JUDGMENT : JOYMALYA BAGCHI, J. 1. The impugned order dated 16th April, 2013 passed by the learned Metropolitan Magistrate, 17th Court, Calcutta in case no. C/5793 of 2001 u/s 138 of the Negotiable Instrument Act (hereinafter referred to as "the Act") is challenged before me. Learned lawyer appearing for the petitioner is aggrieved by the impugned order whereby the learned Magistrate has directed the complainant to file fresh evidence in terms of Section 326(3) of the Criminal Procedure Code. She submits that the spirit of the Act is to ensure speedy conclusion of trial which is being defeated by the impugned order. She also submits that no worthwhile purpose would be served by filing fresh affidavit in the light of the fact that evidence of the complainant in proceeding u/s 138 of the Negotiable Instrument Act is recorded through affidavit filed u/s 145(1) of the said Act. 2. Learned counsel appearing for the opposite parties submits that the provision of Section 326(3) of the Code of Criminal Procedure is mandatory and cannot be ignored and relies on Nitinbhai Saevatilal Shah and Another Vs. Manubhai Manjibhai Panchal and Another, AIR 2011 SC 3076 and an unreported decision of this Court dated 8th May, 2010 in C.R.R. 41 of 2010. 3. I have considered the submissions of the parties. 4. Undoubtedly, in Nitinbhai Saevatilal Shah and Another Vs. Manubhai Manjibhai Panchal and Another, the apex Court held that Section 326(3) of the Code of Criminal Procedure is mandatory in nature and applies to summary trial and breach of such provisions cannot be condoned even by consent of parties or by the applicability of Sections 461/465 of the Code. 5. In the said decision, the apex Court held as follows: 15. Provision for summary trials is made in chapter XXI of the Code. Section 260 of the Code confers power upon any Chief Judicial Magistrate or any Metropolitan Magistrate or any Magistrate of the First Class specially empowered in this behalf by the High Court to try in a summary way all or any of the offences enumerated therein. Provision for summary trials is made in chapter XXI of the Code. Section 260 of the Code confers power upon any Chief Judicial Magistrate or any Metropolitan Magistrate or any Magistrate of the First Class specially empowered in this behalf by the High Court to try in a summary way all or any of the offences enumerated therein. Section 262 lays down procedure for summary trial and sub Section (1) thereof inter alia prescribes that in summary trials the procedure specified in the Code for the trial of summons case shall be followed subject to condition that no sentence of imprisonment for a term existing three months is passed in case of any conviction under the chapter. 16. The manner in which record in summary trials is to be maintained is provided in Section 263 of the Code. Section 264 mentions that : 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 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. 17. 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-Section (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. The reason why the provisions of sub-Section (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. 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 the 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. .... 20. From the language of Section 326(3) of the Code, it is plain that the provisions of Section 326(1) and 326(2) of the new Code are not applicable to summary trial. Therefore, except in regard to those cases which fall within the ambit of Section 326 of the Code, the Magistrate cannot proceed with the trial placing reliance on the evidence recorded by his predecessor. He has got to try the case de novo. In this view of the matter, the High Court should have ordered de novo trial. 6. However, in the said judgment the apex Court did not have the occasion of dealing with the provisions of Section 145 of the Negotiable Instruments Act which had not been enacted when the evidence was recorded in the cited case. 7. Negotiable Instruments Act, 1981 was amended by Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002, which came into force on 06.02.2003. By the said Amending Act substantive punishment in respect of offence u/s 138 of the Negotiable Instruments Act, was enhanced from one year to two years. Sections 43 to 47 were incorporated into the Parent Act providing a special procedure for trial of the aforesaid offences. Section 143 of the Act provided that the provisions in Sections 262 to 265 of the Code shall apply as far as may be to the trial of such offence. Sections 43 to 47 were incorporated into the Parent Act providing a special procedure for trial of the aforesaid offences. Section 143 of the Act provided that the provisions in Sections 262 to 265 of the Code shall apply as far as may be to the trial of such offence. In other words, the offence for dishonour of cheque is to be tried summarily. Second proviso of the said section empowered the Magistrate to take a decision not to try an offence summarily bearing in mind the nature of the case or any other reason. Section 145 of the Act enabled the complainant to give his evidence on affidavit which, subject to just exceptions, would be read in evidence in any enquiry, trial or other proceedings under the Code. Sub-section 2 of section 145 empowered the court to examine such deponent of an affidavit at its own motion or at the behest of the parties. Both the aforesaid provisions were prefaced by a non-obstante clause ensuing that they would operate notwithstanding anything contained in the Code of Criminal Procedure. 