[1] The appellant – original complainant has preferred this appeal under Section 378 of the Criminal Procedure Code, 1973 and challenged the judgment and order of acquittal dated 31.1.2009 passed by the learned 6th Additional Senior Civil Judge and JMFC, Bharuch in Criminal Case No.4014 of 2006 acquitting the respondent accused for the offence punishable under Section 138 of the Negotiable Instruments Act (for short “the Act”).
[2] According to the complainant, the accused is doing the business in name of Krishna Textiles. The accused took loan from him and on settlement of account, in January, 2006, Rs.9,50,000/- remained payable by the accused and the settlement documents were destroyed. The accused gave cheque No.066136 dated 21.4.2006 for Rs.9,50,000/- drawn on Prime Cooperative Bank Limited, Bharuch branch. The cheque was presented in the bank, but it returned unpaid with endorsement “Insufficient Funds” on presentation of cheque. Therefore, notice through advocate was served to the accused, but he did not pay the unpaid amount of cheque, but gave evasive reply. Therefore, reply to the reply was given through advocate. Despite that the accused did not comply with the notice. Therefore, complaint under section 138 of the Act was filed.
[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, trial Court explained to the accused the incriminating circumstances appearing in the evidence against him. The accused explained the incriminating circumstances in his further statement recorded under Section 313 of the Criminal Procedure Code. 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.
[4] I have heard learned advocate Mr. Kogje for the appellant and learned advocate Mr. Buch for the accused. I have also perused the impugned judgment and Record & Proceedings of the trial Court.
[5] Learned advocate Mr. Kogje mainly submitted that the case was tried as summary case and successor Magistrate, relying upon the evidence recorded by his predecessor, 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 Court for fresh trial. 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.
[6] Learned advocate Mr. Buch for accused did not dispute the fact that the successor Magistrate relied upon the evidence recorded by his predecessor and delivered the judgment.
[7] In the decision of Nitinbhai Saevatilal Shah (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, decision rendered by successor Magistrate relying upon the evidence recorded by his predecessor was bad in law. The Hon'ble Supreme Court observed thus:
“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.”
[8] In view of above, in the present case, it appears from the record that the successor Magistrate did not record the evidence and relied upon the evidence recorded by his predecessor. It also appears that the case was tried as a summary case. In view of the fact that in summary trial, only substance of evidence is recorded, successor Magistrate is not in a position to appreciate the evidence properly recorded by his predecessor and it would be difficult for succeeding Magistrate to decide the case effectively and to do substantial justice.
[9] Section 143 provides that sections 262 to 265 of Code of Criminal Procedure, 1973 shall, as far as may be, apply to the trial under the Act. Therefore, as the successor Magistrate relied upon the evidence recorded by his predecessor and recorded acquittal, the case was not decided effectively. Section 326(3) of the Code does not permit the Magistrate to act upon the substance of evidence recorded by his predecessor. In the present case, as successor Magistrate has relied upon the evidence recorded by his predecessor, this caused serious prejudice to the complainant as acquittal is recorded. In order to do substantial justice, the successor Magistrate was required to record the evidence afresh. Therefore, the impugned judgment is required to be set aside and the case is required to be remanded to the trial Court for de novo trial.
[10] In view of the above, the present appeal is allowed. The impugned judgment and order of acquittal dated 31.1.2009 passed by the learned 6th Additional Senior Civil Judge and JMFC, Bharuch in Criminal Case No.4014 of 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 11th June, 2012. If the accused fail to appear before the trial Court on the date fixed, the learned Magistrate trying the case is at liberty to take appropriate action to secure presence of the accused.
[11] Registry is directed to send back the Record & Proceedings to the trial Court, immediately.
shekhar* (BANKIM.N.MEHTA, J.)