No.17 in the case of Nitinbhai Saevatilal Shah & another Vs. Manubhai Manjuibhai Panchal and another, reported in (2011) 9 SCC 638 observed as under:
“17. The mandatory language in which Section 326 (3) is couched, leaves 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 or Magistrate 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-
Section (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 indeed, it would be difficult for a succeeding Magistrate himself to decide the matter effectively and to do substantial justice.”
[9] In view of this, it is clear that when a successor Magistrate decides a case in summary trial on the basis of substance of evidence recorded by his predecessor, he would not be in a position to appreciate the evidence properly and this would cause prejudice to a party against whom order is passed. In the present case, it appears that the learned Magistrate, who delivered the judgment did not record the entire evidence but relied upon part of the evidence recorded by his predecessor. Therefore, the successor Magistrate was not in a position to appreciate the evidence properly and decide the case effectively and that has caused serious prejudice to the complainant as acquittal is recorded. Learned advocate for the appellant failed to point out that the case was not tried as summary trial. Section 143 of the Act provides that Sections 262 to 265 of Criminal Procedure Code shall apply to the trial under the Act and in course of summary trial if it appears to the Magistrate that it is undesirable to try the case summarily, the Magistrate shall, after hearing the parties, record an order to that effect and proceed to hear the case in the manner provided by Criminal Procedure Code. In the present case, there is nothing on record to show that the Court, after hearing the parties recorded an order to the effect that it was not desirable to try the case summarily and tried the case in the manner provided in Criminal Procedure Code. There is nothing on record to indicate that the Court did not record the substance of evidence. Therefore, in order to do substantial justice, the successor Magistrate was required to record the evidence afresh. It is true that this contention of de novo trial was not taken before the trial Court but this contention being a contention of law, it can be taken in appeal. Therefore, submission that contention has not taken earlier cannot be accepted.
[10] As regards the decisions relied upon by learned advocate for the respondent in the case of State of Gujarat Vs. Bachubhai Naginbhai Shah and others, reported in 1996 (2) GLR 643 and in the case of Caetano Costa Vs. State, reported in AIR 1969 Bombay 199, in the facts of this case, in view of the judgment of the Apex Court, the decisions do not render any assistance to the respondents.
[11] In view of the above, the present appeal deserves to be allowed and the case is required to be remanded to the Trial Court for retrial.
[12] In view of the above, the present appeal is allowed. The impugned judgment and order of acquittal dated 25.10.2010 passed by the learned Judicial Magistrate, First Class, Bayad in Complaint Case No.268/2006 is set aside. 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 30th March 2012. If the accused fails to appear on the date fixed before the Trial Court, the learned Magistrate trying the case is at liberty to take appropriate action to secure presence of the accused. Registry is directed to send back the Record & Proceedings to the trial Court, immediately.
[ BANKIM N. MEHTA, J. ] vijay