Heard learned advocate Mr. Brahmbhatt for the appellant. Admit. 2. As learned advocate Mr. R.R. Shah appers for the respondent accused, bailable warrant is not requird to be issued.
3. With the consent of learned advocates for the parties, this appeal is taken up for final hearing.
4. The appellant complainant filed this appeal under Section 378 of the Code of Criminal Procedure, 1973 and challenged the judgement and order of acquittal passed by learned Judicial Magistrate First Class, Nadiad, on 7.8.2009 in criminal case No. 3859 of 2000 acquitting the respondent accused for the offence under Section 138 of the Negotiable Instruments Act, 1881 (“the Act” for short).
5. According to the complainant, the accused obtained Rs. 9 lakh as hand loan for his business. The accused gave cheque No. 72505 dated 17.5.2000 for Rs. 9 lakh drawn on Mehmadabad Urban Peoples Co-operative Bank Limited, Mehmadabad, towards repayment of the said amount. On presentation of the said cheque in the bank, it returned unpaid with endorsement “funds insufficient”. Therefore, notice was served to the accused who refused to accept the notice. As the accused did not pay amount of unpaid cheque, complaint was filed under Section 138 of the Act.
6. 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 statement of the accused under Section 313 of the Code of Criminal Procedure was recorded. After hearing learned advocates for the parties, the trial Court by impugned judgement acquitted the accused. Being aggrieved by the said decision, the complainant has preferred this appeal.
7. I have heard learned advocates for the parties at length and in great detail. I have also perused the papers supplied by the parties.
8. Learned advocate Mr. Brahmbhatt for the appellant mainly submitted that part of the evidence was recorded by one learned Magistrate and his successor recorded remaining part of the evidence and delivered the judgement. He also submitted that the case for the offence under Section 138 of the Act is required to be tried in summary manner. Therefore, the successor Magistrate was required to record the evidence afresh. However, he did not record the evidence afresh and relied upon the evidence recorded by his predecessor. Therefore, the trial is vitiated. Hence the impugned judgement is required to be set aside and 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 matter is required to be remanded to the trial Court for de novo trial.
9. Learned advocate Mr. Shah could not dispute the fact that part of the evidence was recorded by one learned Magistrate and remaining part of the evidence was recorded by his successor. Thereafter, again on his transfer, the judgement was delivered by another learned Magistrate.
10. In view of the above, it clearly emerges that learned Magistrate relied on the evidence recorded by his predecessors while delivering the judgement. Learned Magistrate who delivered the judgement did not record the evidence himself.
11. It appears from the record of the trial Court that learned Magistrate who delivered the judgement did not record entire evidence in the case but relied on the evidence recorded by his predecessor and delivered the judgement acquitting the accused. In the decision of NITINBHAI SAEVATILAL SHAH VS. MANUBHAI MANJIBHAI PANCHAL (supra), Hon'ble Supreme Court has ruled that when a case is tried as summary case a Magistrate who succeeds who had recorded 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 the 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 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 it would be difficult for a succeeding Magistrate himself to decide the matter effectively and to do substantial justice.
12. In light of the law laid down by Hon'ble Supreme Court, as observed earlier, in the present matter the Magistrate who recorded part of the evidence did not deliver the judgement but his successor Magistrate relying on the evidence recorded by his predecessor passed order of acquittal of the accused. Therefore, serious prejudice is caused to the complainant as the succeeding Magistrate was not in a position to appreciate the substance of evidence recorded by his predecessor and decide the matter effectively and to do substantial justice. Therefore, the impugned judgement is required to be set aside and the case is required to be remanded to the trial Court for retrial.
13. In the result, the appeal is allowed. The judgement and order of acquittal passed by the trial Court in Criminal Case No. 3859 of 2000 on 7.8.2009 is set aside and 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 9.4.2012. If the accused fails to appear before the trial Court as directed by this Court, learned Magistrate is at liberty to take effective steps to secure his presence.
(BANKIM N. MEHTA, J) (pkn)