Criminal Misc.
not M-3393 of 2012 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1
Criminal Misc.
not M-3393 of 2012 (O&M) Jatinder Pal Singh ..Petitioner Versus State of Punjab and another ..Respondents 2.
Criminal Misc.
not M-3587 of 2012 (O&M) Jatinder Pal Singh ..Petitioner Versus State of Punjab and another ..Respondents Date of decision:
02. 08.2013.
CORAM: HON'BLE MRS.JUSTICE DAYA CHAUDHARY Present: Mr.Hemender Goswami, Advocate, for the petitioner.
Mr.Premjit Singh Hundal, AAG, Punjab for respondent No.1 – State.
Mr.J.S.Dadwal, Advocate for respondent No.2.
Daya Chaudhary, J.
By this common judgment, two petitions bearing Criminal Misc.
not M-3393 of 2012 and Criminal Misc.
not M-3587 of 2012 shall be disposed of as same question of law is involved in both the Rani Neetu 2013.08.13 10:23 I attest to the accuracy and integrity of this document Chandigarh Criminal Misc.
not M-3393 of 2012 (O&M) 2 petitions.
However, for the sake of brevity, the facts are being extracted from Criminal Misc.
not M-3393 of 2012.
Prayer in the present petition is for quashing of order dated 03.12.2011 passed by Judicial Magistrate Ist Class, Ludhiana in a complaint under Section 138 of Negotiable Instruments Act, 1881 (for short 'the Act').with a direction to learned Magistrate to hold de- novo trial by recording fresh evidence as per provisions of Section 326(3) of the Code of Criminal Procedure.
Briefly, the facts of the case as mentioned in the petition are that complaint No.257/2 of 2010 dated 23.04.2010 titled as 'Geeta Rani versus Jatinder Pal Singh' under Section 138 of the Act, was filed by respondent No.2.
It was alleged in the complaint that the petitioner had agreed to sell his residential house No.3500, Sector 32-A, Urban Estate, Ludhiana to complainant-respondent No.2 for a total consideration of `23,50,000/-.
Out of the said amount an amount of `12,50,000/- was received as earnest money.
The date of execution of sale deed was fixed for 22.05.2009, which was later on extended to 22.03.2010.
Later on, petitioner showed his inability to execute the sale deed and offered to return an amount of `13,50,000/- to the complainant.
He issued five different cheques.
Said cheques were presented in the bank for encashment.
Out of said cheques, one cheque bearing No.065312 dated 17.03.2010 for `1,50,000/- was dishonoured and complaint was filed.
Petitioner was summoned in the complaint and thereafter, complainant-respondent Rani Neetu 2013.08.13 10:23 I attest to the accuracy and integrity of this document Chandigarh Criminal Misc.
not M-3393 of 2012 (O&M) 3 No.2 got recorded her statement before the trial Court and was cross-examined.
Notice dated 31.08.2010 was issued by the trial Court to the petitioner to appear for facing trial under Section 138 of NI Act.
Learned Judicial Magistrate Ist Class, Ludhiana Sh.
Yukti Goyal, recorded the evidence and thereafter, he was transferred from Ludhiana.
The case was transferred to the Court of Sh.
Amrinder Pal Singh, Judicial Magistrate Ist Class, Ludhiana.
Thereafter Court of Sh.
Amrinder Pal Singh, Judicial Magistrate Ist Class, Ludhiana was abolished and it was further allocated and transferred to the Court of Judicial Magistrate Ist Class, Ms.Deepti Gupta.
An application was filed by the petitioner for retrial of the complaint as per provisions provided under Section 326(3) Cr.P.C.and prayer was made that evidence be recorded de-novo by the Successor Court.
The application of the petitioner was dismissed on the ground that the complaint was tried from the very beginning as summon case and not as summary case.
The order dated 03.12.2011 passed in the application, is subject matter of challenge in the present petition.
Learned counsel for the petitioner submits that the evidence in the present case was recorded by the earlier JMIC and not the case is pending before another JMIC.
As per provisions of Section 326(3) Cr.P.C., de-novo trial is required but still his application has been dismissed, which is contrary to the provisions as well as settled proposition of law.
Learned counsel for the Rani Neetu 2013.08.13 10:23 I attest to the accuracy and integrity of this document Chandigarh Criminal Misc.
not M-3393 of 2012 (O&M) 4 petitioner also submits that offence under Section 138 of the Act was to be tried summarily and the application has been rejected by holding that it has been tried as a summon case.
