1. This appeal is directed against the judgment and order dated 25th March, 2008 passed by the learned Metropolitan Magistrate, Court No.16, Ahmedabad in Criminal Case No.770/2004 whereby he has acquitted the respondent- accused of the charges levelled against him under section 138 of the Negotiable Instruments Act, 1881.
2. At the outset, Mr. Y.F. Mehta, learned counsel for the appellant drew the attention of the court to the record and proceedings of the case to submit that in the facts of the present case, initially the evidence had been recorded by the learned Metropolitan Magistrate, Court No.5. However, subsequently, the matter was transferred to the court of the learned Chief Metropolitan Magistrate and was assigned to the learned Metropolitan Magistrate, Court No.16, who has recorded the remaining part of the evidence and then passed the impugned judgment and order dated 25th March, 2008. The attention of the court was invited to the decision of the Supreme Court in the case of Nitinbhai Saevatilal Shah and another v. Manubhai Manjibhai Panchal and another, (2011) 9 SCC 638, to submit that it is one of the important principles of criminal law that the judge who hears and records the entire evidence must give judgment. Section 326 is an exception to the rule that only a person who has heard the evidence in the case is competent to decide whether the accused is innocent or guilty. The section is intended to meet the case of transfers of Magistrates from one place to another and to prevent the necessity of trying from the beginning all cases which may be part-heard at the time of such transfer. However, sub-section (3) of section 326 makes it more than evident that sub-section (1) which authorises the Magistrate who succeeds the Magistrate who had recorded the whole or any part of the evidence in a trial, to act on the evidence so recorded by his predecessor, does not apply to summary trials. The prohibition contained in sub-section (3) of section 326 of the Code is absolute and admits of no exception. Where a Magistrate is transferred from one station to another, his jurisdiction ceases in the former station when the transfer takes effect. It was submitted that in the facts of the present case, the trial is in the nature of summary trial, under the circumstances, a Magistrate who succeeds the Magistrate who recorded the part or the whole of the evidence cannot act, on the evidence so recorded by his predecessor. Under the circumstances, the entire proceeding stands vitiated. Hence, the impugned judgment and order deserves to be quashed and set aside on this ground alone and the matter is required to be remitted to the trial court for deciding the same afresh.
3. Mr. Suren M. Shah, learned counsel for the respondent-accused is not in a position to controvert the submissions advanced by the learned counsel for the appellant.
4. In the light of the aforesaid position, it is not necessary to set out the facts and the evidence recorded during the course of trial in detail.
5. The Supreme Court in the case of Nitin Saevatilal Shah (supra) has held thus:
13. In fact, Section 326 deals with part-heard cases, when one Magistrate who has partly heard the case is succeeded by another Magistrate either because the first Magistrate is transferred and is succeeded by another, or because the case is transferred from one Magistrate to another Magistrate. The rule mentioned in Section 326 is that the second Magistrate need not rehear the whole case and he can start from the stage the first Magistrate left it.
14. However, a bare perusal of sub-section (3) of Section 326 makes it more than evident that sub-section (1) which authorises the Magistrate who succeeds the Magistrate who had recorded the whole or any part of the evidence in a trial to act on the evidence so recorded by his predecessor, does not apply to summary trials. The prohibition contained in sub-section (3) of Section 326 of the Code is absolute and admits of no exception. Where a Magistrate is transferred from one station to another, his jurisdiction ceases in the former station when the transfer takes effect.
15. Provision for summary trials is made in chapter XXI of the Code. Section 260 of the Code confers power upon any Chief Judicial Magistrate or any Metropolitan Magistrate or any Magistrate of the First Class specially empowered in this behalf by the High Court to try in a summary way all or any of the offences enumerated therein. Section 262 lays down the procedure for summary trial and sub-section (1) thereof inter alia prescribes that in summary trials the procedure specified in the Code for the trial of summons case shall be followed subject to the condition that no sentence of imprisonment for a term exceeding three months is passed in case of any conviction under the chapter.
16. The manner in which the record in summary trials is to be maintained is provided in Section 263 of the Code. Section 264 mentions that:
“264. Judgments in cases tried summarily.- In every case tried summarily in which the accused does not plead guilty, the Magistrate shall record the substance of the evidence and a judgment containing a brief statement of the reasons for the finding.”
Thus, the Magistrate is not expected to record full evidence which he would have been, otherwise required to record in a regular trial and his judgment should also contain a brief statement of the reasons for the finding and not elaborate reasons which otherwise he would have been required to record in regular trials.
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-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 witnesses. 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 the 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.
20. From the language of Section 326(3) of the Code, it is plain that the provisions of Sections 326(1) and 326(2) of the new Code are not applicable to summary trials. Therefore, except in regard to those cases which fall within the ambit of Section 326 of the Code, the Magistrate cannot proceed with the trial placing reliance on the evidence recorded by his predecessor. He has got to try the case de novo. In this view of the matter, the High Court should have ordered de novo trial. “
6. Examining the facts of the present case in the light of the principles enunciated hereinabove, a perusal of the Rojnama of the case reveals that initially the deposition of the complainant – Sureshchandra Vadilal Shah was recorded by the learned Metropolitan Magistrate, Court No.5, Ahmedabad, on 1st September, 1999. Thereafter, the cross-examination of the said witness was also recorded by the same learned Metropolitan Magistrate on 19th February, 2000 and on various other dates. On or about 6th November, 2001, the case came to be transferred to the court of the learned Chief Metropolitan Magistrate. It appears that the said case was then assigned to the learned Metropolitan Magistrate, Court No.16 who thereafter recorded the deposition of the other witnesses and delivered the impugned judgment and order. It may be noted that there is no dispute that in the present case the proceeding before the trial court was in the nature of a summary trial. The record clearly shows that the evidence had been partly recorded by the learned Metropolitan Magistrate, Court No.5 and thereafter the remaining part of the evidence came to be recorded by the learned Metropolitan Magistrate, Court No.16. Under the circumstances, the above referred decision of the Supreme Court would be squarely applicable to the facts of the present case inasmuch as part of the evidence has been recorded by the Magistrate who succeeded the Magistrate who had recorded the part of the evidence. Thus, the successor Magistrate had no authority to proceed with the trial at the stage his predecessor had left it and was required to record the evidence afresh. As held by the Supreme Court in the above referred decision, except in regard to those cases which fall within the ambit of section 326 of the Code, the Magistrate cannot proceed with the trial placing reliance on the evidence recorded by his predecessor. He has to try the case de novo. The impugned judgment and order, therefore, stands vitiated as having been passed in breach of the provisions of the Code, and as such, cannot be sustained.
7. For the foregoing reasons, the appeal succeeds and is accordingly allowed. The impugned judgment and order dated 25th March, 2008 passed by the learned Metropolitan Magistrate, Court No.16, Ahmedabad, in Criminal case No.770/2004 is hereby quashed and set aside. The matter shall stand remitted to the concerned court, which shall try the case denovo.
8. However, having regard to the fact that this is an old case, the concerned court is requested to decide the case as expeditiously as possible and preferably within a period of four months from the date of receipt of a copy of this judgment.
( Harsha Devani, J. ) hki