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2012 DIGILAW 911 (BOM)

Indo Rama Synthetics v. HRK Infra & Oils

2012-05-02

M.L.TAHALIYANI

body2012
Judgment : Heard. 2. ADMIT. 3. Heard Mr. Shyam Dewani, learned counsel for the applicant and Mr. J.B. Jaiswal, learned Additional Public Prosecutor for respondent No.5. Respondent No.1 is a partnership firm. Respondent Nos.2, 3 and 4 are the partners of the said firm. Though they are served they have chosen to remain absent. It is appears that they also support the prayer of the applicant in view of their stand before the learned trial Court. 4. The applicant M/s. Indo Rama Synthetics (I) Ltd. is the original complainant in the criminal complaint pending before Judicial Magistrate First Class, Nagpur. The applicant is aggrieved by the orders passed by the learned Magistrate on the application filed by the applicant in Summary Criminal Case No.922 of 2010. The evidence of the complainant i.e. representative of the applicant had been recorded in the trial Court. It appears from the impugned order that Judge Shri M.T. Thaware has taken charge of the Court of 24th Jt. C.J.J.D. and Judicial Magistrate First Class (Special Court for 138 of N.I.Act) after major portion of the evidence of the complainant had been recorded. It appears that prayer was made before the learned Judge to continue with the trial in the Criminal Case No.922 of 2010 from the stage where it was left by his learned predecessor. At this stage, it is stated by Mr. Dewani, learned counsel for the applicant, that some part of the evidence was recorded by the learned Magistrate Shri Thaware also. However, recording of evidence of P.W. 1 is not still over. During the period of recording of the evidence of P.W. 1 the Magistrate took a decision that there should be a de novo trial in view of the judgment of the Hon'ble Supreme Court in the matter of Nitinbhai Saevatilal Shah Vs. Manubhai Manjibhai Panchal, reported at AIR 2011 SC 3076 . It appears from the order that the learned Magistrate was of the view that since the case was tried summarily, in view of the judgment of the Hon'ble Supreme Court in the matter of Nitinbhai (supra) he could proceed further with the case from the stage it was left by his predecessor. He, therefore, directed de novo trial. 5. The learned Advocate Mr. He, therefore, directed de novo trial. 5. The learned Advocate Mr. Dewani has submitted that the law laid down by the Supreme Court in the matter of Nitinbhai (supra) is not applicable to the case in hand. It is further submitted by Mr. Dewani that the case was not tried as summary case. There was recording of full-fledged evidence. It was brought to my notice that the Hon'ble Supreme Court has observed in the judgment cited supra in paragraphs 13 & 14 as under : "13. The manner in which record in summary trials is to be maintained is provided in Section 263 of the Code. Section 264 mentions that in every case tried summarily in which the accused does not plead guilty, the Magistrate shall record the substance of evidence and a judgment containing a brief statement of the reasons for the finding. Thus the Magistrate is not expected to record full evidence which he would have been, otherwise required to record in a regular trial and his judgment should also contain a brief statement of the reasons for the finding and not elaborate reasons which otherwise he would have been required to record in regular trials." "14. The mandatory language in which Section 326(3) is couched, leaves no manner of doubt that when a case is tried as a summary case a Magistrate, who succeeds the Magistrate who had recorded the part or whole of the evidence, cannot act on the evidence so recorded by his predecessor. In summary proceedings, the successor Judge or Magistrate has no authority to proceed with the trial from a stage at which his predecessor has left it. The reason why the provisions of sub-sections (1) and (2) of Section 326 of the Code have not been made applicable to summary trials is that in summary trials only substance of evidence has to be recorded. The Court does not record the entire statement of witness. Therefore, the Judge or the Magistrate who has recorded such substance of evidence is in a position to appreciate the evidence led before him and the successor Judge or Magistrate cannot appreciate the evidence only on the basis of evidence recorded by his predecessor. The Court does not record the entire statement of witness. Therefore, the Judge or the Magistrate who has recorded such substance of evidence is in a position to appreciate the evidence led before him and the successor Judge or Magistrate cannot appreciate the evidence only on the basis of evidence recorded by his predecessor. Section 326(3) of the Code does not permit the Magistrate to act upon the substance of the evidence recorded by his predecessor, the obvious reason being that if succeeding Judge is permitted to rely upon the substance of the evidence recorded by his predecessor, there will be a serious prejudice to the accused and indeed, it would be difficult for a succeeding Magistrate himself to decide the matter effectively and to do substantial justice." 