The appellant, original complainant, has preferred this appeal under Section 378 of the Code of Criminal Procedure and challenged the judgement and order of acquittal passed by learned Judicial Magistrate First Class (First Court), Surat, on 24.7.2009 in Criminal Case No. 366 of 2001 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, he is doing business of selling chemicals and the accused are partners of Gurudev Processors. The accused purchased chemicals from him and the goods purchased was delivered to the accused. On making demand for payment of the price of the goods sold and delivered to the accused, the accused gave cheque No. 040671 for Rs. 21,800/- on 15.10.2000 drawn on the Surat Mercantile Co-operative Bank Limited, Kadodara Cross Road Branch. On presentation of the cheque in the bank, it returned unpaid with the endorsement “funds insufficient”. Therefore, notice through advocate was sent to the accused demanding the amount of unpaid cheque. The notice was received by the accused but did not pay the amount of unpaid cheque. Therefore, complaint under Section 138 of the Act was filed in the Court of learned Judicial Magistrate First Class (First Court), Surat and it was registered as Criminal Case No. 366 of 2001.
3. 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, incriminating circumstances appearing in the evidence against the accused were explained to them. The accused in their further statement recorded under Section 313 of the Criminal Procedure Code, stated that no transaction took place with the complainant and no goods are sent to them and no amount is outstanding and no cheque is given by the accused and false complaint is filed. After hearing learned advocates for the parties, the trial Court by the impugned judgement acquitted the accused. Being aggrieved by the said decision, the complainant has preferred this appeal.
4. I have heard learned advocate Mr. Hardik Dave for the appellant and learned advocate Mr. Shah for learned advocate Mr. Ravani for respondent No. 1 and learned advocate Mr. Samir Dave for respondent No. 2 at length and in great detail. I have also perused record and proceedings of the trial Court.
5. Learned advocate Mr. Hardik Dave submitted that part of the evidence is recorded by one Magistrate and his successor Magistrate recorded the remaining part of the evidence and 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.
6. Learned advocates Mr. Shah for respondent No. 1 and learned advocate Mr. Samir Dave for respondent No. 2 accused did not dispute the fact that part of the evidence was recorded by one Magistrate and the remaining part of the evidence and the judgement was delivered by his successor Magistrate relying on the evidence recorded by his predecessor.
7. On perusal of record and proceedings of the trial Court, it is not in dispute that learned Magistrate tried the case as summary trial and learned Magistrate who delivered the judgement did not record the evidence but relied on the evidence recorded by his predecessor. In the decision of NITINBHAI SAEVATILAL SHAH VS. MANUBHAI MANJIBHAI PANCHAL (supra), 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”.
8. 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 it would be difficult for him to decide the matter effectively and do substantial justice. Section 143 to 147 of the Act were inserted with effect from 6.2.2003. Section 143 provides that all the offences under Chapter VII shall be tried summarily and provisions of Sections 262 to 265 of the Criminal Procedure Code shall apply to the trial. Section 326(1) and (2) of the Code of Criminal Procedure provide for relying upon the evidence by successor Magistrate or Judge where Magistrate or Judge who recorded whole or part of evidence ceases to exercise jurisdiction and where case is transferred under the provisions of Code of Criminal Procedure from one Magistrate to another Magistrate or one Judge to another Judge. Section 326(3) of the Criminal Procedure Code provides that provisions of Section 326(1) and (2) shall not apply to summary trial. Therefore, where a Magistrate exercises power under Section 143 of the Act and ceases to exercise the jurisdiction or case is transferred under the provisions of the Code of Criminal Procedure, the successor Magistrate has no authority to proceed with the trial from a stage at which his predecessor has left it. It would be difficult for him to decide the matter effectively. In the present case as observed earlier, learned Magistrate delivered the judgement relying on the evidence recorded by his predecessor. Therefore, the successor Magistrate was not in a position to appreciate the evidence properly and decide the matter effectively and to do substantial justice. Therefore, serious prejudice is caused to the complainant as order of acquittal was passed and hence 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.
9. In the result, the appeal is allowed. The impugned judgement dated 24.7.2009 passed by learned Judicial Magistrate First Class (First Court), Surat, in Criminal Case No. 366 of 2001 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 23.4.2012. 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)