Judgment :- S.S. Satheesachandran, J. 1. Common petitioner is the complainant in two cheque cases, wherein the accused are different. Those accused are the respective party respondent in the above two petitions. In both complaint cases evidence on both sides is over. Presiding officer of the court was then transferred, and another officer, present incumbent, took charge. Complainant thereupon moved separate application in both cases for de novo trial. Those applications were filed under Section 311 of the Code of Criminal Procedure, for short, 'the Code' stating that the Apex Court in 'Nitinbhai Saevatilal Shah and Another V. Manubhai Manjibhai Panchal and Another' (AIR 2011 SC 3076) has held that cheque cases are to be tried summarily. In the midst of trial of cheque cases if the officer who recorded the evidence partly or fully is transferred such evidence cannot be acted upon, and the new officer has to commence the trial afresh, otherwise it will vitiate the proceedings, was the case canvassed for de novo trial. Accused in both complaints, opposed the applications filing written objections contending that the decision is not applicable to the cases. Learned Chief Judicial Magistrate thereupon passed the order, similar in both cases, as hereunder. "No objection in continuing the trial. Endorsed. Hence, C.M.P closed." That order passed in the respective case is challenged by the complainant in these two petitions. 2. Learned counsel for the complainant referring to Nitinbhai Saevatilal Shah's case, referred to above, contended that the observations made by the Apex Court spell out that even if the trial proceeds on the consent of parties, and not objected to by the accused, still, that will not empower the court to act upon the evidence recorded by the previous presiding officer, and, therefore, a fresh trial has to be conducted in the two cases. A reported decision rendered by this court in "Balan C. V Preetha N.P and others" (2012 KHC 220) following the decision rendered by the Apex Court referred to above ordering a de novo trial in a cheque case, is also relied by the counsel to contend that a fresh trial has to be proceeded with, and the cases cannot proceed on the evidence already recorded, for their disposal. Per contra, learned counsel appearing for the respective accused in the two cases contended that the accused, both of them, have no objection in continuation of the trial and disposal of the cases relying on the evidence already recorded. According to the learned counsel what has been brought out during the cross examination of the complainant and his witnesses in the two cases is so detrimental to the complainant and, so much so, to eschew the consideration of that evidence and to bring in new materials applications under Section 311 of the Code relying on the aforesaid decision of the Apex Court have been moved by the complainant in the two cases. The accused have endorsed that they have no objection in continuing with the trial on the evidence already recorded. Acceptance of that endorsement by the magistrate to proceed with the trial for disposing them, as reflected in the two orders passed separately in the cases, does not call for any interference, is the further submission of the counsel. 3. The offence under Section 138 of the Negotiable Instruments Act, for short the `Act', arising on dishonour of a cheque has been inserted in the Act with a view to enhance the acceptability of the cheques and to punish the drawer on bouncing of cheques if payment of the sum under the cheque is not paid within the period stipulated after receipt of a statutory notice intimating dishonour and demand for such sum. Chapter XVII of the Act with Sections 138 to 142 was newly inserted by way of the amendment, namely, the Banking and Public Financial Institutions and the Negotiable Instruments Laws (Amendment) Act, 1988 (66 of 1988). The aforesaid provisions inserted by amendment came into effect from 01.04.1989. However, soon it was realized that the punishment provided was inadequate and the procedure prescribed too cumbersome preventing the court from disposing the cases in a time bound manner. A working group was constituted to review Section 138 of the N.I. Act to make recommendations for suggesting such amendments as required for effectively dealing with the mischief sought to be achieved by insertion of the provisions in the N.I. Act. On the basis of the recommendations made by the working group and after consultation with the Reserve Bank of India, and other legal experts, a new bill, namely, Negotiable Instruments Amendment Bill 2001, was introduced. On the basis of the recommendations made by the working group and after consultation with the Reserve Bank of India, and other legal experts, a new bill, namely, Negotiable Instruments Amendment Bill 2001, was introduced. The bill was referred to the standing committee on Finance, which made several recommendations suggesting amendments to various provisions of the Act covered under Chapter XVII. Among other recommendations a provision for summary trial of the case under the Act with a view to speed up disposal of the cases was also recommended. On the basis of the recommendations made and after deliberation the Parliament passed the Negotiable Instruments (Amendment and Miscellaneous Provisions Act 2002), and it received the assent of the President on 17.12.2002. By virtue of that Act various amendments were made to Sections 138, 141 and 142, then, existing in Chapter XVII of the Act, and new provisions were inserted in that Chapter under Sections 143 to 147. Some more amendments were also made in some other sections of the N.I. Act as well. Reference to all amendments brought to Chapter XVII, new provisions added thereto and other sections of the N.I. Act is not called for disposal of these petitions. What has to be looked into and taken note of with reference to the earlier provision governing the procedure for trial of the offence with changes brought in by amendment in the trial, that alone need be considered for the purpose of disposal of these two petitions. 