In summary trials, the succeeding magistrate cannot rely on the evidence recorded by a predecessor, ensuring fair trial rights.

1. The complainant in a prosecution for the offence punishable under S.138 of the Negotiable Instruments Act, 1881 (for short 'the NI Act') is the appellant since he is aggrieved by the judgment dated 05/08/2011 in STC No. 12515 of 2008 of the Court of Judicial First Class Magistrate - III, Kannur, by which the learned Magistrate acquitted the accused under S.255(1) of the CrPC.

2. The case of the complainant is that, the accused borrowed a total sum of Rs.5 lakhs from the complainant during the month of August 2006 and issued a post dated cheque dated 09/10/2006 towards the discharge of the said liability and when the said cheque presented for encashment, the same was returned dishonoured for the reason, 'funds insufficient' in the account maintained by the accused and the accused has not repaid the dishonoured cheque amount, inspite of the statutory notice served on the accused and thus according to the complainant, the accused has committed offence punishable under S.138 of the NI Act.

3. With the above allegation, by filing a complaint, the complainant approached the Court of Judicial First Class Magistrate - I, Kannur, wherein cognizance was taken and instituted STC No. 269 of 2007 and subsequently, when the accused appeared before the Court in pursuance to the process issued, the plea of the accused was recorded. Subsequently, the trial was proceeded further and the complainant was examined as PW 1 and Exts. P1 to P5 were marked. After closing the prosecution evidence, the accused was examined under S.313 of CrPC and accordingly, her statement was recorded under S.313. That being the procedural position of the trial, the case was made over to the Court of Judicial First Class Magistrate - III, Kannur, where the trial of the case was resumed and started defence evidence, during which DW 1 was examined and Exts. C1, C1(a) and C1(b) were marked. Finally, the present Trial Court after having considered the evidence and materials, came into a conclusion that accused has not committed the offence punishable under S.138 of the NI Act and accordingly she is acquitted under S.255(1) of CrPC. It is the above judgment of the Trial Court and the findings and order of acquittal that are challenged in this appeal.

4. I have heard Sri. P. P. Ramachandran and Sri. P. M. Habeeb, learned counsels for the appellant and the respondent respectively, and I have also perused the judgment of the Trial Court.

5. Without going into the merits of the case, the learned counsel for the appellant, after having invited my attention to S.326(3) of CrPC, and especially in the light of the decision of the Honourable Apex Court reported in Nitinbhai Saevatilal Shah and Another v. Manubhai Manjibhai Panchal and Another , 2011 (9) SCALE 583 : 2011 (3) KHC 840 : 2011 (3) KLJ NOC 23 : 2011 (4) KLT SN 2 : AIR 2011 SC 3076 : 2011 (9) SCC 638 submitted that, the matter requires reconsideration by the Trial Court after remanding the same, as the proceedings adopted by the Trial Court vitiated the findings. On the other hand, the learned counsel for the respondent submitted that the decision relied on by the counsel for the appellant is applicable only in case the accused is prejudiced due to the non - compliance of the procedure prescribed under S.326(3) of CrPC but in this case, the respondent / accused has no such grievance.

6. I have carefully considered the arguments advanced by the learned counsel for the appellant and the respondent. I have also perused the judgment of the Trial Court and carefully gone through the decision of the Honourable Apex Court cited supra.

7. It is beyond dispute that, cognizance for the offence punishable under S.138 of the NI Act based upon the complaint preferred by the appellant, was t