Appellant – original accused has preferred this appeal under section 378 of the Code of Criminal Procedure, 1973 and challenged the Judgment and Order of acquittal passed by the learned JMFC, Patadi on 19.9.2005 in Criminal Case No.456 of 1998. 2. According to the complainant, the complainant is a multipurpose society doing the business of marketing of various agriculture produce and had business transactions with the accused. On account of demand of outstanding amount, the accused gave cheque No.69871 on 31.8.1998 for Rs.13,07,196/- drawn on Surendranagar District Cooperative Bank Limited, Patadi branch. On presenting the cheque in the bank, the same returned unpaid with the endorsement “Insufficient Fund”. Therefore, Notice was served to the accused on 18.9.1998, but the accused did not pay the outstanding amount of unpaid cheque. Therefore, complaint under section 138 of the Act was filed in the Court of learned JMFC at Patadi and it was registered as Criminal Case No.456 of 1998.
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, further statement of the accused was recorded under section 313 of the 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 learned advocate Mr. Thakkar for the appellant, learned advocate Mr. Brahmbhatt for the accused at length and in great detail. I have also perused the impugned judgment and record and proceedings of the trial Court.
5. Learned advocate Mr. Thakkar submitted that cases under section 138 of the Act are required to be tried in summary manner and accordingly, present case was also tried as summary case. But during the proceedings in the trial Court, two Magistrates recorded part of the evidence and the third Magistrate delivered the judgment. Therefore, the trial was vitiated and hence, the impugned judgment is required to be set aside and the case is required to be remanded back to the trial Court. He relied upon decision of Nitinbhai Sevantilal Shah and another Vs. Manubhai Manjibhai Panchal and another reported in (2011) 9 SCC 638.
6. Learned advocate Mr. Brahmbhatt did not dispute the fact that the evidence was recorded by two Magistrates and the judgment was delivered by the third Magistrate, but he submitted that the learned Magistrate, who delivered the judgment, was justified in recording acquittal as he appreciated the evidence and therefore, no interference is warranted in the impugned Judgment.
7. On perusal of the record and proceedings of the trial Court, it emerges that the Magistrate who recorded the evidence did not decide the case and his successor, relying upon the evidence adduced by his predecessor, delivered the judgment acquitting the accused. In the decision of Nitinbhai Sevantilal Shah (supra), the Hon'ble Supreme Court has observed 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 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 the law laid down by the Hon'ble Supreme Court in the aforesaid decision, it is clear from the record of this case that the learned Magistrate, who recorded the evidence, did not deliver the judgment, but his successor, relying upon the evidence adduced by his predecessor, delivered the judgment. Therefore, the successor Magistrate, who delivered the judgment could not have appreciated the substance of evidence properly recorded by his predecessor and hence, serious prejudice is caused to the complainant, as the Court acquitted the accused. Hence, the learned Magistrate, who decided the matter, failed to decide the case effectively and to do substantial justice. Therefore, the impugned Judgment 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 view of above, the appeal is allowed. The impugned Judgment and Order of acquittal passed by the learned JMFC, Patadi on 19.9.2005 in Criminal Case No.456 of 1998 is set aside and the case is remanded to the trial Court for retrial in accordance with law.
10. The parties are directed to appear before the trial Court on 30.3.2012. If the accused fails to appear before the trial Court as directed by this Court, learned Magistrate trying the case is at liberty to take appropriate action to secure their presence.
11. R & P be sent back to the trial Court forthwith.
shekhar* (BANKIM.N.MEHTA, J.)