Rule. Ms.KM Shah, learned advocate waives service of rule for respondent No.1 and Mr.KP Raval, learned APP waives service of rule for respondent No.2 - State.
In both these matters, the petitioner is common and against him, respondent No.1 in Special Criminal Appln.No.326 of 2011 had filed Criminal Case No.10 of 1998 regarding the offence punishable u/s.138 of the Negotiable Instruments Act and against this applicant, respondent No.1 in Special Criminal Appln.No.2615 of 2010 had filed Criminal Case No.9 of 1998 u/s.138 of the NI Act. Therefore, considering the facts and circumstances of the case and with consent of both the sides, both these applications are taken up for final disposal today.
Having considered the submissions advanced by Mr.HA Dave, learned advocate for the petitioner, Ms.KM Shah, learned advocate for respondent No.1 and Mr.Raval, learned APP for respondent No.2 - State in connection with both these matters, it transpires that both these applications are filed challenging the order dated 30.11.2010 passed by the trial Court in application below Exh.92 in Criminal Case No.9 of 1998 and application below Exh.108 in Criminal Case No.10 of 1998. By virtue of said order, it transpires that the application filed by the petitioner herein, requesting issuance of summons to defence witness, came to be rejected.
However, considering the submissions advanced on behalf of both the sides, it transpires that the evidence adduced by respondent No.1 - complainant was already over and, thereafter, even the further statement of the petitioner came to be recorded. It has been submitted that the learned Judicial Officer, who recorded the evidence, is now not presiding over the Court, wherein both these criminal cases are pending. In above view of the matter, reliance was placed upon the case of Nitinbhai Saevatilal Shah & Anr.Vs.Manubhai Manjibhai Panchal & Anr.reported in (2011)9 SCC 638 wherein in the identical situation, in connection with part of the evidence, recorded by one Magistrate, and further evidence recorded by his learned successor Magistrate in case arising under the 138 of the NI Act, the Hon'ble the Apex Court observed that the learned successor Magistrate has to record the fresh evidence. In above view of the matter, now in the criminal cases, the concerned learned successor Magistrate has to record evidence afresh. Therefore, any order passed on the basis of the evidence recorded by his predecessor Magistrate, shall not survive, as the earlier evidence now cannot be read as an evidence.
In above view of the matter, the learned successor Magistrate, who is incharge of both these criminal cases, shall have to record the evidence afresh. When such is the situation, as discussed above, any order passed earlier in both these criminal cases, relying upon the evidence of the complainant, which was already there on record, cannot be now taken into consideration in view of the ratio laid down in Nitinbhai Saevatilal Shah's case (supra). This Court, therefore, is of the opinion that both the impugned orders passed by the trial Court, which are under challenge before this Court, do not survive.
In above view of the matter, the instant applications stand disposed of in light of the ratio laid down in Nitinbhai Saevatilal Shah's case (supra) and the learned successor Magistrate shall follow the ratio laid down in said case and shall try and dispose of the criminal cases in accordance with law. Accordingly, the petitions stand disposed of. D.S permitted.
(J.C.UPADHYAYA, J.) (binoy) Top