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GUJARAT HIGH COURT
M.R. Shah, J
Ramjibhai Haribhai Chaudhari —Applicant
versus
State of Gujarat and Anr. —Respondent
Cri Rev. App. No. 549 of 2010
Decided on 4.10.2012
Counsel for the Parties:
For the Applicant No. 1:Amit N. Chaudhary, Advocate.
For the Respondent No. 1:Chetna Shah, Advocate.
For the Respondent No. 2:Y.M. Thakore, Advocate.
IMPORTANT POINT
In summary trial successor Magistrate has no authority to proceed with trial from the stage at which his predecessor has left.
Headnote:Negotiable Instruments Act, 1881—Sections 138 and 143—Criminal Procedure Code, 1973—Sections 262 and 326—Dishonour of cheque—Conviction—Summary trial—Unless and until after hearing parties to complaint specific order is passed by Magistrate not to proceed further with trial as summary trial, all trials for offences under Chapter XVII of Negotiable Instruments Act shall be and to be tried as summary trial only—Merely because predecessor Magistrate has recorded entire evidence and/or proceeded further with trial as if it is summary trial, unless a specific order to that effect is passed, after hearing the parties, as provided under proviso to Section 143, trial for offence under Section 138 would not become summons trial automatically—As trial for offence under Negotiable Instruments Act has to be tried as a summary trial, successor Magistrate has no authority to proceed with trial from the stage at which his predecessor has left and successor Magistrate was required to proceed further with trial de novo—Even if predecessor Magistrate has recorded entire evidence, still, trial for offence under Section 138 of Negotiable Instruments Act shall be tried and/or conducted as summary trial only—Impugned judgment and order of conviction and sentence quashed—Matter remanded to Magistrate to proceed further with trial de novo. (Paras 6.01 to 7.00)
M.R. Shah, J.—Present Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure has been preferred by the petitioner original accused to quash and set aside the impugned Judgment and Order of conviction and sentence passed by the learned Judicial Magistrate (First Class). Mehsana in Criminal Case No. 1098 of 2004 dtd.16.4.2009, by which the petitioner-original accused has been convicted for the offence punishable under Section 138 of the Negotiable Instruments Act and ordered to undergo Simple Imprisonment for a period of six months with fine of Rs.5,000 and in default, to undergo further Simple Imprisonment for a period of One Month and further directed the petitioner/original accused to pay Rs.3,50,000 to the original complainant, towards compensation under Section 357(2) of the Code of Criminal Procedure. The petitioner herein original accused has also challenged the impugned judgment and Order passed by the learned appellate Court learned Additional Sessions Judge, Mehsana in Criminal Appeal No.47 of 2009 dtd.13.10.2010, by which the learned appellate Court has dismissed the said appeal preferred by the petitioner herein-original accused confirming the judgment and Order passed by the learned trial Court.
2.00. That the respondent No.2 herein-original complainant filed Criminal Case No. 1098 of 2004 against the petitioner herein - original accused in the Court of learned Judicial Magistrate (First Class). Mehsana for the offence under Section 138 of the Negotiable Instruments Act for dishonour of the cheque of Rs.3,50,000 dtd.5.2.2004 drawn on Sarvodaya Commercial Cooperative Bank Limited, Mehsana Branch. It was the case on behalf of the complainant that when the said cheque was deposited, the same came to be dishonoured with the endorsement “insufficient fund” and thereafter the complainant issued and served statutory notices dtd.12.2.2004 by RPAD as well as UPC and though the notices came to be served, the amount under the cheque in question was not paid and therefore, the respondent No.2-original complainant filed the aforesaid complaint and requested to convict the petitioner-original accused for the offence under Section 138 of the Negotiable Instruments Act.
2.01. That plea of the accused came to be recorded and he pleaded not guilty and therefore, he came to be tried.
2.02. Thereafter the complainant led evidence and thereafter Further Statement of the accused came to be recorded under Section 313 of the Code of Criminal Procedure. Thereafter, at the conclusion of the trial, the learned trial Court has convicted the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act for dishonour of the cheque and imposed punishment of Simple Imprisonment for a period of six months.
2.03. Being aggrieved by and dissatisfied with the Judgment and Order of conviction and sentence passed by the learned Judicial Magistrate (First Class), Mehsana, in Criminal Case No. 1098 of 2004 dated 16.4.2002 petitioner herein original accused preferred Criminal Appeal No.47 of 2009 before the learned Sessions Court, Mehsana and the learned appellate Court learned Additional Sessions Judge, Mehsana. by the impugned Judgment and Order dated.13.10.2010 has dismissed the said appeal confirming the Judgment and Order of conviction and sentence passed by the learned trial Court.
2.04. Being aggrieved by and dissatisfied with the Judgment and Orders passed by both the Courts below, petitioner herein-original accused has preferred present Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure.
3.00. Mr. Amit Chaudhary. learned Advocate appearing on behalf of the petitioner herein- original accused has vehemently submitted that in the present case, plea and evidence has been recorded by one learned Magistrate and thereafter the case was transferred to another learned Magistrate and the successor Magistrate has relied upon the evidence