8. Section 146 provided for a statutory presumption as to the reason of dishonour as stated in the bank's memo. Section 147 relates to the compoundability of such offences. 9. The aforesaid amendments, particularly, Section 145 of the Evidence Act fell for interpretation by the apex Court in the case of Mandvi Co-op. Bank Ltd. Vs. Nimesh B. Thakore, AIR 2010 SC 1402 . In the said decision, the apex Court set out the Statements of Objects and Reasons for introducing such amendment which, inter alia, stated that the proposed amendments were made for earlier disposal of the cases relating to dishonour of cheques. 10. In the aforesaid decision, the apex Court held as follows: 20. It may be noted that the provisions of sections 143, 144, 145 and 147 expressly depart from and override the provisions of the Code of Criminal Procedure, the main body of adjective law for criminal trials. The provisions of section 146 similarly depart from the principles of the Evidence Act. It may be noted that the provisions of sections 143, 144, 145 and 147 expressly depart from and override the provisions of the Code of Criminal Procedure, the main body of adjective law for criminal trials. The provisions of section 146 similarly depart from the principles of the Evidence Act. Section 143 makes it possible for the complaints u/s 138 of the Act to be tried in the summary manner, except, of course, for the relatively small number of cases where the Magistrate feels 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. 21. It is, however, significant that the procedure of summary trials is adopted u/s 143 subject to the qualification "as far as possible", thus, leaving sufficient flexibility so as not to affect the quick flow of the trial process. Even while following the procedure of summary trials, the non-obstante clause and the expression "as far as possible" used in Section 143 coupled with the non-obstante clause in Section 145 allows for the evidence of the complainant to be given on affidavit, that is, in the absence of the accused. This would have been impermissible (even in a summary trial under the Code of Criminal Procedure) in view of Sections 251 and 254 and especially Section 273 of the Code. The accused, however, is fully protected, as under sub-section (2) of Section 145 he has the absolute and unqualified right to have the complainant and any or all of his witnesses summoned for cross-examination. (emphasis supplied) .... 23. Section 145 with its non-obstante clause, as noted above, makes it possible for the evidence of the complainant to be taken in the absence of the accused. But the affidavit of the complainant (or any of his witnesses) may be read in evidence "subject to all just exceptions". In other words, anything inadmissible in evidence, e.g., irrelevant facts or hearsay matters would not be taken in as evidence, even though stated on affidavit. .... 25. But the affidavit of the complainant (or any of his witnesses) may be read in evidence "subject to all just exceptions". In other words, anything inadmissible in evidence, e.g., irrelevant facts or hearsay matters would not be taken in as evidence, even though stated on affidavit. .... 25. It is not difficult to see that Sections 143 to 147 lay down a kind of a special code for the trial of offences under Chapter XVII of the Negotiable Instruments Act and Sections 143 to 147 were inserted in the Act by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 to do away with all the stages and processes in a regular criminal trial that normally cause inordinate delay in its conclusion and to make the trial procedure as expeditious as possible without in any way compromising on the right of the accused for a fair trial. Here we must take notice of the fact that cases u/s 138 of the Act have been coming in such great multitude that even the introduction of such radical measures to make the trial procedure simplified and speedy has been of little help and cases of dishonoured cheques continue to pile up giving rise to an unbearable burden on the criminal court system. (emphasis supplied) 11. Dealing with the import of Section 145(2) of the Act, the apex Court held as follows: 29. Once it is realized that Sections 143 to 147 were designed especially to lay down a much simplified procedure for the trial of dishonoured cheque cases with the sole object that the trial of those cases should follow a course even swifter than a summary trial and once it is seen that even the special procedure failed to effectively and expeditiously handle the vast multitude of cases coming to the court, the claim of the accused that on being summoned u/s 145(2), the complainant or any of his witnesses whose evidence is given on affidavit must be made to depose in examination-in-chief all over again plainly appears to be a demand for meaningless duplication, apparently aimed at delaying the trial. 