Hon'ble BHANDARI, J.—In these petitions, common question of law is involved thus were heard together and are decided by this common order.

2. The facts in brief in Criminal Misc. Petition No.2551/2012 are that a complaint for offence under section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act') was filed. During the course of trial, petitioner moved an application for re-trial as evidence cannot be used by successor Magistrate in summary trial. He should make fresh trial of the complaint. The application aforesaid was dismissed so as the revision petition. Hence, criminal misc. petition. In other two criminal revision petitions, applications of similar nature were dismissed by the trial court.

3. Learned counsel for petitioners submit that as per section 143 of the Act of 1881, complaint for offence under section 138 of the Act is to be tried summarily. It is as per the procedure given under section 262 to 265 CrPC. The conviction and sentence can however be for imprisonment upto one year and fine upto Rs.5000/-.

4. In view of the aforesaid, complaint for offence under Sec. 138 of the Act cannot be tried as summons case. In the instant case, evidence was recor-ded by the predecessor Magistrate thus as per Sec. 262 to 265 read with Sec. 326(3) CrPC, successor Magistrate cannot use that evidence. The application was moved for re-trial of complaint, however, it was dismissed erroneously treating it to be a summons case though no order for it was passed. The impugned orders have been passed in ignorance of Sec. 143 of the Act of 1881 so as the judgment of the Apex Court in the case of “Nitinbhai Saevatilal Shah & anr vs. Manubhai Manjibhai Panchal & anr”, reported as AIR 2011 SC 3076 = 2012(1) RLW 161 (SC). Prayer is accordingly to set aside the orders.

5. I have considered submissions of learned counsel for the parties and members of the Bar on the issue and perused the record of the cases.

6. The controversy pertains to the procedure for trial of a complaint under section 138 of the Act of 1881. Reference of section 143 of the Act of 1881 has been given thus it would be gainful to extract the provision aforesaid-

“143. Power of Court to try cases summarily.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials:

Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees:

Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code.

(2) The trial of a case under this section shall, so far as practicable, consistently with the interests of justice, be continued from day to day until its conclusion, unless the Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded in writing.

(3) Every trial under this section shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint.”

7. Section 143 to 147 of the Act of 1881 were amended by the Act of 2002 apart from other amendments. As per section 143 of the Act of 1881, case should be tried summa

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