10 June 2024


Judgments

High Court of Bombay

Pravin Vs. State of Maharashtra and Ors.

MANU/MH/2257/2022

11.07.2022

Criminal

If the earlier Magistrate has recorded the evidence in detail, there is no necessity for the succeeding Magistrate to hold de nova trial

In facts of present case, the applicant has filed Summary Criminal Case for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The applicant has led his evidence on affidavit and also led evidence of one more witness. When the matter was posted for recording statement of non-applicant no. 2 under Section 313 of the Code of Criminal Procedure, 1973 (CrPC) the accused has applied to the Magistrate for conducting de nova trial in terms of Section 326 of the CrPC. The said application was moved since the Magistrate who has recorded the evidence has been transferred and the case was assigned to another Magistrate. It was contention before the Magistrate that since it is a summary proceeding in terms of Section 147 of the Negotiable Instruments Act, it is a mandatory for the transferee Magistrate to conduct de nova trial. The learned Magistrate has rejected said contention, however, in revision, the learned Sessions Judge has reversed the order of the trial Court and directed to hold de nova trial.

The issue involved is covered by the decision of this Court in case of Ganpatrao Mahadeorao Kapse vrs. Rajiv Bhupendranath Sidhra, wherein this Court by relying on the decision of the Supreme Court in case of Mehsana Nagrik Sahakari Bank Ltd. vrs. Shreeji Cab Co. and others, has ruled that if the earlier Magistrate has recorded the evidence in detail, then there is no necessity for the succeeding Magistrate to hold de nova trial.

On perusal of the evidence, it is abundant clear that the complainant has filed his detail evidence on affidavit and he has been thoroughly cross-examined. Not only that the complainant has also examined one witness who has also been cross-examined. The record conspicuously reflects that the magistrate who has recorded the evidence has not taken mere notes of evidence, but, recorded evidence in extenso like summons triable case. It is evidence from the record that the evidence was recorded by in all three Magistrate and when the matter was transferred to the fourth one, at that time, the accused urged for de nova trial. Since the case was tried as a summons trial and the evidence is recorded in detail, the contention raised by the accused is wholly untenable.

In view of settled position, the impugned order would not sustain in the eyes of law. The learned Sessions Judge completely erred in understanding the settled position of law. The impugned order passed by the Sessions Judge, is set aside. Application allowed.

Tags : Evidence Denovo trial Legality

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