4. The offence under Section 138 of the N.I. Act is punishable with imprisonment extending to a period of two years or with fine for a sum which may extend to twice the amount of the cheque, or with both. When such be the punishment provided as per the provisions of the procedural code the trial of the offence has to proceed as in a summons case. By virtue of the new provision inserted under Section 143 in Chapter XVII of the Act by Amendment Act 2002 the court is empowered to try such cases summarily. Chapter XXI of the Code covering Section 260 to 265 deal with summary trials and what types of offences could be tried so. Section 143 of the N.I. Act empowers a magistrate to try the offence under Section 138 summarily. To consider the question involved it will be profitable to take note of that section. Chapter XXI of the Code covering Section 260 to 265 deal with summary trials and what types of offences could be tried so. Section 143 of the N.I. Act empowers a magistrate to try the offence under Section 138 summarily. To consider the question involved it will be profitable to take note of that section. That Section reads thus : 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 Rupees Five Thousand. Provided further that when at the commencement of, or in the course of, a summary trial under the 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. 5. (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. 5. Whether the aforesaid section commencing with a non-obstante clause mandates trial of the offence under Section 138 of the N.I. Act summarily, or is it only an empowerment of the magistrate to try such offence even summarily, enabling him to do so, is the question to be examined. The marginal heading of the Section states of the empowerment of the court to try the cases summarily. Subsection (1) of that Section mandates that the offences under the Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate. In the trial of the case for such offence it is stated the provisions of Sections 262 to 265, both inclusive, of the Code of Criminal Procedure shall 'as far as may be' applied. Is there any significance for the words 'as far as may be' which is added to while providing for a trial following the provisions of Sections 262 to 265 of the Code? That has to be looked into with reference to the aforesaid sections. Section 262 of the Code governs the procedure for summary trial. Subsection (1) of that section states that the procedure for trial of a summons case has to be followed with the exceptions mentioned in the following sections under Chapter XXI. Under the Code when an offence is tried summarily on conviction the maximum sentence of imprisonment can be only three months. But with respect to the offence under Section 138 of the N.I. Act, even if such offence is tried summarily, the magistrate is competent to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding the limit fixed under Section 29 of the Code. Code contemplates of summary trial in petty offences for which the maximum punishment that can be imposed is only three months. Speedy trial of such petty offences enabling the magistrate to record the substance of the evidence, dispensing with recording of evidence as in a regular trial, is provided for in petty cases. Code contemplates of summary trial in petty offences for which the maximum punishment that can be imposed is only three months. Speedy trial of such petty offences enabling the magistrate to record the substance of the evidence, dispensing with recording of evidence as in a regular trial, is provided for in petty cases. However, subsection(2) of Section 260 of the Code makes it abundantly clear that during the course of such summary trial in a petty case if it appears to the magistrate that it is undesirable to try the case summarily he shall recall the witness already examined and proceed to rehear the case in the manner provided by the Code. So much so, even in a petty case which could be tried summarily the magistrate if it appears that such trial is undesirable, can switch over to other procedure provided by the Code. So much so, even in cases commenced as summary trial the Code empowers to switch over to a different procedure provided. The phraseology 'as far as may be' used in Section 143 makes it abundantly clear that the magistrate is not bound to follow the procedure for summary trial and he has a discretion to follow it or not. Second proviso to sub section (1) of Section 143 of the N.I. Act empowers a magistrate even in a case which has been commenced in a summary manner, to recall any witness already examined or rehear the case in the manner provided by the Code. What is required is only a primary satisfaction of the magistrate that the nature of the case is such that a sentence for punishment for a term of one year may have to be passed, or, for any other reason it is undesirable to try the case summarily. Only requirement on arriving of such satisfaction to switch over to a different procedure provided under the Code from summary trial already proceeded is recording of an order thereof by the magistrate. Only requirement on arriving of such satisfaction to switch over to a different procedure provided under the Code from summary trial already proceeded is recording of an order thereof by the magistrate. The non-obstante clause under sub section (1) of