Important Point-Whenever successor Court orders a de novo trial, statements of witnesses recorded by predecessor can be used for contradicting those witnesses.

J.B. Pardiwala, J.

1. By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicant-the original accused calls in question the legality and validity of the order dated 3rd October, 2012 passed by the learned Metropolitan Magistrate (Negotiable Instruments Act, 1881), Court No. 30, Ahmedabad in the Criminal Case No. 6735 of 2008, by which the learned Judge took the view that the evidence recorded in summary case by a predecessor Court, cannot be used for contradiction before the successor Court. To put it in other words, the learned Judge took the view that whenever the successor Court orders a de novo trial, the statements of the complainant recorded by the predecessor Court cannot be used for contradicting the complainant or his witnesses, if any. The deposition of the complainant recorded by the predecessor Court becomes inadmissible or non-existent on account of the de novo trial. Since, a pure question of law falls for my consideration, I need not go much into the facts of the case. However, few basic facts may be stated thus:-

"2.1. The respondent No. 2 lodged a private complaint in the Court of the learned Metropolitan Magistrate (Negotiable Instruments Act, 1881), Court No. 30 at Ahmedabad against the applicant herein for the offence punishable under Section 138 of the Negotiable Instruments Act (for short, the Act). The complaint came to be registered as the Criminal Case No. 6735 of 2008. It appears from the materials on record that the Examination-in-Chief and the cross-examination of the complainant were concluded. Before me trial could be completed with judgment, the Supreme Court delivered a judgment in the case of Nitinbhai Sevantilal Shah vs. Manubhai Manjibhai Panchal, AIR 2011 SC 3076 : 2011 (5) GLR 3684 (SC), taking the view that in view of the provisions of the Section 326(3) of the Code, 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. The Supreme Court took the view that clause (3) of Section 326 of the Code does not permit the Magistrate to act upon the substance of the evidence recorded by his predecessor and therefore, in such circumstances, there should be a de novo trial."

2. Relying on the aforenoted decision of the Supreme Court, the complainant i.e. the respondent No. 2 gave an application dated 21st December, 2011 before me trial Court that the case should be conducted de novo.

3. The learned Metropolitan Magistrate vide order dated 30th April, 2012 allowed the application of the complainant preferred under Section 326 of the Code and ordered a de novo trial.

4. It appears that the complainant once again entered the witness box. Her Examination-in-Chief was completed. An objection was raised thereafter on behalf of the complainant to the very first question put to the complainant in her cross-examination.

5. The first question put by the defence Counsel to the complainant in her cross-examination was that in the past, her deposition was recorded. The Counsel appearing for the complainant raised an objection to such a question being put to the complainant on the ground that since the trial was being conducted de novo, the evidence recorded earlier by the predecessor Court has to be ignored completely and no question relating to such deposition recorded earlier can be put to the complainant.

6. It appears that the trial Court upheld the objection raised on behalf of the complainant on the ground that in a de novo trial, the successor Judge cannot act on the evidence so recorded by his predecessor, and therefore, no question relating to the earlier deposition can be put to the complainant.

7. Being dissatisfied with such a view taken by the trial Court, the accused has come up with this application.

8. Mr. Ekant Ahuja, the learned Advocate appearing for the applicant-accused vehemently submitted that the trial Court committed