1. As common question of law and facts arise in these group of Revision Applications and all are between the same parties and Special Criminal Application Nos. 1482/2010; 1484/2010 and 1485/2010 arise out of the judgment and order passed by the learned appellate Court impugned in the aforesaid Revision Applications, all these applications/petitions are heard, decided and disposed of together by this common judgment and order. 2.1. Criminal Revision Application No. 66/2010 has been preferred by the applicant-original accused to quash and set aside the judgment and order dated 16/01/2009 passed by the learned Chief Judicial Magistrate, Surendranagar in Criminal Case No. 348/2002 confirmed by the learned Additional Sessions Judge and Fast Track Court, Surendranagar dated 01/02/2010 in Criminal Appeal No. 1/2009 and consequently direct to refund the fine of Rs. 2 lakhs to the applicant.
2.2. Criminal Revision Application No. 67/2010 has been preferred by the applicant-original accused to quash and set aside the judgment and order dated 16/01/2009 passed by the learned Chief Judicial Magistrate, Surendranagar in Criminal Case No. 466/2002 confirmed by the learned Additional Sessions Judge and Fast Track Court, Surendranagar dated 01/02/2010 in Criminal Appeal No. 2/2009 and consequently direct to refund the fine of Rs. 2 lakhs to the applicant.
2.3. Criminal Revision Application No. 68/2010 has been preferred by the applicant-original accused to quash and set aside the judgment and order dated 16/01/2009 passed by the learned Chief Judicial Magistrate, Surendranagar in Criminal Case No. 478/2002 confirmed by the learned Additional Sessions Judge and Fast Track Court, Surendranagar dated 01/02/2010 in Criminal Appeal No. 3/2009 and consequently direct to refund the fine of Rs. 2 lakhs to the applicant.
2.4. Special Criminal Application Nos. 1482/2010; 1484/2010 and 1485/2010 have been preferred by the petitioner-original complainant to quash and set aside the orders passed by the learned Chief Judicial Magistrate, Surendranagar in Criminal Case No. 348/2002; 466/2002 and 478/2002 and the impugned judgment and orders passed by the learned Additional Sessions Judge and Fast Track Court, Surendranagar dated 01/02/2010 in Criminal Appeal Nos. 1/2009; 2/2009 and 3/2009 in not awarding compensation to the petitioner-original complainant while convicting the original accused for the offence punishable under Section 138 of the Negotiable Instruments Act.
2.5. Criminal Miscellaneous Application Nos. 16624/2011; 16628/2011 and 16630/2011 in respective Criminal Revision Applications have been preferred by the applicant-original complainant for cancellation of bail granted by this Court in respective main Criminal Revision Applications.
3. Respondent no. 1 in Criminal Revision Application Nos. 66/2010 to 68/2010-original complainant had filed Criminal Complaints against the applicant herein in the Court of learned Chief Judicial Magistrate, Surendranagar for the offence punishable under Section 138 of the Negotiable Instruments Act for dishonour of the cheques in question. Respective Complaints were registered as Criminal Case Nos. 348/2002; 466/2002 and 478/2002 and after recording the verification the learned Magistrate directed to issue summons/process against the original accused for the offence punishable under Section 138 of the Negotiable Instruments Act.
4. It appears that the original complainant examined himself and his evidence was recorded by the learned 4th Judicial Magistrate First Class, Surendranagar. The applicant also led the defense evidence and examined the Bank officials as well as one Shri Bharatbhai Saubhagyachand. All the evidence were recorded by the learned 4th Judicial Magistrate First Class, Surendranagar. It appears that after the evidence was recorded one application was submitted by the applicant to the learned Chief Judicial Magistrate, Surendranagar making some allegations against the learned Judge, who recorded the evidence and before whom the aforesaid Criminal Cases were pending and it was requested to transfer the aforesaid Criminal Cases to another Judicial Magistrate First Class in exercise of the powers under Section 408 of the Code of Criminal Procedure. It appears that thereafter the learned Chief Judicial Magistrate, Surendranagar passed an order under Section 408 of the Code of Criminal Procedure Code to transfer all the aforesaid Criminal Cases to his Court and delivered the impugned judgment and orders considering the evidence recorded by the learned 4th Judicial Magistrate First Class, Surendranagar and convicted the applicant under Section 138 of the Negotiable Instruments Act. Being aggrieved, the applicant preferred Criminal Appeal Nos. 1/2009; 2/2009 and 3/2009 before the learned Additional Sessions Judge, Surendranagar and by impugned judgment and orders the learned Additional Sessions Judge and Fast Track Court, Surendranagar dismissed the said Appeals confirming the respective judgment and order of conviction passed in Criminal Case Nos. 348/2002; 466/2002 and 478/2002. Being aggrieved, the applicant has preferred present Criminal Revision Application Nos. 66/2010 to 68/2010 and as while convicting the applicant-original accused the learned trial Court did not pass any order of compensation, the original complainant has preferred Special Criminal Application Nos. 1482/2010; 1484/2010 and 1485/2010.
