JUDGMENT (1) Heard the respective Counsel appearing for the parties. (2) The applicant herein is raising exception to the order passed by the Judicial Magistrate, First Class (Special Court) in Summary Criminal Case No.8255 of 2007 dated 01/4/2010. The applicant is original complainant, who has tendered complaint against the respondent-original accused for commission of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the Act, 1881). It is not disputed that on receipt of the complaint, case is registered as summary criminal case and the process was directed to be issued on 02/8/2007. It further transpires that the complainant tendered his affidavit in the form of examination-in-chief on 12/01/2009 and he was cross-examined by the accused on 10/02/2009. Certain documents were presented by the complainant on record, which were given exhibit Nos. during the course of evidence. It appears that on several occasion, opportunity was given to the complainant to lead further evidence, however, it transpires that he failed to avail of the opportunity. THEreafter, statement of the accused as contemplated under Section 313 of Criminal Procedure Code came to be recorded on 14/8/2009. So also, the accused has presented on record his written submission on the same day. It appears from the record of the case that the matter was posted for arguments on 19/8/2009. It further transpires from the record that an application came to be tendered to the Court of Sessions by the applicant-original complainant for transfer of the matter from the leaned Magistrate trying the case to any other Magistrate. The said application was tendered on 27/8/2009 and the learned Sessions Judge issued order directing transfer of the matter on administrative ground to the Court of 6th J.M.F.C., in view of the order passed on 20/ 01/2010. The applicant, thereafter, filed pursis dated 12/02/2010 contending therein that enlisting of the matter for delivery of the judgment in the cause list is erroneous. It is contended that the complainant wants to lead further evidence in the matter, but he has not been given sufficient opportunity. The applicant, thereafter, filed pursis dated 12/02/2010 contending therein that enlisting of the matter for delivery of the judgment in the cause list is erroneous. It is contended that the complainant wants to lead further evidence in the matter, but he has not been given sufficient opportunity. It also further appears from the contentions raised by complainant that the case is registered as summary criminal case and as such it is not open for the transferee Magistrate to consider the evidence recorded by the earlier Magistrate and as such, as per Section 326 of the Code de novo trial has to be proceeded. Reliance was placed on several judgments of the Supreme Court and the High Court in support of the submission made in that behalf. The trial Magistrate, after extending opportunity to both the sides to address on the issue, proceeded to pass order on 01/4/2010 rejecting the contention raised by the applicant. The trial Court has recorded in the order that the matter has to be tried as summons case and the same was being tried as summons case by earlier Court and it is not necessary to record evidence afresh in the mater. The learned Magistrate, therefore, directed to place the matter for further stage, i.e. for final arguments. The order passed by the Magistrate during the continuance of the proceedings below Exh.1 is subjected to challenge in this application presented under Section 482 of the Code of Criminal Procedure. The Counsel appearing for the applicant contends that in view of the provisions of Section 143 of the Act, the offences under Chapter- XVII shall have to be tried by the Judicial Magistrate of First Class in accordance with the provisions prescribed in the Criminal Procedure Code for conducting summary trial i.e. Sections 262 to 265 of the Code. The Counsel appearing for the applicant contends that in view of the provisions of Section 143 of the Act, the offences under Chapter- XVII shall have to be tried by the Judicial Magistrate of First Class in accordance with the provisions prescribed in the Criminal Procedure Code for conducting summary trial i.e. Sections 262 to 265 of the Code. The Counsel further contends relying on the second proviso to Section 143 of the Act 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 there after recall any witness, who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code. It is contended that in the instant case, there is no order passed by the Magistrate directing to try the case as a Summons Case and as such, it has to be assumed that the trial in accordance with Section 143 of the Act is a summary trial and as such the evidence recorded by the earlier Magistrate prior to transfer of case cannot be taken into account by the transferee Judge. According to him the proviso to Section 326 of the Code, shall have no applicability to the present case. The Counsel appearing for the applicant has invited my attention to the proviso to Section 326 and contends that nothing in Section 326 shall apply to the summary trial and as such it is not open for the transferee Magistrate to consider the evidence already recorded. The learned Counsel has placed reliance on judgment in the matter of Pratibha Pandurang Salvi and others Vs. State of Maharashtra and another reported in 2010 CRI.LJ. 730 : [2010 ALL MR (Cri) 59] and contends that the provisions of Section 326 of the Code shall have no applicability to the case and the matter would be covered under Sections 262 to 264 of the Code and as such, the evidence recorded before the earlier Magistrate cannot be taken into account by the transferee Magistrate. 