JUDGMENT : 1. Heard learned Advocates appearing for the respective parties. 2. By way of this application, the applicant – the original complainant has challenged the legality and validity of the order dated 15.06.2023 below Exhibit 11 passed by the learned Sessions Judge, Sabarkantha at Himmatnagar in Criminal Revision Application No.6 of 2023 allowing the Revision Application and setting aside the order dated 13.01.2023 passed by learned 2nd Judicial Magistrate First Class, Himmatnagar below Exhibit 51 in Criminal Case No.5067 of 2018, whereby the application of the applicant for a de novo trial was allowed. 3. The criminal complaint against the present respondents No.2 and 3 was under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to in short as ‘the N.I. Act’). It is the case of the applicant that he and the respondent No.2 had started a Partnership Firm in the name and style of “Design Community” on 20.11.2012 by executing a notarized Partnership Deed. The business got permanently closed on 12.06.2015, thereafter the accounts were settled and the formal deed for dissolution of the firm was executed on 13.06.2017. Thereafter, the applicant joined service as a Project Manager in the firm Keyur Shahh and Associates, owned by respondent No.2. The salary of the applicant was decided as Rs.50,000/- per month plus T.A. and D.A.. According to the applicant, the respondent No.2 had not paid aggregate salary to the tune of Rs.12,00,000/- for 2 years for the services rendered and he had asked for the due of the outstanding salary. The respondent No.2 had accepted the liability and had given a cheque bearing No.000084 of Bank of Baroda for Rs.4,00,000/- dated 02.11.2018. 4. Before the learned 2nd Additional Judicial Magistrate First Class, Himmatnagar in Criminal Case No.5067 of 2018 by filing Exhibit 51 a prayer for de novo trial was made relying upon the decision of this High Court in the case of Ramjibhai Haribhai Chaudhary v. State of Gujarat. Against that, the decision in the case of J.V. Bahurani v. State of Gujarat was produced where the learned Magistrate after observing the judgment has noted that the matter came be to remanded placing reliance on the decision of the Hon’ble Apex Court in the case of Nitin Sevantilal Shah v. Manu M. Panchal reported in (2011) 9 SCC 638 . The learned Magistrate had ordered for a de novo trial relying upon the case of Nitin Sevantilal Shah (supra). 5. Aggrieved by the said order, the challenge was made by the accused before the learned Sessions Court, Sabarkantha at Himmatnagar, the Criminal Revision Application came to be allowed and the order of de novo trial was set aside. The learned Sessions Judge observed that a complaint has been filed against the accused under Section 138 of the N.I. Act, and it was observed that the matter was at the start of cross examination of the original complainant before the learned trial Court. The cross examination was not concluded. The learned Sessions Judge noted that under Section 148 of the N.I. Act, the matter has to be proceeded as summary trial for the case filed under Section 138 of the N.I. Act and order could be passed after hearing the parties. It has been observed that the predecessor learned Trial Court Judge has not passed any such order that the matter was to be tried as summary trial, the learned trial Court further observed that the complaint had not produced the original documents Affidavit or evidence before the learned trial Court, whereas on service of summons, the original accused appeared before the learned trial Court, the original complainant gave his chief-examination by way of Affidavit and the original accused had taken the cross examination. It was further noted that as merely the evidence was recorded before the predecessor of the learned trial Judge, the learned Court expressed its inability, to proceed further and decide the matter, which cannot be ground to proceed the trial de novo. 6. The learned Sessions Judge has referred to the decision of this Court in the case of Yogeshwar Oil Industries v. POL World Pvt. Ltd. and Others reported in 2014 (1) SCC 623 to note that when the trial of the case is proceeding as a summary case, mere non- recording of reasons for conducting trial as summons case and not as a summary case would not entitle the accused to seek de novo trial. A reference was also made to the case of Mehsana Nagrik Sahkari Bank Ltd. v. Shreeji Cab Co. A reference was also made to the case of Mehsana Nagrik Sahkari Bank Ltd. v. Shreeji Cab Co. in Criminal Appeal Nos.968- 971 of 2013, where the Hon’ble Apex Court after perusal of the notes of evidence produced on record, observed that the evidence was recorded in full and not in a summary manner and hence, considering the facts and circumstances of the case, set aside the order passed by the High Court and directed the learned Additional Chief Judicial Magistrate, Mehsana to proceed from the stage where the case was pending. 