ANUJ SHARMA Vs. ATUL SHAH

JUDGEMENT

(1.) HEARD.

(2.) BY this revision application, the applicant challenges the order dated 2nd June 2007 passed by the learned Metropolitan Magistrate, 6th Court, Mazgaon, Mumbai rejecting the application of the revision applicant for denovo trial under section 326(3) of the Code of Criminal Procedure.

(3.) THERE is no dispute between the parties that in the present case the evidence has been recorded in verbatim and not as in case of a summary trial. Learned counsel for the applicant however submitted that merely because the evidence has been recorded in verbatim and not as in case of a summary trial does not mean that the trial should be regarded as a summons trial or a warrant trial. The trial in the present case for an offence under section 138 of the Negotiable Instruments Act was a summary trial inasmuch as no order under second proviso to section 143 of the Code was ever passed by the learned Magistrate. Since the trial is a summary trial by reason of sub-section (3) of section 260 of the Code the trial must be held denovo and the evidence previously recorded before the learned Magistrate (Mr.V.K. Sharma) cannot be read by the new magistrate.