730 : [2010 ALL MR (Cri) 59] and contends that the provisions of Section 326 of the Code shall have no applicability to the case and the matter would be covered under Sections 262 to 264 of the Code and as such, the evidence recorded before the earlier Magistrate cannot be taken into account by the transferee Magistrate. (3) The learned Counsel appearing for the respondent has vehemently opposed the application and contended that there was ample opportunity given to the applicant/complainant to lead evidence, however, he did not avail of the same. It is contended that the evidence in the matter is recorded in the manner prescribed for recording evidence in a summons case. After examination of complainant was over, on account of his failure to lead further evidence, statement of the accused under Section 313, Cr.P.C. has also been recorded and the case is posted for hearing the arguments of the parties. It is contended that at the stage of hearing of the arguments, an application was moved for transfer of the case to another Magistrate and the learned Judge of the Sessions Court accepted the request of complainant and directed transfer of the matter to another Magistrate on administrative ground. It is contended that, it is wrong to assume that provisions of Section 326 of the Code will have no applicability in the facts of the case. It is further contended that provisions of Section 143(1) has to be read harmoniously with second proviso to Section 143 of the Act. In a case where the Court comes to conclusion on recording evidence of the parties in a summary way, the nature of the case is such that a sentence required to be imposed shall be beyond one year and in such case, it would be responsibility of the Magistrate to record reasons to that effect and direct trial of case as summons case and he may direct recall of witnesses for examination. It is contended that proviso to Section 142 has no applicability to the facts of the present case. The Counsel appearing for the respondent has also sought leave to place reliance on the judgment in the matter of Shivaji Sampat Jagtap Vs. It is contended that proviso to Section 142 has no applicability to the facts of the present case. The Counsel appearing for the respondent has also sought leave to place reliance on the judgment in the matter of Shivaji Sampat Jagtap Vs. Rajan Hiralal Arora and another reported in 2006 ALL MR (Cri) 2612 and contended that Section 143 of the Act gives an option to the Magistrate to try the case either in summary manner or by any other mode. The phraseology used in Section 143 : "....and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials" indicates that, option is with Magistrate to try case as summary case or conduct regular trial. It is further the contention of the learned Counsel for the respondent that in the instant matter, the Magistrate has recorded the evidence of the parties in a manner prescribed for recording evidence in a summary trial. This is not the case wherein the substance of examination of the witness is recorded as provided for conduct of summary trial. It is contended that the trial has proceeded as a summons trial and as such the provisions of Section 326 of the Code shall have applicability. (4) Having considered the arguments advanced by the respective Counsel appearing for the parties and on consideration of record, it transpires that the evidence in the matter has been recorded in the manner as prescribed for the summary trial. The evidence in the summary trial is required to be recorded as per the provisions of Sections 262 to 265 of the Code. In a trial in respect of commission of offence which is required to be tried in summary manner, the record is required to be maintained in accordance with Section 263 of the Code. The Court is obliged to record substance of evidence of witness while conducting the trial in a summary manner. After the substance of evidence of the witness is recorded, it would be obviously difficult for any other succeeding Court taking over the matter to consider the niceties of the matter and appreciate the evidence in its proper perspective. The Magistrate who has recorded the substance of examination has advantage of observing the demeanor of the witness, so also Magistrate has option to record only gist of examination. The Magistrate who has recorded the substance of examination has advantage of observing the demeanor of the witness, so also Magistrate has option to record only gist of examination. He may have his own impression about the witness and same would be reflected in his verdict. The advantage which the Magistrate who records the substance of the examination, cannot be passed over to the transferee Magistrate who takes up the proceedings at intermediate stage. It is probably a reason for incorporating Sub-section (3) of Section 326 of the Code. The restriction imposed by Section 326(3) applies only to the trials which are conducted in summary manner as has been already recorded above. In the instant manner, it is not a substance of the examination of the witness that is recorded by the earlier Magistrate, but proper statement of the witness is recorded. The accused has availed of the opportunity of cross-examination to the witness. Thus, the procedure followed in the instant matter is in respect of regular summary trial. In this view of the matter, restriction