7. The learned Sessions Judge noted that the applicant – original accused has produced the deposition of the opponent, i.e. the complainant vide Mark 10/1, on examining the deposition, the learned Sessions Judge, noted that the opponent, i.e. the original complainant has given chief examination by way of an Affidavit and was cross examined from the side of the accused which the learned Sessions Judge noted that the evidence of the complainant was produced at length just because evidence was recorded by the learned predecessor, the learned predecessor has expressed his inability to proceed further, that itself cannot be a made a ground for de novo trial as laid down in the case of Yogeshwar Oil Industries (supra). This High Court has observed that details, proceedings and procedure was deposed by the accused, which was not recorded by the learned trial Court and the learned trial Court has recorded that the case has not been conducted as a summary case at all and that there were all the efforts on part of the accused in prolonging the case. 8. The Appellate Court in the impugned order was of the view which has been expressed in Paragraph 12 in following terms :- “12. Before this Court, learned advocate for the applicant – original has produced deposition of the opponent – original complainant vide mark 10/1. Considering the deposition, opponent – original complainant has given chief-examination by way of affidavit and learned advocate for the applicant – original accused has taken cross- examination. In this way, evidence from the opponent-original complainant was produced at length. Considering the deposition, opponent – original complainant has given chief-examination by way of affidavit and learned advocate for the applicant – original accused has taken cross- examination. In this way, evidence from the opponent-original complainant was produced at length. Also, merely the evidence was recorded before the predecessor of the learned trial Judge and the learned trial Court has expressed its inability to proceed further and decide the matter, cannot be a ground to proceed the trial de novo and would entitle the original complainant for the same as per the judgment of Yogeshwar Oil Industries (supra). Moreover, the original complainant had sought for adjournments and was not remaining present before the learned trial Court when the matter was on the stage of cross-examination of the complainant and a transfer application to try two cases in Court was also pending vide CMA No.422/2021, which facts are suppressed by the original complainant. This can be said nothing but the effort to delay the matter, which facts are not considered by the learned trial Court. Perusal of the impugned order also revealed that the provisions of Sections 145 and 326 of the Code have been misinterpreted by the learned trial Court and considering these aspects, this Court is of the view that the order passed by the learned Magistrate is erroneous and illegal and requires to be interfered with and hence, I answer point no.1 in the affirmative and in the interest of justice, answer point No.2 accordingly as follows: ORDER : The present Criminal Revision Application is hereby allowed. The order passed by the learned 2nd Judicial Magistrate First Class, Himmatnagar below Exhibit 51 in Criminal Case No.5067/2018 dated 13/01/2023 praying for de novo trial, is hereby set aside.” 9. In Yogeshwar Oil Industries (supra), it has been clearly noted that the requirement of recording reasons for passing formal order would vitiate otherwise proper trial and it would be a travesty of justice, which would be taken advantage of by unscrupulous litigation to prolong the trial. Here in this case, the learned Magistrate noted that the evidence was produced by way of examination in chief. There was no substantial reason noted by the trial Court to order de novo trial. Here in this case, the learned Magistrate noted that the evidence was produced by way of examination in chief. There was no substantial reason noted by the trial Court to order de novo trial. The only observation was that since the evidence was recorded in the form of Affidavit Exhibit 20 which is after recording of the plea, therefore, the learned Judge had considered that he would have to go for a de novo trial for recording of the evidence before him. As observed in Yogeshwar Oil Industries (supra), the issue of de novo trial is now no more res integra as it was observed by the Division Bench in the case of Babubhai Jinabhai Gajjar v. State of Gujarat in Special Criminal Application No.898 of 2013, decided on 15.07.2013 where de novo trial is ordered where the recording of the evidence was in the form of a summary trial and the change of the Presiding Officer, who has not recorded the evidence in summary fashion was to decide the matter. But in a case the recording of evidence is in a form of summons case, meaning thereby, in case, at length, procedure of summons trial is followed and recorded by the Magistrate/Presiding Officer then in that case, the Court need not order de-novo trial. As observed by the learned Sessions Judge and as could be noted from the order of the learned trial Court, the Affidavits of evidence was produced at Exhibit 20, and thus, there was no need for de novo trial as there was no recording of evidence in a summary manner. Hence, the present Criminal Revision Application is devoid of merits and stands rejected. 10. In the result, the order dated 15.06.2023 below Exhibit 11 passed by the learned Sessions Judge, Sabarkantha at Himmatnagar in Criminal Revision Application No.6 of 2023 is upheld and stands confirmed.