In summary proceedings, Successor Judge or Magistrate has no authority to proceed with the trial from a stage at which it was left by the former Magistrate.
Learned counsel for the petitioner also submits that the case of the petitioner is squarely covered by the judgment of Apex Court in Nitinbhai Sarvatilal Shah and another versus Manubhai Manjibhai Panchal and another, 2011 (4) RCR (Criminal) 148.
Learned counsel for the complainant-respondent No.2 opposes the submissions made by Learned counsel for the petitioner.
Learned counsel for the complainant submits that in case the procedure of summon case has been applied instead of summary procedure, the provisions of section 326(3) of Cr.P.C.would not be applicable.
Heard arguments of learned counsel for the petitioner as well as learned counsel for the complainant-respondent No.2 and have also perused the impugned order.
The grievance of the petitioner in the present petition is that the impugned order has been passed without taking into consideration the view taken in judgment of Hon’ble the Supreme Court in Nitinbhai Sarvatilal Shah's case (supra) as the case has not been dealt with in accordance with the procedure prescribed for summary trial but it was treated as of summon case.
The application Rani Neetu 2013.08.13 10:23 I attest to the accuracy and integrity of this document Chandigarh Criminal Misc.
not M-3393 of 2012 (O&M) 5 made by the petitioner has wrongly been dismissed without taking into consideration this fact.
Section 326(3) Cr.P.C.is reproduced as under:- “(326) Conviction or commitment on evidence partly recorded by one Magistrate and partly by another.- (1) ......(2) ......(3) Nothing in this section applies to summary trials or to cases in which proceedings have been stayed under section 322 or in which proceedings have been submitted to a superior Magistrate under section 325.”
The Hon'ble Supreme Court in Nitinbhai Saevatilal Shah's case (supra) has observed in para-17 of the judgment as follows :- “17.
The mandatory language in which Section 326(3) is couched, leaves no manner of doubt that when a case is tried as a summary case a Magistrate, who succeeds the Magistrate who had recorded the part or whole of the evidence, cannot act on the evidence so recorded by his predecessor.
In summary proceedings, the Rani Neetu 2013.08.13 10:23 I attest to the accuracy and integrity of this document Chandigarh Criminal Misc.
not M-3393 of 2012 (O&M) 6 successor Judge or Magistrate has no authority to proceed with the trial from a stage at which his predecessor has left it.
The reason why the provisions of subsections (1) and (2) of Section 326 of the Code have not been made applicable to summary trials is that in summary trials only the substance of evidence has to be recorded.
The Court does not record the entire statement of witnesses.
Therefore, the Judge or the Magistrate who has recorded such substance of evidence is in a position to appreciate the evidence led before him and the successor Judge or Magistrate cannot appreciate the evidence only on the basis of evidence recorded by his predecessor.
Section 326(3) of the Code does not permit the Magistrate to act upon the substance of the evidence recorded by his predecessor, the obvious reason being that if the succeeding Judge is permitted to rely upon the substance of the evidence recorded by his predecessor, there will be a serious prejudice to the accused and indeed, it would be difficult for a succeeding Magistrate himself to decide the matter effectively and to do substantial justice.”
Rani Neetu 2013.08.13 10:23 I attest to the accuracy and integrity of this document Chandigarh Criminal Misc.
not M-3393 of 2012 (O&M) 7 As per Section 326(3).the provisions of sub-section 326 (1) and 326(2) Cr.P.C.would not be applicable, if the case has been tried as a summons case.
In the present case, the evidence has been recorded in detail as required for trial of summon case.
not the successor Court is to only appreciate the evidence on record.
It can be at the most an irregularity as the evidence was to be tried in a summary manner but it has been tried as summon case so the provisions of Section 326(3) Cr.P.C.would not be applicable in the present case.
The judgment relied upon by the learned counsel for the petitioner is not applicable in the present case as it is to be applied in case the trial has been conducted in a summary manner.
There is no merit in the contentions raised by Learned counsel for the petitioner and both the petitions bearing Criminal Misc.
not M-3393 of 2012 and Criminal Misc.
not M-3587 of 2012 are hereby dismissed.
02.08.2013 (DAYA CHAUDHARY) neetu JUDGE Rani Neetu 2013.08.13 10:23 I attest to the accuracy and integrity of this document Chandigarh