JUDGMENT :

Ajit Borthakur, J.

1. As both the above Criminal Revisions filed under Sections 397/401 Cr.P.C. are directed against two orders, dated 12.07.2018, passed by the learned Addl. Chief Judicial Magistrate, Sonitpur at Tezpur in NI Case No. 21/2017 and NI Case No. 43/2017 under Section 138 of the Negotiable Instruments Act, 1883 ('NI Act' for short) involving common questions of procedural law, I propose to decide the same by this common judgment and order.

2. Heard Mr. H.J. Tamuli, learned counsel for the petitioner and Mr. K.C. Deka, learned counsel appearing for the respondent No. 1/complainant as well as Mr. R.J. Boruah, learned Addl. Public Prosecutor, Assam for the State/respondent No. 2. Also heard Mr. Z. Kamar, learned Senior counsel appearing as the Amicus Curiae.

3. The learned Addl. CJM, Sonitpur at Tezpur fixed the above mentioned two NI Act cases for additional evidence, by the impugned order, dated 12.07.2018, so as to enable the respondent No. 1/complainant to mark and exhibit a bank statement in NI Case No. 21/2017 and a lease agreement in NI Case No. 43/2017 for the purpose of fair adjudication.

4. The petitioner being aggrieved by the impugned orders, dated 12.07.2018, has raised the following legal issues:-

(i) Section 143 of the NI Act categorically states that notwithstanding anything contained in the Code of Criminal Procedure, all offences contained in Chapter XVII shall be tried by a Judicial Magistrate, 1st class or by a Metropolitan Magistrate and the provisions of Sections 262 to 265 Cr.P.C., procedure of summary trial, shall, as far as may be, apply to such proceedings. Further, Section 260 Cr.P.C. read with Section 143 of the NI Act shows that if it appears to the Magistrate that a sentence of imprisonment exceeding 1(one) year may have to be passed, for reasons to be recorded, the case may be tried as a summons case instead to try summarily, the witnesses may be recalled and proceed to rehear the case. However, in the instant cases, the learned Magistrate did not pass any order as to why the aforesaid proceedings have not been tried summarily; and

(ii) That though Section 326 Cr.P.C. categorically states about conviction or commitment, based on evidence partly recorded by one Judge or Magistrate and partly by another, this procedure shall not apply to summary trial, and as such, in a case under Section 138 of the NI Act, to which the procedure laid in Section 143 is applicable, the successor Magistrate cannot allow any additional evidence to be adduced by the complainant.

5. Mr. H.J. Tamuli, learned counsel for the petitioner/accused contended that a perusal of the Section 143 of the NI Act reveals that in a proceeding under Section 138 of the said Act, the Magistrate should try the case summarily, if he is of the opinion that the case may warrant a conviction of the accused and pass a sentence of imprisonment exceeding one year, for reasons to be recorded and try as summons case. According to Mr. Tamuli, as the learned Magistrate did not form any such opinion, based on the facts and circumstances to try as summons case, he cannot act on the evidence recorded by his predecessor and allow the respondent/complainant, in view of Section 326(3) Cr.P.C., to produce any additional evidence and as such, the impugned orders and the proceedings are liable to be set aside. In this connection, Mr. Tamuli has relied on the judgment of the apex Court rendered in Nitinbhai Saevantilal Shah & another Vs. Manubhai Manjibhai Panchal and another, reported in (2011) 9 SCC 638.

6. Per contra, Mr. K.C. Deka, learned counsel for the respondent No. 1/complainant, contended that Section 143 of the NI Act empowers the trial Magistrate either to follow the summary procedure provided in Chapter XXI Cr.P.C. or summons procedure in chapter XX Cr.P.C., if he sees reason that in the facts and circumstances, the punishment of more than 1(one) year imprisonment is likely to be passed against the accused and further, if he decides