SHOBHAVATHI Vs. KRISHNOJI RAO

JUDGEMENT

(1.) The petitioner/accused had issued a cheque for a sum of Rs. 50,000/- in favour of the complainant, who is none other her brother-in-law. The cheque was dishonoured. A complaint is filed U/s. 138 of N.I. Act. It is the contention of the complainant that for business purpose loan was borrowed and towards repayment of loan, cheque was issued. The defence contention is to the effect that sister of the accused is the third wife of the complainant. He was pestering his third wife to get money. In that connection, a cheque was issued. In other words, it is the contention that cheque is not supported by any consideration and cheque was issued to prevent cruelty and harassment perpetrated on his third wife. The Trial Court has held the accused guilty of committing offence U/s. 138 of N.I. Act. The Appellate Court confirmed the conviction and modified the sentence reducing S.I. for a period of one month and compensation of Rs. 1.00 lakh and directed to pay the same to the respondent. The accused has filed this revision. Sri. K.V. Narasimhan, learned counsel appearing on behalf of the petitioner submits the following contentions to assail the order of conviction:-

(2.) The Supreme Court in the cited case has held that the provisions of Sec. 326 Cr. P.C. do not apply to summary trial. In summons, warrant and Sessions cases, where evidence is partly recorded by Judge/Magistrate, the succeeding Judge/Magistrate can proceed to record further evidence of the witness/witnesses onwards. In other words, the evidence partly recorded by the Predecessor Judge remains legal and valid and the succeeding Judge has to continue to record the further evidence from the stage which the Predecessor Magistrate has stopped. But in case of summary trial, Sec. 326 does not apply, therefore, a succeeding Magistrate cannot rely upon the evidence recorded by his Predecessor and he should afresh record the evidence of the witnesses. The Supreme Court has further held that the irregularity of the Succeeding Judge, relying upon the evidence recorded by his Predecessor is not curable U/s. 465 Cr. P.C. and has directed de-novo trial.

(3.) The provisions of Sec: 143 of N.I. Act and Sec. 260(2) of Cr. P.C. are extracted hereinabove for convenient reference:-