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 7th Additional Senior Civil Judge and JMFC, Nadiad on 23.11.2007 in Criminal Case No.2121 of 2003. 2. According to the complainant, he is the proprietor of a firm Modi Amichand Muljibhai. Accused are partners of Keyur & Brothers running the business in partnership. The accused obtained hand loan of Rs.1 lac from him on 13.5.2002 by Account Payee Cheque drawn on Union Mercantile Cooperative Bank Limited, Nadiad. Accused No.3, as partner of Keyur & Brothers, gave cheque No.199204 dated 18.9.2002 for Rs.1 lac drawn on Janta Cooperative Bank Limited, Nadiad for repayment of the amount advanced to them. On presentation of the cheque in the Bank, it returned on account of “Insufficient Fund”. Therefore, notice through advocate was served to the accused, which was received by accused Nos.1 and 2, but returned unserved to accused No.3 with the endorsement “not found”. Despite that the accused did not pay the amount of unpaid cheque. Therefore, complaint under section 138 of the Act was filed in the Court of learned CJM at Nadiad and it was registered as Criminal Case No.2121 of 2003.
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 advocates for the parties 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. Parikh 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 a summary case. He also submitted that the evidence was recorded by one Magistrate and his successor Magistrate, who did not record the evidence, delivered the judgment. Therefore, the trial is vitiated. 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 Ms. Bhatt and learned advocate Mr. Alvi could not dispute the fact that the evidence was recorded by one Magistrate and the judgment was delivered by the successor Magistrate, who did not record the evidence.
7. It emerges from R & P that the evidence was recorded by one Magistrate and, his successor, relying upon the evidence recorded by his predecessor, delivered the judgment. 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, when a case is tried as summary case, a Magistrate who succeeds the Magistrate who had recorded part or whole of the evidence cannot act on such evidence recorded by his predecessor. In the present case, it is not in dispute that the learned Magistrate, who recorded the evidence, did not deliver the judgment. Therefore, the learned Magistrate, who delivered the judgment was not in a position to appreciate the evidence recorded by his predecessor as only substance of evidence is being recorded in summary trial. Therefore, learned successor Magistrate, who delivered the judgment, was not in a position to decide the case effectively and to do substantial justice, as he relied upon the evidence recorded by his predecessor. Thereby, serious prejudice is caused to the complainant, as the trial Court has acquitted the accused. 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 7th Additional Senior Civil Judge and JMFC, Nadiad on 23.11.2007 in Criminal Case No.2121 of 2003 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 2.4.2012. 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.
11. R & P be sent back to the trial Court forthwith.
(BANKIM.N.MEHTA, J.) shekhar*