Full Judgment Text
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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 968-971 OF 2013
(Arising out of SLP(C) Nos.4381-4384/2012)
MEHSANA NAGRIK SAHKARI BANK LTD. Appellant(s)
:VERSUS:
SHREEJI CAB CO.& ORS. ETC. Respondent(s)
O R D E R
1. Leave granted.
2. Heard Mr. Huzefa Ahmadi, learned senior
Shamik
counsel appearing for the appellants and Mr.
Sanjanwala,
learned counsel appearing for the
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respondents.
3. The only question raised in this appeal is as
to whether the High Court should have stayed the
trial by relying upon the judgment of this Court in
Nitinbhai Saevatilal Shah & Anr. Vs. Manubhai
Manjibhai Panchal & Anr., (2011) 9 SCC 638.
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3. The appellant Bank had filed a complaint
before the competent Court under Section 138 of the
Negotiable Instruments Act, 1881 against respondent
Nos.1 to 3. As the respondents wanted one
additional party to be added to that complaint, they
filed an application under Section 319 of the Code
of Criminal Procedure before the Additional Chief
Judicial Magistrate, Mehsana. That application
having been rejected, a Criminal revision
application was filed before the Principal Sessions
Judge, Mehsana. That Judge confirmed the order
passed by the Trial Court. Thereafter, the
respondents filed an application before the High
Court for quashing and setting aside the orders
passed by the criminal courts. The High Court
proceeded on an entirely different premise and
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disposed of the application filed by the respondents
noting that the evidence in the matter had come to
be recorded by Additional Chief Judicial Magistrate,
Mehsana. The proceeding under Section 138 of the
Negotiable Instruments Act is a summary trial
proceeding. Hence, the concerned successor
Magistrate had to record the evidence de novo and
any order passed on the basis of the evidence
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recorded by his predecessor was not valid. The High
Court relied upon the above judgment in support
thereof and passed an order directing a fresh
recording of evidence. It is against this order of
the High Court that this appeal, by special leave,
has been filed.
4. Mr. Huzefa Ahmadi, learned senior counsel
appearing for the appellant Bank pointed out that
the law laid down by this Court in the above
authority is that when a proceeding is conducted as
a summary trial, and when one Magistrate has partly
heard the case and is succeeded by another
Magistrate, that second Magistrate has to re-hear
the whole case afresh and he cannot start from the
stage the first Magistrate left it. There was no
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question of the High Court asking the entire matter
to be looked into by another Magistrate de novo, in
the present case because, in fact, the evidence had
not been recorded in a summary manner, but it was
recorded in full. Mr. Sanjanwala, learned counsel
appearing for the respondents, on the other hand,
submits that the law laid down in Nitinbhai
Saevatilal Shah & Anr. Vs. Manubhai Manjibhai
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Panchal & Anr., (supra) be followed.
5. We have perused the notes of evidence which
are produced on record. They clearly show that the
evidence in this case was recorded in full and not
in a summary manner. That being so, we cannot but
accept the submission of Mr. Ahmadi.
6. In the facts and circumstances of the case,
we allow this appeal, set aside the order passed by
the High Court and direct the Additional Chief
Judicial Magistrate, Mehsana, to proceed hereafter
from the stage where it is pending now. As far as
the application of the respondents for adding some
other person to the complaint is concerned, we are
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not inclined to accept that. It is for the
complainant to decide as to against which party it
wants to proceed. That application will stand
rejected.
.........................J
(H.L. GOKHALE)
.........................J
(MADAN B. LOKUR)
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New Delhi;
July 12, 2013.
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