Mahendra vs Vivek

M.L. Tahaliyani, J.—Heard learned Counsel Mrs. Usha Gujar for the petitioner and learned Counsel Mrs. Sonali Saware for the respondent. Rule, Rule made returnable forthwith by consent of the learned Counsel appearing for the parties.

The petitioner in the present petition was the complainant in Summary Criminal Case No. 498/09 decided by the Judicial Magistrate First Class, Court No. 2, Amravati. The respondent Vivek @ Raju Deshmukh was convicted by the trial Court for the offence punishable u/s 138 of the Negotiable Instruments Act and was sentenced to suffer rigorous imprisonment for six months and to pay a compensation of Rs. 3,50,000/- to the petitioner. Feeling aggrieved by the said judgment and order, the respondent filed an appeal before the Sessions Court. The said Criminal Appeal No. 46/2012 was decided by the learned Additional Sessions Judge I, Amravati. The learned Additional Sessions Judge set aside the order passed by the Judicial Magistrate First Class and directed that there should be de novo trial of the case pending before the Magistrate. This decision was taken mainly on the ground that part of the evidence was recorded by the predecessor of the Magistrate who had pronounced the judgment. The learned Additional Sessions Judge, therefore, was of the view that the successor in office should have heard the complaint afresh. The learned Additional Sessions Judge has placed reliance on the judgment of Nitinbhai Saevatilal Shah and Another Vs. Manubhai Manjibhai Panchal and Another, and has stated that since the case in question was a summary trial, the successor in office should not have taken into consideration the evidence recorded by his predecessor.

It appears that the judgment of this Court in Criminal Application (APL) No. 671/2011 was not placed before the learned Additional Sessions Judge. This Court has considered at length the procedure normally adopted for recording evidence of cases u/s 138 of the Negotiable Instruments Act. This Court has said that the label or category of the case as summary case by itself will not be sufficient to attract the provisions of Section 326(1) and (3) of the Criminal Procedure Code. In an elaborate judgment, after having taken note of the observations made by the Supreme Court in the case of Nitinbhai Saevatilal Shah and Another Vs. Manubhai Manjibhai Panchal and Another, this Court has said that if the evidence in a case involving Section 138 of the Negotiable instruments Act has been recorded in detail like evidence in a summons case, there would be no de novo trial on change of the Magistrate. The observations made by this Court in paragraphs 8 and 9 in the said criminal application can be reproduced as under:- 8. Comparison of Sections 263 and 254 of the Code of Criminal Procedure would clearly indicate that while hearing the case summarily the Magistrate is suppose to record notes of evidence, while hearing the case as summons case the Magistrate has to hear the prosecution and take all such evidence as may be produced in support of the prosecution and also to hear the case and take all such evidence as he produces in his defence. The reason for de novo trial can be found in the judgment of the Hon''ble Supreme Court, cited supra. It will not be out of place to reproduce certain portion of paragraph 14 of the said judgment, which reads as under:

....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.

It is thus, clear that even recording of evidence is not full-fledged and is in the condensed form (notes of evidence), the succeeding Magistrate would not follow the real meaning of the notes and there is always a chance of miscarriage of justice. Similar interpretation has been adopted by this Court (Coram: Ranjit More, J.) in Writ Petition No. 3745 of 2011.

As such, while applying the ratio of the judgment of the Hon''ble Supreme Court in Nitinbhai (supra) what the successor in office is required to examine is whether the evidence recorded by his predecessor was simply in the notes form or was recorded as per procedure applicable to the summons case. If only notes of evidence are recorded adopting the procedure for summary cases, the successor in office will have to record the evidence afresh. It is noted that in most of the cases labelled as ''summary cases'' the evidence is recorded by adopting the procedure applicable to the ''summons cases''. There could hardly be a case u/s 138 of the Negotiable Instruments Act where the Magistrate has strictly adopted procedure applicable to summary cases. It is observed that in almost all the cases, the evidence is recorded in detail and in some cases the cross-examination goes on for days together. Therefore, the successor in office is not supposed to go by the label applied to the case. He is under obligation to examine the record and proceedings and see that if the evidence is recorded by adopting the procedure applicable to summons cases there is no repetition of recording of evidence so that the valuable time of the Court is saved.

In the present case also, admittedly the evidence has been recorded in detail. The case has been registered as a summary case. As already indicated by me, label or category of the case by itself will not attract the provisions of Section 326(1) and (3) of the Criminal Procedure Code. There shall not be mechanical de novo trial on change of the Magistrate, only because the case was categorised as a summary case. If the evidence was recorded in detail by the Magistrate, which can be followed by the successor in office easily, there is no necessity of the de novo trial. In the present case also the evidence has been recorded in detail and therefore, order passed by the Additional Sessions judge cannot be sustained. Hence, I pass the following order.

The order passed by the Additional Sessions Judge-1, Amravati in Criminal Appeal No. 46 of 2012 setting aside order passed by the Judicial Magistrate First, Class, Court No. 2, Amravati in Summary Criminal Case No. 498 of 2009, is set aside.

The directions of the learned Additional Sessions Judge to the Judicial Magistrate First Class that there should be de novo trial, are also set aside.

The appeal shall be heard by the Additional Sessions Judge/Sessions Judge, Amravati on merits.

Interim order, if any, stands vacated.

Rule is made absolute in the above terms.