IMPORTANT POINT
Where the case was tried as a summary case, the successor Magistrate had no authority to proceed with trial on basis of evidence recorded by the predecessor.

JUDGMENT

Bankim N. Mehta, J.—The appellant, original complainant, has preferred this appeal under Section 378 of the Code of Criminal Procedure, 1973 and challenged the judgment and order of the acquittal passed by learned 3rd Additional Civil Judge and Judicial Magistrate First Class, Surat, on 10.8.2009 acquitting the respondent accused for the offence under Section 138 of the Negotiable Instruments Act, 1881 (“the Act” for short).

2. According to the complainant the accused was his friend and was connected with jewellery business. As the accused was in need of finance of Rs.1,00,000 for his business, the accused made request to advance the amount. Therefore, he advanced Rs.25,000 on 6.2.1999 and another Rs.25,000 on the same date in cash. The accused gave receipt for the amount received by him. Thereafter on7.2.1999 another Rs.25,000 and further Rs. 25,000 were obtained by the accused as hand loan and receipt was passed in that regard. Thereby, the accused obtained Rs.1,00,000 towards hand loan. The accused gave cheque No.221541 dated 16.10.2002 for Rs.50,000 and cheque No. 221542dated 17.10.2002 for Rs.50,000 against the amount obtained by him. Cheques were presented in the bank on 18.10.2002 but both the cheques returned unpaid on account of .insufficient funds. Therefore, notice was served to the accused making demand of the unpaid cheques. The accused received the notice but did not pay the amount of unpaid cheques. Therefore, complaint under Section 138 of the Act was filed in the Court of learned Chief Judicial Magistrate at Surat and it was registered as Criminal Case No.170 of 2002.

3. The trial Court issued summons and the accused appeared and denied having committed the offence. Therefore, prosecution adduced evidence. At the end of recording of evidence, incriminating circumstances appearing in the evidence against the accused were explained to him. The accused explained the incriminating circumstances in his further statement recorded under Section 313 of the Code of Criminal Procedure, 1973. After hearing learned advocates for the parties, the trial Court by the impugned judgment acquitted the accused. Being aggrieved by the said decision, the complainant has preferred this appeal.

4. I have heard learned advocate Mr. Parth Tolia for the appellant and learned advocate Mr. Ajay Pandav for the respondent accused at length and in great detail. I have also perused the impugned judgment and record and proceeding of the trial Court.

5. Learned advocate Mr. Tolia mainly submitted that cases under Section 138 of the Act are tried in summary manner and therefore learned Magistrate cannot rely on the evidence recorded by his predecessor .He also submitted that in the present case, part of the evidence was recorded by one Magistrate and remaining part of the evidence and judgment was delivered by his successor Magistrate.

Therefore, the trial is vitiated and hence the case is required to be remanded to the trial Court for retrial. He relied on the decision of Hon’ble Supreme Court in the case of Nitinbhai Saevatilal Shah v. Manubhai Manjibhai Panchal.1

6. Learned advocate Mr. Pandav appearing for the respondent accused submitted that the present case is of the year 2009 and the decision of Hon’ble Supreme Court is delivered in the year 2011. Therefore, the said decision cannot be made applicable to the present appeal. He further submitted that the appellant has not raised this question in the memorandum of appeal and therefore, this Court cannot rely on the decision and remand the case. No other submissions are made by learned advocate Mr. Pandav for the respondent accused.

7. Section 143 of the Act provides that the offences under Chapter XVII of the Act shall be tried in a summary manner and provisions of Sections 262 to 265 of the Criminal Procedure Code shall, as far as may be, apply to such trials.

8. On perusal of the record it appears that part of the evidence was recorded by one Magistrate and his successor Magist