5. Shri Ravindra Shah, learned advocate appearing on behalf of the applicant-original accused has vehemently submitted that the impugned judgment and order of conviction passed by the learned Chief Judicial Magistrate, Surendranagar in Criminal Case Nos. 348/2002; 466/2002 and 478/2002 deserves to be quashed and set aside mainly on the ground that as the learned Magistrate was conducting the cases as summary trials, the learned Chief Judicial Magistrate, who passed the final judgment and order of conviction, could not have relied upon and/or considered the substance of evidence recorded by the learned 4th Judicial Magistrate First Class. It is submitted that as held by the Hon'ble Supreme Court in the case of Nitinbhai Saevatilal Shah and Anr. Vs. Manubhai Manjibhai Panchal and Anr. reported in (2011) 9 SCC 638 the successor Magistrate i.e. in the present case the learned chief Judicial Magistrate was required to record fresh substance of evidence. It is submitted that in the similar set of facts and circumstances, the Hon'ble Supreme Court has quashed and set aside the conviction ordered by the successor Magistrate relying upon the substance of evidence recorded by the predecessor Magistrate and the Hon'ble Supreme Court remanded the matter for re-trial in accordance with law. It is submitted that the Hon'ble Supreme Court considered in detail the provisions of summary trial as provided under Sections 262 to 265 of the Code of Criminal Procedure as well as Section 326 of the Code of Criminal Procedure and, therefore, it is requested to allow the present applications and quash and set aside the impugned orders passed by both the Courts below.
6. Shri Dhaval Vakil, learned advocate appearing on behalf of the original complainant has tried to support the impugned orders passed by both the Courts below and tried to distinguish the decision of the Hon'ble Supreme Court in the case of Nitinbhai Saevatilal Shah and Anr. (Supra) by submitting that in the present case the Criminal Cases were transferred from the Court of learned 4th Judicial Magistrate First Class, Surendranagar to the Court of learned Chief Judicial Magistrate, Surendranagar on the application submitted by the applicant himself and, therefore, it is submitted that when the cases were transferred by the learned Chief Judicial Magistrate, by passing administrative order under Section 408 of the Code of Criminal Procedure that too on the application submitted by the applicant-original accused, the applicant-original accused cannot be permitted to make grievance about the judgment and order passed by the Magistrate, who had not recorded the evidence and, therefore, it is submitted that the decision of the Hon'ble Supreme Court in the case of Nitinbhai Saevatilal Shah and Anr. (Supra) would not be applicable to the facts of the present case. It is submitted that if the contention on behalf of the applicant-original accused is accepted, in that case, in each and every case after recording of the evidence by one Magistrate the applicant-original accused may submit an application for transfer and the cases are transferred to another learned Magistrate and, thereafter, the order of conviction is passed and the accused will raise similar plea, then it will be giving premium to such dilatory tactics adopted by the applicant-original accused and, therefore, it is requested not to accept the above submission and it is requested to consider the cases on merits.
7. Shri L.B. Dabhi, learned APP appearing on behalf of the State has requested to pass an appropriate order considering the facts and circumstances of the case and considering the decision of the Hon'ble Supreme Court in the case of Nitinbhai Saevatilal Shah and Anr.(Supra)
8. Heard the learned advocates appearing on behalf of the respective parties at length and considered the entire record and proceedings of the aforesaid Criminal Cases, which have been received from the learned trial Court.
