Learned advocate Mr. Limbachia for the appellant seeks permission to delete name of unserved respondent No.
3. Permission as prayed for is granted. The appellant to carry CR.A/2602/2009 2/5 JUDGMENT out amendment forthwith.
2. The appellant, original complainant, has preferred this appeal under Section 378 of the Code of Criminal Procedure, 1973 and challenged the judgement and order of acquittal passed by learned Metropolitan Magistrate Court No. 12, Ahmedabad, on 30.5.2009 (2/6/2009) in Criminal Case No. 777 of 2001 acquitting the respondent accused for the offence under Section 138 of the Negotiable Instruments Act, 1881 ("the Act" for short).
3. According to the complainant, the accused entered into transaction with him for purchase of castor seeds. As per the statement of account, the accused paid Rs. 28,66,677/- and Rs. 41,89,364/- remained payable by him. The accused issued cheques Nos. 585977 for Rs. 3 lakh, cheque No. 585979 for Rs. 2 lakh and cheque No. 585980 for Rs. 2 lakh drawn on The Laxmi Vilas Bank Ltd., Gondal Road, Rajkot, towards payment. On presenting the cheques in the Bank, they returned unpaid with endorsement "insufficient fund". Therefore, notice dated 10.7.2001 was sent to the accused demanding the amount of unpaid cheques. The accused gave vague reply to the notice and did not pay the amount of unpaid cheques. Therefore, complaint under Section 138 of the Act was filed in the Court of learned 12th Metropolitan Magistrate, Ahmedabad and it was registered as Criminal Case No. 777 of 2001.
4. The trial Court issued summons and the accused appeared before the Court and denied having committed the offence. Therefore, the prosecution adduced evidence. On completion of recording of evidence, further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded. After hearing learned advocates for the parties, CR.A/2602/2009 3/5 JUDGMENT the trial Court by the impugned judgement acquitted the accused. Being aggrieved by the said decision, the complainant has preferred this appeal.
5. I have heard learned advocate Mr. Limbachia for the appellant, learned advocate Mr. Patel for the respondent accused and learned A.P.P. Ms. C.M. Shah for the respondent State at length and in great detail. I have also perused the record and proceedings of the trial Court.
6. Learned advocate Mr. Limbachia for the appellant mainly submitted that the offence under Section 138 of the Act is required to be tried in summary manner. He also submitted that in the present case part of the evidence was recorded by one learned Magistrate and the remaining part of the evidence was recorded and judgement was delivered by his successor. Therefore, in view of the decision of Hon'ble Supreme Court in the case of NITINBHAI SAEVATILAL SHAH VS. MANUBHAI MANJIBHAI PANCHAL reported in AIR 2011 SC 3076 the matter is required to be remanded to the trial Court for de novo trial.
7. Learned advocate Mr. Patel for the respondent accused submitted that part of the evidence was recorded by learned Magistrate who delivered the judgement and therefore it cannot be said that the Magistrate who recorded part of the evidence was not in a position to appreciate the evidence. Therefore, the judgement relied upon by learned advocate for the appellant does not apply to the facts of the present case. Therefore, the appeal is required to be dismissed.
8. It appears from the record of the trial Court that learned Magistrate who delivered the judgement did not record entire evidence in the case. Part of the evidence was recorded by his predecessor and the successor learned Magistrate CR.A/2602/2009 4/5 JUDGMENT recorded remaining part of the evidence. Thereafter, relying upon the part of the evidence recorded by his predecessor, delivered the judgement acquitting the accused. In the decision of NITINBHAI SAEVATILAL SHAH VS. MANUBHAI MANJIBHAI PANCHAL (supra), Hon'ble Supreme Court has ruled that when a case is tried as summary case a Magistrate who succeeds who had recorded 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 the 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 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 light of the law laid down by Hon'ble Supreme Court, as observed earlier in the present matter the Magistrate who recorded part of the evidence did not deliver the CR.A/2602/2009 5/5 JUDGMENT judgement but his successor Magistrate relying on the same evidence recorded acquittal of the accused. Therefore, serious prejudice is caused to the complainant as the succeeding Magistrate was not in a position to appreciate the substance of evidence recorded by his predecessor and decide the matter effectively and to do substantial justice. Therefore, the impugned judgement is required to be set aside and the case is required to be remanded to the trial Court for retrial.
10. In the result, the appeal is allowed. The judgement and order of acquittal passed by the trial Court in Criminal Case No. 777 of 2001 on 30.5.2009 (2.6.2009) is set aside and the case is remanded to the trial Court for retrial in accordance with law. The parties are directed to appear before the trial Court on 23.3.2012. If the accused fails to appear before the trial Court as directed by this Court, learned Magistrate is at liberty to take effective steps to secure his presence. Record and proceedings be sent back to the trial Court forthwith.
(BANKIM N. MEHTA, J) (pkn)