The court ruled that trying the case afresh due to the transfer of the presiding officer would lead to wastage of judicial time and resources, and therefore, the challenge to the trial court's decision was dismissed.

ORDER

1. By way of present petition, the petitioner has challenged the order dated 12.08.2022 passed by the Additional Sessions Judge No. 6, Bikaner (hereinafter referred to as ’the revisional court’), whereby the order dated 23.03.2022 passed by the Special Judicial Magistrate (N.I. Act Cases) No. 2, Bikaner, has been affirmed.

2. Shorn of unnecessary details, the facts germane for the present purpose are that the petitioner is facing trial for offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ’N.I. Act’) since 2012. After the evidence was over and matter reached at the stage of final arguments, an application dated 07.03.2022 came to be filed by the petitioner-accused captioned under Section 326(3) & 461 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ’the Code’).

3. It was inter alia contended that since case of dishonour of cheque under Section 138 of the N.I. Act is required to be tried as a summary case; on the change of Magistrate on account of transfer or otherwise, the trial should commence denovo.

4. Mr. Mohnot, learned counsel for the petitioner invited Court’s attention towards Section 326(3) of the Code and Section 143 of the N.I. Act to assert that cases under the N.I. Act are required to be tried as a summary case and in the event of a Magistrate having heard the matter gets transferred, next incumbent in the chair has to commence the trial denovo or afresh.

5. It is to be noted that case against the petitioner is pending since 2012 and charges were framed on 16.09.2012, whereafter, not only evidence of complainant but also of the accused has been recorded. The petitioner has taken part in the proceedings without raising any demur or protest about the case being tried as a summons case.

6. Since the case has been tried as a summons’ case and not as a summary case, the provisions contained in sub-section (3) of Section 326 of the Code do not apply in the present case.

7. This Court does not find any substance in the petitioner’s contention that on account of transfer of the earlier Presiding Officer, the case should be tried afresh. If the contention of the petitioner is accepted, it would lead to failure of justice because, in such event on account of transfer of the Presiding Officer, all unconcluded cases will have to be tried afresh. Such position would not only amount to wastage of precious judicial time but would also result in wastage of resources.

8. The petition is dismissed.

9. The stay application also stands disposed of accordingly.