appearing in Sub-section (3) of Section 326 of the Code cannot be said to have applicability. The Counsel appearing for the applicant has contended that there is no order passed by the Magistrate as contemplated by second proviso to Section 143 of the Act for trial of the case in any other manner except as provided under Sections 262 to 265 of the Code. (5) The provision of proviso second to Section 143 of the Act has to be read in consonance with Sub-section (1) of Section 143. An option is left with Magistrate to try the case in the manner provided under Sections 262 to 265 of the Code or otherwise as a regular trial. The phraseology used in the Section "as far as may be" denotes that there is option available to the Magistrate. THEre may be circumstances wherein after recording the evidence, the Magistrate may gather impression that the case call for higher punishment and in such circumstance, the Magistrate can exercise his option thereby directing the trial of a case in any other manner and while issuing such direction, it is obligatory on the Magistrate to record the reasons. THEre may be circumstances wherein after recording the evidence, the Magistrate may gather impression that the case call for higher punishment and in such circumstance, the Magistrate can exercise his option thereby directing the trial of a case in any other manner and while issuing such direction, it is obligatory on the Magistrate to record the reasons. The second proviso to Section 143 comes in operation wherein the Magistrate forms his opinion that a case is such which calls for imposition of sentence of imprisonment for a term exceeding one year or for any other reason it would be undesirable to try the case summarily. On formation of such opinion, the Magistrate is expected to direct continuance of the trial in any other mode and while issuing such orders, it would be obligatory for him to hear the parties and record reasons. (6) In the instant matter, it cannot be assumed that the Magistrate has formed his opinion for issuing order as contemplated by second proviso of Section 143 of the Act. As has been stated above, Section 143(1) of the Act gives option to the Magistrate to try the case either in a summary manner or otherwise. The second proviso comes in operation only in the circumstance mentioned therein and it cannot be said that even at the stage of registering the complaint or at the stage of recording plea or before recording the evidence of the complainant, it would be obligatory for him to record reasons as contemplated by second proviso to Section 143 of the Act. Formation of opinion by the Magistrate that the case calls for imposition of sentence of imprisonment for a term exceeding one year or that any other reason exists, is a precondition for invoking second proviso which requires the Magistrate to record reasons and hear the parties. Section 264 of the Code provides for recording of substance of evidence of the witness while conducting the trial in respect of offence in a summary manner. In the instant matter, however, a detailed statement of witness has already been recorded by the Court. The procedure as contemplated by Sections 262 to 264 of the Code for conduct of trial in a summary manner is not observed by Magistrate in the instant matter. Therefore, there is no question of recall or re-examination of the witness, who has already been examined. The procedure as contemplated by Sections 262 to 264 of the Code for conduct of trial in a summary manner is not observed by Magistrate in the instant matter. Therefore, there is no question of recall or re-examination of the witness, who has already been examined. The obvious reason for insisting upon recording of reasons as contemplated by second proviso to Section 143 of the Act is that; when the Magistrate forms an opinion that the trial of a case is not required to be continued in a summary manner and there exist circumstances which call for continuance of trial in regular manner i.e. as summary case, it is obligatory upon him to recall witnesses when evidence is already recorded in summary manner. In such circumstances, in order to ensure that no prejudice is caused to either of the parties and with a view to assess desirability of the trial of a case which was initially being tried in a summary manner, as a regular summons trial, recording of reasons is insisted upon. In the instant matter as recorded above, the evidence of witness has already been recorded. Therefore, there arises no question of recalling the witness for the purpose of re-examination. In the facts and circumstances of the case, second proviso to Section 143 of the Act is, in fact, not attracted and it cannot be said that the whole trial is vitiated on account of failure to record reasons as contemplated by second proviso to Section 143 of the Act by Magistrate. The objection raised by the applicant in that regard is, therefore, required to be turned down. (7) The Counsel appearing for the respondent contended that while interpreting the provisions of Sections 262 to 265 of the Code as well as Section 143 of the Act, this Court in Shivaji's case (cited supra) has observed that second proviso to Section 143(1) of the Act empowers the Court to convert summary trial into summons case. The expression, as far as may be employed in Sub- section (1) of Section 143 of the Act and the second proviso to Sub-section 143 confer sufficient powers on the Court, to try the case in the manner provided by the Code i.e. the procedure ordinarily followed for trying