MANJU M AGARWAL Vs. STATE OF A.P.

JUDGEMENT

(1.) THIS criminal petition is directed against an order dt 15 -10 -2013 passed in Crl.M.P. No.52/2013 in CC No.58/2013 on the file of XIII Special Magistrate, Hyderabad.

(2.) THE facts in issue are as under: The second respondent herein filed a private complaint for an offence punishable under section 138 of the Negotiable Instruments Act, 1881 (for short "the NI Act"). The said case was initially taken on file as CC No.337/2013 and, later on, transferred and was renumbered as CC No.58/2013. The trial in the said case has commenced and P.W.1 was examined in chief and was also cross examined. It was posted for further evidence of the complainant. At that stage, the Presiding Officer of the said Court was transferred to some other court. But, however, the trial in the said case was proceeded with by the succeeding Magistrate and the case was posted for examination of the accused under section 313 Cr.P.C., At that stage, the petitioner/accused filed the above application under section 326, 461 (n), 263 and 264 Cr.P.C praying the court to conduct de novo trial in view of the judgment of the Apex Court in the learned Magistrate rejected the said application holding that the trial in the said case was tried as summons case and not as a summary trial case and therefore question of holding de novo trial would not arise. Assailing the said order, the present criminal petition is filed.

(3.) ON the other hand, Sri K. Ashok Reddy, the learned counsel for the second respondent strenuously contends that the procedure contemplated for trying the summons case and summary trial case is distinct and different and, as such, section 326(3) Cr.P.C., will not come in the way of the court to follow if the case is tried as summons case. As the present case was tried as summons case, which is evident from the record itself, he submits that there is no illegality even if the subsequent Magistrate continues with the recording of evidence.