BIPINBHAI VADILAL SONI Vs. SUHAS ASWINKUMAR DOSHI

JUDGEMENT

(1.) The appellant, original complainant, has preferred this appeal under Section 378 of the Code of Criminal Procedure, 1973 and challenged the judgment and order of acquittal passed by Sixth Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Dahod, in Criminal Case No. 937 of 2005 acquitting the respondent accused for the offence under Section 138 of the Negotiable Instruments Act, 1881 ("the Act" for short). According to the complainant as the accused was in need of finance, he demanded money from him and therefore Rs. 1,51,000/- were advanced to the accused who gave cheque No. 010706 dated 1.3.2005 for Rs. 1,51,000/- drawn on the Dahod Urban Co-operative Bank Limited towards repayment of the amount. On presentation of the cheque in the Bank, it returned unpaid with the endorsement "title of the account required". Therefore, notice through Advocate was served to the accused who gave false and evasive reply but did not pay the unpaid amount of the cheque. Therefore, complaint was filed in the Court of learned Chief Judicial Magistrate, Dahod and it was registered as Criminal Case No. 937 of 2005. The trial Court issued summons and the respondent accused appeared and denied having committed offence. Therefore, prosecution adduced evidence. On completion of recording of evidence, further statement of the respondent accused was recorded. After hearing learned Advocates for the parties, by the impugned judgment the trial Court acquitted the respondent accused. Being aggrieved by the said decision, the complainant has preferred this appeal.

(2.) I have heard learned Advocates for the parties at length and in great detail. I have also perused the record and proceedings of the trial Court.

(3.) Learned Advocate for the appellant Mr. Makwana submitted that the cases under Section 138 of the Act are required to be tried in summary manner and accordingly the present case was also tried in summary manner wherein only substance of evidence was recorded. He submitted that the evidence was recorded by two different learned Magistrates and their successor Magistrate who did not record the evidence, delivered the judgment. Therefore, in view of the decision of Hon'ble Supreme Court in the case of Nitinbhai Saevatilal Shah v. Manubhai Manjibhai Panchal, 2011 AIR(SC) 3076 the judgment is required to be set aside and matter is required to be remanded to the trial Court for de novo trial.