JAIKISHAN KANJIWANI Vs. KUMAR MATCHING CENTRE NAGPUR

JUDGEMENT

(1.) Heard the respective Counsel appearing for the parties.

(2.) The applicant herein is raising exception to the order passed by the Judicial Magistrate, First Class (Special Court) in Summary Criminal Case No.8255 of 2007 dated 01/4/2010. The applicant is original complainant, who has tendered complaint against the respondent-original accused for commission of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the Act, 1881). It is not disputed that on receipt of the complaint, case is registered as summary criminal case and the process was directed to be issued on 02/8/2007. It further transpires that the complainant tendered his affidavit in the form of examination-in-chief on 12/01/2009 and he was cross-examined by the accused on 10/02/2009. Certain documents were presented by the complainant on record, which were given exhibit Nos. during the course of evidence. It appears that on several occasion, opportunity was given to the complainant to lead further evidence, however, it transpires that he failed to avail of the opportunity. Thereafter, statement of the accused as contemplated under Section 313 of Criminal Procedure Code came to be recorded on 14/8/2009. So also, the accused has presented on record his written submission on the same day. It appears from the record of the case that the matter was posted for arguments on 19/8/2009. It further transpires from the record that an application came to be tendered to the Court of Sessions by the applicant-original complainant for transfer of the matter from the leaned Magistrate trying the case to any other Magistrate. The said application was tendered on 27/8/2009 and the learned Sessions Judge issued order directing transfer of the matter on administrative ground to the Court of 6th J.M.F.C, in view of the order passed on 20/ 01/2010. The applicant, thereafter, filed pursis dated 12/02/2010 contending therein that enlisting of the matter for delivery of the judgment in the cause list is erroneous. It is contended that the complainant wants to lead further evidence in the matter, but he has not been given sufficient opportunity. It also further appears from the contentions raised by complainant that the case is registered as summary criminal case and as such it is not open for the transferee Magistrate to consider the evidence recorded by the earlier Magistrate and as such, as per Section 326 of the Code de novo trial has to be proceeded. Reliance was placed on several judgments of the Supreme Court and the High Court in support of the submission made in that behalf. The trial Magistrate, after extending opportunity to both the sides to address on the issue, proceeded to pass order on 01/4/2010 rejecting the contention raised by the applicant. The trial Court has recorded in the order that the matter has to be tried as summons case and the same was being tried as summons case by earlier Court and it is not necessary to record evidence afresh in the mater. The learned Magistrate, therefore, directed to place the matter for further stage, i.e. for final arguments. The order passed by the Magistrate during the continuance of the proceedings below Exh.l is subjected to challenge in this application presented under of the Code of Criminal Procedure.

(3.) The Counsel appearing for the applicant contends that in view of the provisions of Section 143 of the Act, the offences under Chapter-XVII shall have to be tried by the Judicial Magistrate of First Class in accordance with the provisions prescribed in the Criminal Procedure Code for conducting summary trial i.e. Sections 262 to 265 of the Code. The Counsel further contends relying on the second proviso to Section 143 of the Act that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate 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, the Magistrate shall after hearing the parties, record an order to that effect and there after recall any witness, who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code. It is contended that in the instant case, there is no order passed by the Magistrate directing to try the case as a Summons Case and as such, it has to be assumed that the trial in accordance with Section 143 of the Act is a summary trial and as such the evidence recorded by the earlier Magistrate prior to transfer of case cannot be taken into account by the transferee Judge. According to him the proviso to Section 326 of the Code, shall have no applicability to the present case. The Counsel appearing for the applicant has invited my attention to the proviso to Section 326 and contends that nothing in Section 326 shall apply to the summary trial and as such it is not open for the transferee Magistrate to consider the evidence already recorded. The learned Counsel has placed reliance on judgment in the matter of Pratibha Pandurang Salvi & others Vs. State of Maharashtra & another, 2010 CrLJ 730 and contends that the provisions of Section 326 of the Code shall have no applicability to the case and the matter would be covered under Sections 262 to 264 of the Code and as such, the evidence recorded before the earlier Magistrate cannot be taken into account by the transferee Magistrate.