Case Note & Summary
The applicant, Jaikishan Kanjiwani, filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 against the respondent, M/s Kumar Matching Centre, for dishonour of a cheque. The case was registered as Summary Criminal Case No. 8255 of 2007 before the Judicial Magistrate, First Class (Special Court), Nagpur. Process was issued on 2 August 2007. The complainant tendered his affidavit in examination-in-chief on 12 January 2009 and was cross-examined on 10 February 2009. Certain documents were exhibited. The complainant was given several opportunities to lead further evidence but failed to avail them. The accused's statement under Section 313 CrPC was recorded on 14 August 2009, and the accused also filed written submissions. The matter was posted for arguments on 19 August 2009. On 27 August 2009, the complainant filed a transfer application before the Sessions Court, which was allowed on administrative grounds, transferring the case to the 6th J.M.F.C. on 20 January 2010. On 12 February 2010, the complainant filed a pursis contending that the listing for judgment was erroneous, as he wanted to lead further evidence and that since the case was a summary criminal case, the transferee Magistrate must conduct a de novo trial under Section 326 CrPC. The trial Magistrate rejected this contention on 1 April 2010, holding that the matter was being tried as a summons case and it was not necessary to record evidence afresh. The complainant filed the present criminal application challenging that order. The High Court allowed the application, holding that in summary trials, the provisions of Section 326(1) CrPC do not apply, and the transferee Magistrate must proceed de novo as per Section 326(2) CrPC. The impugned order was set aside, and the transferee Magistrate was directed to proceed with the trial de novo from the stage of recording of evidence.
Headnote
A) Criminal Procedure - Summary Trial - Transfer of Magistrate - Section 326 CrPC - Section 138 Negotiable Instruments Act, 1881 - The issue was whether after transfer of a summary criminal case under Section 138 NI Act from one Magistrate to another on administrative grounds, the transferee Magistrate must conduct a de novo trial. The Court held that in summary trials, the provisions of Section 326(1) CrPC do not apply, and the transferee Magistrate must proceed de novo as per Section 326(2) CrPC. The order of the trial Magistrate rejecting the complainant's application for de novo trial was set aside. (Paras 1-11)
B) Negotiable Instruments Act - Dishonour of Cheque - Summary Trial - Procedure - Section 138 NI Act - The Court clarified that in summary cases, the evidence recorded by the predecessor Magistrate cannot be acted upon by the successor Magistrate, and the trial must commence afresh. The Court relied on the proviso to Section 326(1) CrPC and Section 326(2) CrPC. (Paras 5-11)
Issue of Consideration
Whether in a summary criminal case under Section 138 of the Negotiable Instruments Act, 1881, after transfer of the case from one Magistrate to another on administrative grounds, the transferee Magistrate is required to hold a de novo trial under Section 326 of the Code of Criminal Procedure, 1973.
Final Decision
The High Court allowed the criminal application. The impugned order dated 1 April 2010 passed by the Judicial Magistrate, First Class (Special Court) in Summary Criminal Case No. 8255 of 2007 was set aside. The transferee Magistrate was directed to proceed with the trial de novo from the stage of recording of evidence.
Law Points
- Section 326 CrPC mandates de novo trial in summary cases after transfer of Magistrate
- Section 138 Negotiable Instruments Act
- 1881
- summary trial procedure
- transfer of case on administrative grounds
Case Details
2010 LawText (BOM) (07) 157
Criminal Application No. 979 of 2010
Shri G. L. Bajaj for applicant, Shri A. K. Choubey for respondent
Jaikishan Kanjiwani s/o Premchand Kanjwani
M/s Kumar Matching Centre through its proprietor Topandas Dewani s/o Pamandas Dewani
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Nature of Litigation
Criminal revision application challenging order of trial Magistrate rejecting application for de novo trial in a summary criminal case under Section 138 of the Negotiable Instruments Act, 1881 after transfer of the case on administrative grounds.
Remedy Sought
The applicant (original complainant) sought setting aside of the order dated 1 April 2010 passed by the Judicial Magistrate, First Class (Special Court) in Summary Criminal Case No. 8255 of 2007, and a direction to the transferee Magistrate to conduct a de novo trial.
Filing Reason
The applicant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 against the respondent for dishonour of a cheque. After the case was transferred to another Magistrate on administrative grounds, the applicant contended that the transferee Magistrate must hold a de novo trial under Section 326 CrPC, which the trial Magistrate rejected.
Previous Decisions
The trial Magistrate rejected the applicant's contention on 1 April 2010, holding that the matter was being tried as a summons case and it was not necessary to record evidence afresh.
Issues
Whether in a summary criminal case under Section 138 of the Negotiable Instruments Act, 1881, after transfer of the case from one Magistrate to another on administrative grounds, the transferee Magistrate is required to hold a de novo trial under Section 326 of the Code of Criminal Procedure, 1973.
Submissions/Arguments
The applicant argued that since the case was registered as a summary criminal case, the transferee Magistrate cannot consider the evidence recorded by the earlier Magistrate, and under Section 326 CrPC, a de novo trial must be proceeded with.
The respondent opposed the application, supporting the trial Magistrate's order that the matter was being tried as a summons case and no de novo trial was necessary.
Ratio Decidendi
In summary trials, the provisions of Section 326(1) of the Code of Criminal Procedure, 1973 do not apply, and the successor Magistrate must proceed de novo as per Section 326(2) CrPC. The evidence recorded by the predecessor Magistrate cannot be acted upon by the successor Magistrate in summary cases.
Judgment Excerpts
In summary trials, the provisions of Section 326(1) of the Code of Criminal Procedure, 1973 do not apply, and the successor Magistrate must proceed de novo as per Section 326(2) CrPC.
The evidence recorded by the predecessor Magistrate cannot be acted upon by the successor Magistrate in summary cases.
Procedural History
The applicant filed a complaint under Section 138 NI Act, which was registered as Summary Criminal Case No. 8255 of 2007. Process was issued on 2 August 2007. The complainant tendered his affidavit in examination-in-chief on 12 January 2009 and was cross-examined on 10 February 2009. The accused's statement under Section 313 CrPC was recorded on 14 August 2009. The matter was posted for arguments on 19 August 2009. On 27 August 2009, the complainant filed a transfer application before the Sessions Court, which was allowed on administrative grounds on 20 January 2010, transferring the case to the 6th J.M.F.C. On 12 February 2010, the complainant filed a pursis contending that the listing for judgment was erroneous and that a de novo trial was required. The trial Magistrate rejected this contention on 1 April 2010. The complainant then filed the present criminal application before the High Court.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
- Code of Criminal Procedure, 1973: 313, 326
