Appellant – original complainant 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 CJM, Patan, on 22.8.2008 in Criminal Case No.3390 of 2002. 2. According to the complainant, the accused was his friend before about one year of the complaint. The accused came to him and pursuaded him to take insurance cover for his family. Therefore, relying upon the assurance given by the accused, he gave Rs.2 lacs to the accused for insurance, but the accused failed to get his family covered by policy of insurance. Therefore, he demanded return of the amount paid to the accused. The accused gave cheque No.222332 dated 30.10.2002 for Rs.2 lacs drawn on Central Bank of India, Tilak Road, Ahmedabad branch. On presentation of the cheque in the bank, it returned unpaid on account of insufficient fund. Therefore, he gave notice to the accused making demand of unpaid cheque amount. The accused received the notice, but did not pay the amount claimed in the notice. Therefore, complaint under section 138 of the Act was filed.
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. Buch for the appellant and learned advocate Ms. Meghana Patel for learned advocate Mr. Popat 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. Buch submitted that the case was tried as a summary case and the learned Magistrate relied uon the evidence recorded by his predecessor. Therefore, trial is bad in law. He also submitted that though the parties by pursis Exh-116 agreed that they have no objection if the proceedings conducted by the predecessor is taken into account, but in view of decision of Nitinbhai Sevantilal Shah and another Vs. Manubhai Manjibhai Panchal and another reported in (2011) 9 SCC 638, the trial is vitiated and the Court committed error in relying upon the evidence recorded by the predecessor Magistrate and it caused serious prejudice to the complainant as acquittal is recorded. Therefore, the impugned judgment is required to be set aside and the case is required to be remanded to the trial Court for retrial.
6. Learned advocate Ms. Patel could not dispute the fact that the case was tried as summary case and the learned Magistrate, who delivered the judgment relied upon the evidence recorded by his predecessor.
7. On perusal of the record and proceedings of the trial Court, it appears that the case was tried as a summary case and the learned Magistrate, who delivered the judgment, relied upon the evidence recorded by his predecessor. It also emerges from the record that on transfer of Magistrate, again plea of the accused was recorded at Exh-115 and the accused filed pursis Exh-
116 stating that the case is tried as summary trial and as the learned Magistrate is transferred, de novo trial is required to be conducted, but the complainant is cross examined in detail and if the complainant is again examined, it would consume time and such repetition is not necessary and hence, he has no objection if the proceedings conducted by predecessor Magistrate is relied upon for further proceedings. The pursis bears endorsement of the learned advocate for the complainant that he has no objection. Thereafter, the Court passed the order that the case is tried as summary case and plea afresh is recorded and therefore, it is a case for de novo trial, but as the parties have adopted the evidence recorded earlier and as they did not want to lead evidence again and as the matter is at the stage of arguments, the pursis is recorded and the matter is kept for hearing of arguments. Thereafter, the learned Magistrate heard the oral submissions of the learned advocates for the parties and delivered the judgment.
8. It appears from the pursis Exh-116 filed by the accused that the accused agreed that he has no objection if the evidence recorded by predecessor Magistrate is adopted. Even, learned advocate for the complainant also did not object to that and the Court proceeded further with the case. 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.”
9. 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.
10. As observed earlier, accused filed pursis Exh-116 adopting the evidence recorded by predecessor Magistrate and the complainant also gave consent for the same. Therefore, the question is whether successor Magistrate could proceed further relying upon pursis Exh-116? In the said decision of Nitinbhai Sevantilal Shah (supra), the Court also observed as under:
18. The High Court by the impugned judgment rejected the contention regarding the proceedings having been vitiated under Section 461 of the Code, on the ground that the parties had submitted pursis dated 3.8.2001 and in view of the provisions of Section 465 of the Code, the alleged irregularity cannot be regarded as having occasioned failure of justice and thus can be cured. The reliance placed by the High Court, on the pursis submitted by the appellants before the learned Metropolitan Magistrate declaring that they had no objection if the matter was decided after taking into consideration the evidence recorded by his predecessor-in-office is misconceived. It is well settled 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 possesses under the law.”
11. In view of above, it is clear that no amount of consent by the parties can confer jurisdiction on a Court nor can they divest a Court of jurisdiction, which possesses under the law. Therefore, in view of the decision of the Hon'ble Supreme Court, the learned Magistrate, who delivered the judgment could not have relied upon the evidence recorded by his predecessor despite the consent of the parties.
12. It is stated in pursis Exh-116 that the complainant has been cross examined in detail, but that would not confer jurisdiction on the Court to proceed further. Therefore, also, the impugned judgment is required to be set aside and the case is required to be remanded to the trial Court.
13. In view of above, the appeal is allowed. The impugned Judgment and Order of acquittal passed by the learned CJM, Patan on 22.8.2008 in Criminal Case No.3390 of 2002 is set aside and the case is remanded to the trial Court for retrial in accordance with law.
14. The parties are directed to appear before the trial Court on 1.5.2012. If the accused fail 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.
15. R & P be sent back to the trial Court forthwith.
shekhar* (BANKIM.N.MEHTA, J.)