regular summons case. The expression, as far as may be employed in Sub- section (1) of Section 143 of the Act and the second proviso to Sub-section 143 confer sufficient powers on the Court, to try the case in the manner provided by the Code i.e. the procedure ordinarily followed for trying regular summons case. While considering the argument in support of applicability of Sections 262 to 264 of the Code to the trial of the offences under the Negotiable Instruments Act, the learned Single Judge of this Court in Shivaji's case [2006 ALL MR (Cri) 2612] (cited Supra) in paragraph 18 of the judgment has observed as under: "Under Section 263 in Chapter XXI of the Code, in every case tried summarily, the Magistrate shall enter, in such form as the State Government may direct, is expected to "maintain the record" as mentioned in clauses (a) to (j) of that section. Section 264 provides that in every case tried summarily in which the accused does not plead guilty, the Magistrate shall record "the substance of the evidence" and a judgment containing "a brief statement of the reasons" for the finding. Thus, the indicator to know as to whether the case under section 138 of the Act has been or is being tried summarily so as to attract the provisions contained in sub- section (3) of section 326 of the Code is the compliance of sections 263 and 264 of the Code. In other words, a case, which is triable as summarily, and in which the record of the proceedings has been prepared in accordance with the provisions of sections 263 and 264 of the code could be stated to have been tried summarily for the purpose of section 326(3) and in that case the evidence recorded by one Magistrate cannot be read in evidence by succeeding Magistrate. The succeeding Magistrate, however, in a case, where the procedure contemplated under sections 263 and 264 of the Code in particular has not been followed, he need not hold a trial de novo. The succeeding Magistrate, however, in a case, where the procedure contemplated under sections 263 and 264 of the Code in particular has not been followed, he need not hold a trial de novo. In short, if no record as per sections 263 and 264 has been or is being maintained by the Magistrate and the case has been or is being tried as a regular summons case and not tried in a summary way as contemplated under sections 262 to 265 of the Code, such case shall not be considered as tried in summary way, though triable summarily as provided for under sub-section (1) of section 143 of the Act, so as to attract the provisions of section 326(3) of the Code. THErefore, the evidence recorded by one Magistrate in such a case may be legally read in evidence by his successor and no de novo trial shall be necessary. From the above discussion, the following principle broadly emerges : a case under section 138 of the Act, which requires to be tried in a summary way as contemplated under section 143 of the Act, is in fact, was tried as regular summons case it would not come within the purview of section 326(3) of the Code. In other words, if the case in substance was not tried in a summary way, though was triable summarily, and was tried as regular summons case, it need not be heard de novo and the succeeding Magistrate can follow the procedure contemplated under section 326(1) of the Code. However, where a case is tried in a summary way by following the procedure contemplated by the provisions of Chapter XXI of the Code and in particular sections 263 and 264 therein, alone is intended to be excluded from the purview of section 326(1) of the Code." (8) Provision of sub-section (3) of section 326 of Cr.P.C. rules out the applicability of sub-sections (1) and (2) of section 326 to summary trial. So far as the instant case is concerned, as has been recorded above, the trial is not conducted in the manner as provided under sections 262 to 264 of the Code. Thus, prohibition contained in sub-section (3) of section 326 shall have no applicability to the facts and circumstances of the case. So far as the instant case is concerned, as has been recorded above, the trial is not conducted in the manner as provided under sections 262 to 264 of the Code. Thus, prohibition contained in sub-section (3) of section 326 shall have no applicability to the facts and circumstances of the case. The trial Magistrate, while passing the impugned order has recorded that the case has been tried as summons case and the predecessor Judge has already recorded the evidence of the witness and the matter was posted for judgment. The learned trial Judge ruled out the desirability of recording of evidence afresh or reverting the matter back to the previous stage. It is also evident on perusal of the record of the case that the evidence of the complainant was recorded on 12/01/2009 and 10/02/2009. The statement of the accused under Section 313, Cr.P.C. has been recorded on 14/8/2009 and the written statement has also been placed on record by the accused. The accused has placed on record the 'evidence close' pursis on 19/8/2009 which is at Exh.51. The only stage remains in the matter is that of hearing of argument and to deliver the judgment. The learned trial Magistrate is thus, justified in turning down the request made by the complainant for rendering the matter to the earlier stage of recording of evidence. At this stage of the proceedings, in exercise of powers conferred upon this Court under Section 482 of the Code of Criminal Procedure, no interference is called for. The application is, therefore, rejected. Application rejected.