30. ... It was, therefore, beyond doubt that in the event an application is made by the accused, the court would be obliged to summon the person giving evidence on affidavit in terms of Section 145(1) without having any discretion in the matter. 30. ... It was, therefore, beyond doubt that in the event an application is made by the accused, the court would be obliged to summon the person giving evidence on affidavit in terms of Section 145(1) without having any discretion in the matter. There can be no disagreement with this part of the submission but the question is when the person who has given his evidence on affidavit appears in court, whether it is also open to the accused to insist that before cross-examining him as to the facts stated in the affidavit he must first depose in examination-in-chief and be required to verbally state what is already said in the affidavit. .... 33. We are completely unable to appreciate the submission. The plea for a literal interpretation of Section 145(2) is based on the unfounded assumption that the language of the section clearly says that the person giving his evidence on affidavit, on being summoned at the instance of the accused must start his deposition in court with examination-in-chief. We find nothing in Section 145(2) to suggest that. We may also make it clear that Section 137 of the Evidence Act does not define "examine" to mean and include the three kinds of examination of a witness; it simply defines "examination-in-chief", "cross-examination" and "re-examination". What Section 145(2) of the Act says is simply this. The court may, at its discretion, call a person giving his evidence on affidavit and examine him as to the facts contained therein. But if an application is made either by the prosecution or by the accused the court must call the person giving his evidence on affidavit, again to be examined as to the facts contained therein. What would be the extent and nature of examination in each case is a different matter and that has to be reasonably construed in the light of the provision of Section 145(1) and having regard to the object and purpose of the entire scheme of Sections 143 to 146. The scheme of Sections 143 to 146 does not in any way affect the judge's powers u/s 165 of the Evidence Act. 34. As a matter of fact, Section 145(2) expressly provides that the court may, if it thinks fit, summon and examine any person giving evidence on affidavit. The scheme of Sections 143 to 146 does not in any way affect the judge's powers u/s 165 of the Evidence Act. 34. As a matter of fact, Section 145(2) expressly provides that the court may, if it thinks fit, summon and examine any person giving evidence on affidavit. But how would the person giving evidence on affidavit be examined, on being summoned to appear before the court on the application made by the prosecution or the accused? The affidavit of the person so summoned that is already on the record is obviously in the nature of examination-in-chief. Hence, on being summoned on the application made by the accused the deponent of the affidavit (the complainant or any of his witnesses) can only be subjected to cross-examination as to the facts stated in the affidavit." .... "41. Mr. Ranjit Kumar lastly submitted that when the complainant gives his evidence on affidavit, then the documents produced along with the affidavit(s) are not proved automatically and unless the accused admits those documents u/s 294 of the Code of Criminal Procedure, the documents must be proved by oral testimony. We find no substance in this submission either and we see no reason why the affidavits should not also contain the formal proof of the enclosed documents. In case, however, the accused raises any objections with regard to the validity or sufficiency of the proof of the documents submitted along with the affidavit and if the objections are sustained by the court, it is always open to the prosecution to have the witness concerned summoned and get the lacuna in the proof of the documents corrected. 