9. The short question, which is posed for consideration of this Court, is whether the successor Magistrate i.e. in the present case the learned Chief Judicial Magistrate could have relied upon and/or considered the substance of evidence recorded by the predecessor Magistrate i.e. the learned 4th Judicial Magistrate First Class, Surendranagar while passing the final judgment and order of conviction against the applicant- original accused?
10. It is not in dispute that in all the Criminal Cases the evidence has been recorded by the learned 4th Judicial Magistrate First Class, Surendranagar and only final judgment and order has been passed by the learned Chief Judicial Magistrate, Surendranagar. It is also not in dispute that all the Criminal Cases for the offence under Section 138 of the Negotiable Instruments Act have been tried by the learned learned Chief Judicial Magistrate as summary trial and, therefore, while conducting the summary trial the learned Magistrate is required to follow the procedure under Section 265 of the Code of Criminal Procedure. Identical question came to be considered by the Hon'ble Supreme Court in the case of Nitinbhai Saevatilal Shah and Anr.(Supra). In the case before the Hon'ble Supreme Court the summary trial was conducted for dishonour of the cheque under Section 138 of the Negotiable Instruments Act and the substance of evidence was recorded by the predecessor Magistrate and conviction was ordered by the successor Magistrate and to that the Hon'ble Supreme Court has held it bad in law and it is held that the successor Magistrate has to record the fresh substance of evidence and consequently the Hon'ble Supreme Court quashed and set aside the order of conviction confirmed up to the High Court and remanded the matter for re-trial in accordance with law and the Hon'ble Supreme Court considered Section 264 read with Section 326 of the Code of Criminal Procedure and also considered Sections 461 and 465 of the Code of Criminal Procedure. It is also required to be noted that in the case before the Hon'ble Supreme Court even the case was transferred from one Magistrate to another Magistrate with the consent of the applicant-original accused as well as the original complainant and both of them agreed that they have no objection if the successor Magistrate considers the evidence recorded by the predecessor Magistrate. Still, the Hon'ble Supreme Court has held as above. In the said decision in paragraph 17 the Hon'ble Supreme Court has observed and held 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 the 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 the 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.”
In paragraph 19 to 22 the Hon'ble Supreme Court has observed as under;
“19. The cardinal principal of law in criminal trial is that it is a right of an accused that his case should be decided by a Judge who has heard the whole of it. It is so stated by this Court in the decision in Pyare Lal Vs. State of Punjab. This principle was being rigorously applied prior to the introduction of Section 350 in the Code of Criminal Procedure, 1898. Section 326 of the new Code deals with what was intended to be dealt with by Section 350 of the old Code.
20. From the language of Section 326(3) of the Code, it is plain that the provisions of Sections 326(1) and 326(2) of the new Code are not applicable to summary trials. Therefore, except in regard to those cases which fall within the ambit of Section 326 of the Code, the Magistrate cannot proceed with the trial placing reliance on the evidence recorded by his predecessor. He has got to try the case de novo. In this view of the matter, the High Court should have ordered de novo trial.
21. The next question that arises is as to from what stage the learned Metropolitan Magistrate, Ahmedabad should proceed with the trial de novo.
22. As it has been seen that Section 326 of the new Code is an exception to the cardinal principle of trial of criminal cases, it is crystal clear that if that principle is violated by a particular Judge or a Magistrate, he would be doing something not being empowered by law in that behalf. Therefore, Section 461 of the new Code would be applicable.”
11. As stated hereinabove, the Hon'ble Supreme Court has also negatived the contention on behalf of the original complainant that, as the case was transferred from one Magistrate to another Magistrate on the purshis submitted by the applicant-original accused before the learned Magistrate declaring that they have no objection if the matter was decided after taking into consideration the substance of evidence recorded by the predecessor-in-office and, therefore, it was not open for the applicant-original accused to take such contention. The Hon'ble Supreme Court has specifically held that no amount of consent by the parties can confer jurisdiction where there exists none, on a Court of law nor can they divest a Court of jurisdiction, which it possess under the law and, therefore, despite the purshis submitted by the applicant- original accused, the Hon'ble Supreme Court quashed and set aside the order passed by the trial Court confirmed up to the High Court and remanded the Criminal Cases for re-trial in accordance with law.