Section 143 of the Act enabling the magistrate to try the offence following the provisions under Sections 262 to 265 of the Code though the punishment for such offence on conviction overrides the interdiction under sub section (2) Section 262 of the Code has necessarily to be examined with reference to the words 'as far as may be' which clearly makes out that there is discretion to the magistrate whether to follow summary trial or to proceed with trial for the offence as in a summons case. The aforesaid words 'as far as may be' makes it clear that it is not mandatory for the magistrate to follow the procedure for summary trial as contemplated under Section 262 to 265 of the Code in the trial of the offence under Section 138 of the N.I. Act. 6. Both sides concede that the two cases were tried following the procedure in a summons case and not by summary trial as under the provisions of Chapter XXI of the Code. When such be the case, continuation of the trial of the case with the evidence recorded by the predecessor magistrate, and disposal of the cases by the successor magistrate will not be in any way vitiated. An offence under Section 138 of the N.I. Act can be tried only summarily, but, not in a different manner provided by the Code is not the purport of Section 143 of the N.I. Act. That Section only empowers the magistrate to try such offence summarily following the procedure applicable to a petty case as far as practicable. The Apex Court in Nitinbhai Saevatilal Shah's Case referred to above has not expressed any view that the offence under Section 138 of the N.I. Act can be tried only summarily. In fact the head note of that decision is misleading with a statement that 'cheque cases are to be tried summarily'. No such expression is found in the discussion made by the Apex Court in paragraph 9 to 16 of that decision. In fact the head note of that decision is misleading with a statement that 'cheque cases are to be tried summarily'. No such expression is found in the discussion made by the Apex Court in paragraph 9 to 16 of that decision. Moreover it is seen that the Apex Court considered and rendered the aforesaid decision in a case for the offence under Section 138 of the N.I. Act which was captioned as a summary case. That is evident from paragraph 6 of the judgment which is indicative that summary trial was followed by the magistrate in that case. The discussion made by the Apex Court in Paragraph 14 of that decision spells out what was considered was a case summarily tried by the magistrate. Punishment provided by the trial court also to some extent indicates that the case was tried by the magistrate summarily. Whatever that be, the Apex Court in the aforesaid reported decision has not laid down any binding principle to be followed that cheque cases involving the offence under Section 138 of the N.I. Act have to be tried only summarily. What could be the effect when an offence is tried summarily was considered in the aforesaid decision with reference to a case involving the offence under Section 138 of the N.I. Act, which had been tried as a summary case. Whether a magistrate can try an offence under Section 138 of the N.I. Act otherwise than by a summary trial, with reference to Section 143 of the Negotiable Instruments Act, was not the issue, nor projected for consideration, before the Apex Court in the aforesaid decision. So much so, the head note given 'cheque cases are to be tried summarily' which is not in any way supported by the discussion of the Apex Court in the decision has to be treated only as a misnomer. Another reported decision rendered by this court, namely, Balan's case, referred to above, following the decision of the Apex Court, relied by counsel for petitioner, was also rendered in a case, as seen from the judgment, where the magistrate had adopted the procedure prescribed for summary trial (paragraph 7). Another reported decision rendered by this court, namely, Balan's case, referred to above, following the decision of the Apex Court, relied by counsel for petitioner, was also rendered in a case, as seen from the judgment, where the magistrate had adopted the procedure prescribed for summary trial (paragraph 7). Where the procedure adopted by the magistrate is one of summary trial then of course the decision rendered by the Apex Court has to be followed; but, in other cases where trial proceeded as in as summons case no reliance can be placed on the aforesaid decision of the Apex Court to seek for a de novo trial on transfer of presiding officer in the midst of trial. 7. In the present cases where both sides concede that the trial was conducted following the procedure governing summons case, de novo trial of such cases is not called for, and the evidence recorded by the predecessor magistrate forming part of the record can be acted upon. However it is open to the successor magistrate, the present incumbent, to re-summon any witness and to have further examination if he is of opinion that such examination is necessary in the interest of justice, as empowered under the proviso to subsection (1) Section 326 of the Code. I make it clear that the endorsement made by the accused to act upon the evidence already recorded is of little merit, and that has no significance in the acceptance of such evidence. 8. De novo trial of the cases was requested by the petitioner/complainant only on the basis of the decision of the Apex Court as if that decision mandates trial of cheque cases summarily. When that is not so, the request for de novo trial is not at all entertainable. Petitions are dismissed with direction to the magistrate to take note of the observations made above and to dispose the two cases expeditiously, in accordance with law.