12. It is, therefore, clear that the special procedure laid down under Sections 143 to 147 of the Negotiable Instruments Act will override the provisions of the Code. Sections 262 to 265 of the Code shall guide the procedure of the trial of offences under the Act as far as possible. The existence of the non-obstante clause in Section 145 of the Act clearly mandate that the said provisions enabling the complainant to file affidavit evidence will override other provisions of the Code, including Section 264 of the Code to the extent it is inconsistent with the said provision of law. The existence of the non-obstante clause in Section 145 of the Act clearly mandate that the said provisions enabling the complainant to file affidavit evidence will override other provisions of the Code, including Section 264 of the Code to the extent it is inconsistent with the said provision of law. Or in other words, the affidavit filed by the complainant, disclosing the facts therein and enclosing relevant documents shall be read into evidence in the course of summary trial of such cases independent of substance of evidence as recorded u/s 264 of the Code of Criminal Procedure. 13. The question, therefore, arises is what would be the impact of Section 326(3) of the Code on such affidavit of the complainant which has been read into evidence in the trial by operation of Section 145(1) of the Act. 14. As observed earlier, in Nitinbhai Saevatilal Shah & Anr. (supra), the apex Court was not dealing with a case where affidavit of the complainant had been read into evidence in terms of Section 145(1) of the Act. 15. In the cited case, evidence had been recorded in terms of Section 264 of Code of Criminal Procedure prior to enforcement of the Amending Act on 04.02.2003. In fact, the evidence had already been recorded by 03.08.2001, when the joint application was made before the successor magistrate praying that the evidence recorded by his predecessor-in-office be taken into account. 16. Therefore, the impact of Section 326(3) on affidavit evidence filed by the complainant in terms of Section 145 of the Negotiable Instruments Act did not fall for decision in the said case. It is settled law that a judgment is not an authority in respect of a point which has not been raised or argued. 17. It is, therefore, clear that in Nitinbhai Saevatilal Shah & Anr. (supra) the apex Court was dealing with a case where substance of evidence had been recorded u/s 264 of Code of Criminal Procedure under the pre-amended law. On the other hand, in the present case, the affidavit has been filed by the complainant in terms of Section 145 of the amended Act which has been read into evidence in the course of trial. 18. As discussed above, the factual matrix in the decision of the apex Court in Nitinbhai Saevatilal Shah & Anr. Vs. Manubhai Manjibhai Panchal & Anr. 18. As discussed above, the factual matrix in the decision of the apex Court in Nitinbhai Saevatilal Shah & Anr. Vs. Manubhai Manjibhai Panchal & Anr. (supra) is different from the one in the present case. Affidavit of the complainant u/s 145(1) of the Act was read into evidence in the instant case after the Amending Act came into force whereas the entire evidence in substance form was recorded u/s 264 of the Code in Nitinbhai Saevatilal Shah & Anr. (supra). 19. In Union of India (UOI) and Another Vs. Major Bahadur Singh, (2006) 1 SCC 368 the apex Court held as follows : 9. The Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. V. Horton ( 1951 AC 737 at p.761) Lord Mac Dermot observed: The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge.... 10. In Home Office v. Dorset Yacht Co., 1970 (2) All ER 294 Lord Reid said: Lord Atkin's speech....is not to be treated as if it were a statutory definition. It will require qualification in new circumstances. Megarry, J. in Shepherd Home Ltd. Vs. Sandham (No. 2) (1971) 1 WLR 1062 observed: One must not, of course, construe even a reserved judgment of Russell L.J. as if it were an Act of Parliament. It will require qualification in new circumstances. Megarry, J. in Shepherd Home Ltd. Vs. Sandham (No. 2) (1971) 1 WLR 1062 observed: One must not, of course, construe even a reserved judgment of Russell L.J. as if it were an Act of Parliament. And, in Herrington v. British Railways Board ( 1972 (2) WLR 537 ) Lord Morris said: There is always peril in treating the words of a speech or a judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case. 11. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. 20. Similar view was reiterated in Megh Singh Vs. State of Punjab, AIR 2003 SC 3184 in the following words :- 18. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases or between two accused in the same case. Each case depends on its own facts and a close similarity between one case and another is not enough because a single significant detail may alter the entire aspect. It is more pronounced in criminal cases where the backbone of adjudication is fact based. 