12. Now so far as the submission on behalf of the original complainant that in the present case the case was transferred from the Court of learned 4th Judicial Magistrate First Class, Surendranagar to the Court of learned Chief Judicial Magistrate Magistrate on the application submitted by the applicant- original accused and, therefore, the decision of the Hon'ble Supreme Court would not be applicable is concerned the same cannot be accepted. Considering the decision of the Hon'ble Supreme Court in the case of Nitinbhai Saevatilal Shah and Anr.(Supra) in summary trial once the case is transferred from one learned Magistrate to another learned Magistrate on any ground and the evidence is recorded by the predecessor Magistrate, in that case, the successor Magistrate cannot pass an order of conviction relying upon the substance of evidence recorded by the predecessor Magistrate and the successor Magistrate has to record the fresh substance of evidence. The aforesaid would be applicable in all the cases where the cases which are conducted as summary trial are transferred from one Magistrate to another Magistrate on any ground i.e. either on an application made by either party or suo motu by higher forum or on transfer from one Magistrate to another Magistrate or on non availability of the predecessor Magistrate. Once the Criminal Case, which is tried as summary trial, is transferred from one Magistrate to another Magistrate and the substance of evidence is recorded by the predecessor Magistrate, the successor Magistrate has to record the fresh substance of evidence and cannot rely upon the substance of evidence recorded by the predecessor Magistrate. Under the circumstances, considering the decision of the Hon'ble Supreme Court in the case of Nitinbhai Saevatilal Shah and Anr.(Supra) the impugned judgment and order of conviction passed by learned Chief Judicial Magistrate, Surendranagar in Criminal Case Nos. 348/2002; 466/2002 and 478/2002 cannot be sustained and the same deserves to be quashed and set aside and the matters are to be remanded for re-trial in accordance with law.
13. Once the judgment and order of conviction passed by the learned Chief Judicial Magistrate, Surendranagar are quashed and set aside, Special Criminal Applications preferred by the original complainant for compensation are not required to be decided and considered on its merits. Under the circumstances, the same are required to be disposed of.
14. In view of the above and for the reasons stated hereinabove, Criminal Revision Application Nos. 66/2010 to 68/2010 succeeds and the impugned judgment and order passed by the learned Additional Session Judge, Surendranagar in Criminal Appeal Nos. 1/2009 to 3/2009 upholding the conviction of the applicant of Criminal Revision Application Nos. 66/2010 to 68/2010 for the offence punishable under Section 138 of the Negotiable Instruments Act are hereby quashed and set aside and the matters are remanded to the learned Additional Chief Judicial Magistrate, Surendranagar for re-trial in accordance with law after recording fresh substance of evidence.
15. Having regard to the facts and circumstances of the case, the learned Chief Judicial Magistrate, Surendranagar is hereby directed to complete the trial of the Cases as expeditiously as possible and preferably within period of six months from the date of receipt of the writ of this Court.
16. The amount of Rs. 2,60,000/- deposited by the applicant of Criminal Revision Application No. 66/2010 to 68/2010 deposited pursuant to the earlier order passed by the learned Single Judge, which is deposited with the Registry of this Court dated 07/02/2012 is hereby directed to be transferred to the Court of learned Chief Judicial Magistrate, Surendranagar for which an appropriate order is to be passed by the learned Chief Judicial Magistrate, Surendranagar in accordance with law and on its own merits and subject to the ultimate outcome of the aforesaid Criminal Cases and the learned Chief Judicial Magistrate, Surendranagar is directed to invest the same in the name of Nazir in any nationalized bank initially for a period of nine months. Rule is made absolute accordingly so far as Criminal Revision Application Nos. 66/2010 to 68/2010 are concerned.
17. In view of allowing of Criminal Revision Application Nos. 66/2010 to 68/2010 and quashing and setting aside the order passed by both the Courts below, no further order is required to be passed in Special Criminal Application Nos. 1482/2010; 1484/2010 and 1485/2010 and they are disposed of accordingly. Similarly Criminal Miscellaneous Application Nos. 16624/2011; 16628/2011 and 16630/2011, which are filed for cancellation of bail also do not survive and they are required to be disposed of and are accordingly disposed of.
(M.R. SHAH, J.) siji