6. The procedure for recording evidence in summons cases is different than the procedure adopted for recording evidence in summary trials. Section 263 of the Code of Criminal Procedure is applicable to summary trials which describes as to how the record of summary trial is to be maintained. Section 263 of the Code of Criminal Procedure runs as under : "263. Record in summary trials. -In every case tried summarily, the Magistrate shall enter, in such form as the State Government may direct, the following particulars, namely - (a) the serial number of the case; (b) the date of the commission of the offence; (c) the date of the report or complaint; (d) the name of the complainant(if any); (e) the name, parentage and residence of the accused; (f) the offence complained of and the offence (if any) proved, and in cases coming under clause (ii), clause (iii) or clause (iv) of sub-section (1) of section 260, the value of the property in respect of which the offence has been committed; (g) the plea of the accused and his examination (if any); (h) the finding ; (i) the sentence or other final order ; (j) the date on which proceedings terminated." Provisions of Section 264 are also equally relevant and important for deciding the issue raised by Mr. Dewani in the present case. Section 264 of the Code of Criminal Procedure runs as under : "264. Dewani in the present case. Section 264 of the Code of Criminal Procedure runs as under : "264. Judgment in cases tried summarily -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." It is clear from the provisions of Section 264 that every summary case in which the accused does not plead guilty the Magistrate has to record substance of evidence and the judgment containing the brief statement of reasons for the finding. 7. Chapter XX deals with the trial of summons cases by the Magistrate. Section 254 of the Code of Criminal Procedure describes the procedure to be adopted when the accused is not convicted on his own plea of guilty. Section 254 of the Code of Criminal Procedure runs as under : "254. Procedure when not convicted. (1) If the Magistrate does not convict the accused under section 252 or section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence. (2) The Magistrate may, if he thinks fit, on the application of the prosecution or the accused, issue a summons to any witness directing him to attend or to produce any document or other thing. (3) The Magistrate may, before summoning any witness on such application, require that the reasonable expenses of the witness incurred in attending for the purposes of the trial be deposited in Court." 8. Comparison of Sections 263 and 254 of the Code of Criminal Procedure would clearly indicate that while hearing the case summarily the Magistrate is suppose to record notes of evidence, while hearing the case as summons case the Magistrate has to hear the prosecution and take all such evidence as may be produced in support of the prosecution and also to hear the case and take all such evidence as he produces in his defence. The reason for de novo trial can be found in the judgment of the Hon'ble Supreme Court, cited supra. It will not be out of place to reproduce certain portion of paragraph 14 of the said judgment, which reads as under : ".... The reason for de novo trial can be found in the judgment of the Hon'ble Supreme Court, cited supra. It will not be out of place to reproduce certain portion of paragraph 14 of the said judgment, which reads as under : ".... the obvious reason being that if succeeding Judge is permitted to rely upon the substance of the evidence recorded by his predecessor, there will be a serious prejudice to the accused and indeed, it would be difficult for a succeeding Magistrate himself to decide the matter effectively and to do substantial justice." It is thus, clear that even recording of evidence is not full-fledged and is in the condensed form (notes of evidence), the succeeding Magistrate would not follow the real meaning of the notes and there is always a chance of miscarriage of justice. Similar interpretation has been adopted by this Court (Coram : Ranjit More, J) in Writ Petition No.3745 of 2011. 9. As such, while applying the ratio of the judgment of the Hon'ble Supreme Court in Nitinbhai (supra) what the successor in office is required to examine is whether the evidence recorded by his predecessor was simply in the notes form or was recorded as per procedure applicable to the summons case. If only notes of evidence are recorded adopting the procedure for summary cases, the successor in office will have to record the evidence afresh. It is noted that in most of the cases labelled as 'summary cases' the evidence is recorded by adopting the procedure applicable to the 'summons cases'. There could hardly be a case under Section 138 of the Negotiable Instruments Act where the Magistrate has strictly adopted procedure applicable to summary cases. It is observed that in almost all the cases, the evidence is recorded in detail and in some cases the cross-examination goes on for days together. Therefore, the successor in office is not supposed to go by the label applied to the case. He is under obligation to examine the record and proceedings and see that if the evidence is recorded by adopting the procedure applicable to summons cases there is no repetition of recording of evidence so that the valuable time of the Court is saved. 10. In the present case, evidence has been recorded in detail. The examination-in-chief of P.W.1 runs into 16 pages. 10. In the present case, evidence has been recorded in detail. The examination-in-chief of P.W.1 runs into 16 pages. I am told that the cross-examination is also done in the similar manner. The examination-in-chief is not only in detail but it takes care of all the documents produced by the complainant in support of his case and exhibit numbers are also given to the documents. Apart from what has been stated by me herein above, it is to be noted here that the application filed by the complainant for adopting the evidence recorded by the predecessor of the present Magistrate also states that the evidence has been recorded in full-fledged manner and no short-cut was applied. The representative of the Non-applicant HRK Infra / accused has also given no objection for reading the said evidence. 11. Considering the fact that the evidence is not recorded in the form of notes of evidence, no prejudice will be caused to either of the parties, if the same evidence is adopted. Moreover, the representative of the respondent/accused has also given no objection before the learned trial Court for adopting the same evidence. 12. The application is allowed. The impugned order passed by the learned Magistrate dated 08.12.2011 below Exh.120, directing de novo trial is set aside. It is directed that the trial shall continue from the stage of further cross-examination of P.W. 1. The application stands disposed of accordingly.