21. Hence, the difference in the factual matrix of this case, as indicated hereinabove, must be borne in mind while considering the ratio laid down in Nitinbhai Saevatilal Shah & Anr. (supra) 22. Section 326 of Cr.P.C. applies to evidence which is "heard and recorded" by the Court. Affidavit of the complainant which is read into evidence in the trial of offence u/s 138 of the Negotiable Instruments Act in terms of the legal fiction created by section 145(1) of the Act does not constitute a species of evidence which is "heard and recorded" by Magistrate. 23. Neither does it constitute such evidence, the substance whereof is recorded by the Magistrate in terms of Section 264 Cr.P.C., 1973 of such affidavit is treated as evidence by operation of the legal fiction created by the special statute and the same overrides the provisions of the Code due to the non-obstante clause. 23. Neither does it constitute such evidence, the substance whereof is recorded by the Magistrate in terms of Section 264 Cr.P.C., 1973 of such affidavit is treated as evidence by operation of the legal fiction created by the special statute and the same overrides the provisions of the Code due to the non-obstante clause. Hence, Section 326 Cr.P.C. would have no manner of application to such affidavit which is deemed to be evidence under the special statute and sub-section (3) thereof shall not result in obliteration/expunging of such affidavit on change of judicial personnel. 24. On the other hand, it must be borne in mind that Section 145 of the Act was enacted to lay down a special procedure to ensure a speedy completion of trial in cases of dishonour of cheques. In fact, in Mandvi Cooperative Bank Limited (supra) the apex Court highlighted such legislative intent and held that such affidavit shall constitute "examination-in-chief" of the complainant and the latter need not be summoned u/s 145(2) merely to prove the affidavit and the documents enclosed therein. 25. Taking judicial notice of the fact of frequent transfer of judicial officers due to administrative exigencies and bearing in mind the aforesaid legislative intent of ensuring speedy trial, would it enure to a furtherance of such intention to hold that the affidavit of the complainant which was already a part of the record would stand obliterated by operation of Section 326(3) Cr.P.C. ? It must be borne in mind that such affidavit is not evidence which was "heard and recorded" by the predecessor Magistrate in substance form u/s 264 Cr.P.C. but is deemed to read into evidence by the legal fiction created in Section 145(1) of the Act. 26. Such legal fiction empowers the Court to read the affidavit of a complainant in any enquiry, trial or proceeding under the Code, notwithstanding anything contained in the said Code. 27. Hence, in furtherance of the legislative intent of the Amending Act and to create a simple and speedy procedure for trial, the expression "any enquiry, trial or other proceeding under the said Code" in Section 145(1) of the Act must be given a liberal construction to include a re-trial under the provisions of Section 326(3) Cr.P.C. when necessitated by a change of judicial personnel. 28. 28. I am, therefore, of the considered view that such legal fiction in Section 145(1) of the Act be interpreted to permit the Court to read the affidavit of the complainant, which was already on record, as evidence in the course of retrial of the case u/s 326(3) of the Code, if the complainant so desires. 29. No prejudice would be suffered by the accused on such score as the affidavit evidence is not one which was 'heard and recorded by the predecessor-in-office' in terms of Section 264 of the Code wherein only substance of the evidence is recorded. 30. Any other interpretation would defeat the very purpose of the Amending Act and will entail meaningless duplication in the form of re-submission of the self-same affidavit of the complainant (which was already on record) in the course of re-trial held in terms of Section 326(3). 31. Needless to mention that any oral evidence recorded u/s 145(2) of the Act or otherwise in the form as laid down in Section 264 Cr.P.C. shall naturally stand obliterated and has to be recorded afresh before the successor Magistrate in course of re-trial of the case. 32. In the unreported decision of this Court cited by the opposite party, the aforesaid question of law was neither raised nor argued. It is settled law that a judgment is not an authority of the proposition which is neither raised nor argued. [see : Mittal Engineering Works (P) Ltd. Vs. Collector of Central Excise, Meerut, (1997) 1 SCC 203 ] 33. The learned Magistrate is directed to proceed with the re-trial in the light of the aforesaid directions as expeditiously as possible and conclude the same preferably within two months from the date of communication of this order. 34. The petitioner is at liberty to pray before the learned Magistrate in accordance with law to try the instant case in accordance with procedure of the Code otherwise than a summary case, if so advised. The revisional application is accordingly disposed of.