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2013 DIGILAW 91 (PNJ)

Deepak Kumar v. Golden Cooperative NATC Society

2013-01-30

MAHESH GROVER

body2013
JUDGMENT MAHESH GROVER, J. This revision petition is directed against the judgment dated 11.4.2012 of the learned Additional Sessions Judge, Hissar. Vide judgment dated 9.9.2010 passed by the learned J.M.I.C., Hissar, Deepak Kumar, the present petitioner was acquitted of the charges in a complaint under Section 138 of the Negotiable Instruments Act. The complainant preferred an appeal which was accepted by the learned Additional Sessions Judge vide the impugned judgment dated 11.4.2012 and while doing so, it remanded the case back to the successor Court for disposal in accordance with law keeping in view the provisions of Section 326(3) Cr.P.C. To persuade itself to come to this conclusion, it had placed reliance upon a judgment of the Hon'ble Supreme Court in Nitinbhai Saevatilal Shah and another v. Manubhai Manjibhai Panchal and another (2011) 9 S.C.C. 638 wherein it was observed by the Hon'ble Supreme Court that awarding a conviction on the basis of evidence recorded by the predecessor in a summary trial was not a curable irregularity, but reflected on the want of competence in terms of Section 326(3) Cr.P.C. and therefore, deemed it appropriate to remand the matter back to the trial Court for re-trial. The grievance raised by the petitioner in this petition is that the impugned order is unsustainable in view of the fact that the procedure pursuant to the complaint under Section 138 of the Negotiable Instruments Act was not dealt with in accordance with the procedure prescribed for in summary trial, but was treated as a summons case and the entire evidence recorded in the manner prescribed and therefore, the facts of the case would distinguish the case upon which reliance was placed by the learned Additional Sessions Judge in the impugned order. The Hon'ble Supreme Court in Nitinbhai Saevatilal Shah and another v. Manubhai Manjibhai Panchal and another (supra) has observed in para-17 of the judgment as follows :- 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. 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 subsections (1) and (2) of Section 326 of the Code have not been made applicable to summary trials is that in summary trials only the substance of evidence has to be recorded. The Court does not record the entire statement of witnesses. 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.” Section 326(3) of the Code of Criminal Procedure is extracted here below :- “(326) Conviction or commitment on evidence partly recorded by one Magistrate and partly by another.- (1) ... ... ... (2) ... ... ... (3) Nothing in this section applies to summary trials or to cases in which proceedings have been stayed under section 322 or in which proceedings have been submitted to a superior Magistrate under section 325.” If the facts of the case are to be seen, then the entire evidence was recorded in a procedure which is warranted in a summons case and therefore, the observations made by the Hon'ble Supreme Court in the aforesaid judgment would not be attracted to the facts of the instant case. The petitioner has placed on record the entire evidence recorded during the course of proceedings which indicates that the contention that he has raised before this Court regarding the recording of evidence pursuant to a summons case is not misplaced. The complainant in this case was a Cooperative Society which pleaded that an amount of Rs.88,500/- had been advanced as loan to the petitioner, but it failed to produce any evidence in this regard. No documentary evidence was ever produced by them. The complainant in this case was a Cooperative Society which pleaded that an amount of Rs.88,500/- had been advanced as loan to the petitioner, but it failed to produce any evidence in this regard. No documentary evidence was ever produced by them. As against this, the petitioner was able to prove that no loan was advanced as it failed to comply with the requirements of producing government employees as warranted. Be that as it may, the solitary point that has been raised before this Court in the instant revision is as to whether the impugned order is sustainable in view of the fact that Section 326(3) Cr.P.C. was applied to a case where the procedure had been followed in a summons case. Evidently, the answer is in the negative as the Hon'ble Supreme Court had referred to a case where the procedure adopted was of a summary nature. For the aforesaid reasons, the revision petition is accepted and the impugned order is set aside.