Mr. Huzefa Ahmadi, learned senior counsel appearing for the
appellant Bank pointed out that the law laid down by this Court in the
above authority is that when a proceeding is conducted as a summary
trial, and when one Magistrate has partly heard the case and is
succeeded by another Magistrate, that second Magistrate has to re-hear
the whole case afresh and he cannot start from the stage the first
Magistrate left it. There was no question of the High Court asking the
entire matter to be looked into by another Magistrate de novo, in the
present case because, in fact, the evidence had not been recorded in a
summary manner, but it was recorded in full. Mr. Sanjanwala, learned
counsel appearing for the respondents, on the other hand, submits that
the law laid down in Nitinbhai Saevatilal Shah & Anr. Vs. Manubhai
Manjibhai Panchal & Anr., (supra) be followed.
5. We have perused the notes of evidence which are produced on
record. They clearly show that the evidence in this case was recorded
in full and not in a summary manner. That being so, we cannot but
accept the submission of Mr. Ahmadi.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 968-971 OF 2013
(Arising out of SLP(C) Nos.4381-4384/2012)
MEHSANA NAGRIK SAHKARI BANK LTD. Appellant(s)
:VERSUS:
SHREEJI CAB CO.& ORS. ETC. Respondent(s)
Decided on; July 12, 2013.
Citation; 2013 (4)crimes 351 SC
1. Leave granted.
2. Heard Mr. Huzefa Ahmadi, learned senior counsel appearing for
the appellants and Mr. Shamik Sanjanwala, learned counsel appearing
for the respondents.
3. The only question raised in this appeal is as to whether the
High Court should have stayed the trial by relying upon the judgment
of this Court in Nitinbhai Saevatilal Shah & Anr. Vs. Manubhai
Manjibhai Panchal & Anr., (2011) 9 SCC 638.
3. The appellant Bank had filed a complaint before the competent
Court under Section 138 of the Negotiable Instruments Act, 1881
against respondent Nos.1 to 3. As the respondents wanted one
additional party to be added to that complaint, they filed an
application under Section 319 of the Code of Criminal Procedure before
the Additional Chief Judicial Magistrate, Mehsana. That application
having been rejected, a Criminal revision application was filed before
the Principal Sessions Judge, Mehsana. That Judge confirmed the order
passed by the Trial Court. Thereafter, the respondents filed an
application before the High Court for quashing and setting aside the
orders passed by the criminal courts. The High Court proceeded on an
entirely different premise and disposed of the application filed by
the respondents noting that the evidence in the matter had come to be
recorded by Additional Chief Judicial Magistrate, Mehsana. The
proceeding under Section 138 of the Negotiable Instruments Act is a
summary trial proceeding. Hence, the concerned successor Magistrate
had to record the evidence de novo and any order passed on the basis
of the evidence recorded by his predecessor was not valid. The High
Court relied upon the above judgment in support thereof and passed an
order directing a fresh recording of evidence. It is against this
order of the High Court that this appeal, by special leave, has been
filed.
4. Mr. Huzefa Ahmadi, learned senior counsel appearing for the
appellant Bank pointed out that the law laid down by this Court in the
above authority is that when a proceeding is conducted as a summary
trial, and when one Magistrate has partly heard the case and is
succeeded by another Magistrate, that second Magistrate has to re-hear
the whole case afresh and he cannot start from the stage the first
Magistrate left it. There was no question of the High Court asking the
entire matter to be looked into by another Magistrate de novo, in the
present case because, in fact, the evidence had not been recorded in a
summary manner, but it was recorded in full. Mr. Sanjanwala, learned
counsel appearing for the respondents, on the other hand, submits that
the law laid down in Nitinbhai Saevatilal Shah & Anr. Vs. Manubhai
Manjibhai Panchal & Anr., (supra) be followed.
5. We have perused the notes of evidence which are produced on
record. They clearly show that the evidence in this case was recorded
in full and not in a summary manner. That being so, we cannot but
accept the submission of Mr. Ahmadi.
6. In the facts and circumstances of the case, we allow this
appeal, set aside the order passed by the High Court and direct the
Additional Chief Judicial Magistrate, Mehsana, to proceed hereafter
from the stage where it is pending now. As far as the application of
the respondents for adding some other person to the complaint is
concerned, we are not inclined to accept that. It is for the
complainant to decide as to against which party it wants to proceed.
That application will stand rejected.
.........................J
(H.L. GOKHALE)
.........................J
(MADAN B. LOKUR)
New Delhi;
July 12, 2013.
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