JAGDAMBEY CAPITALS PRIVATE LIMITED Vs. KISAN AGRO TRACTOR AND OTHERS; HARI SINGH AUTOMOBILES AND ANOTHER

JUDGEMENT

(1.) This judgment shall dispose of Criminal Revision No.394 of 2012 titled "M/s Jagdambey Capitals Private Limited v. M/s Kisan Agro Tractor and others", Criminal Revision No.396 of 2012 titled "M/s Jagdambey Capitals Private Limited v. M/s Hari Singh Automobiles and another" and Criminal Revision No.397 of 2012 titled "M/s Jagdambey Capitals Private Limited v. M/s Kisan Agro Tractor and others" as the facts of the cases are identical and common question of law is involved. Facts are being taken from Criminal Revision No.394 of 2012 titled "M/s Jagdambey Capitals Private Limited v. M/s Kisan Agro Tractor and others", which has been filed for quashing the order dated 07.01.2012 passed by learned Additional Sessions Judge, Hisar whereby the judgment of conviction dated 29.03.2011 and order of sentence dated 31.03.2011 passed by learned Judicial Magistrate, First Class, Hisar, has been set aside.

(2.) Brief facts of the case are that petitioner filed a complaint against the respondents under Section 138 of the Negotiable Instruments Act, 1881 (in short "the Act of 1881"). The respondents were convicted by Judicial Magistrate Ist Class, Hisar under Section 138 of the Act of 1881 vide judgment dated 29.03.2011 and sentenced vide order dated 31.03.2011 to undergo simple imprisonment for a period of six months besides fine of Rs. 3,000/- each and were also further directed to pay compensation of Rs. 12,00,000/- to the petitioner/complainant. In case of default of payment of compensation, respondents were to undergo further simple imprisonment for six months. Aggrieved against the judgment of conviction and order of sentence, respondents preferred appeal before the Additional Sessions Judge, Hisar, Learned Additional Sessions Judge, Hisar, vide judgment dated 07.01.2012 noticed that case was transferred to another Judicial Magistrate Ist Class, who was required to proceed de novo and would not have taken into consideration the evidence recorded by his predecessor. In support of this view, learned Additional Sessions Judge has relied upon the judgment of Hon'ble Supreme Court in Nitinbhai Saevatilal Shah and another v. Manubhai Manjibhai Panchal and another, 2011 9 SCC 638, and set aside the judgment of conviction and order of sentence and remitted the case to trial Court to record evidence afresh and pass fresh orders. Hence, this revision petition.

(3.) Learned counsel for the petitioner vehemently contended that complaint under Section 138 of the Act of 1881 filed by the petitioner was tried as summons case and not as a summary case. Learned counsel vehemently contended that once the case has been tried as a summons case, full evidence has been recorded and opportunity to crossexamination has been given to the respondent, the question of following the summary procedure does not arise. In such situation fresh evidence is not required to be recorded, rather successor Magistrate was required to consider the evidence already recorded. To support his contention, learned counsel for the petitioner relied upon the decision rendered by Hon'ble Supreme Court in Mehsana Nagrik Sahkari Bank Ltd. v. Shreeji Cab Co. and others, 2014 3 RCR(Cri) 367wherein the case of Nitinbhai Saevatilal Shah has been considered and distinguished and also cited other judgments of various High Courts, which I need not mention here. As such the order of learned Additional Sessions Judge, directing the Magistrate to record evidence afresh and to hear the entire matter de novo, is not sustainable.