Punjab-Haryana High Court
Raksha Rani vs Sanjay Rajan on 12 March, 2012
Author: Naresh Kumar Sanghi
Bench: Naresh Kumar Sanghi
Criminal Revision No.739 of 2012 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Revision No.739 of 2012
Date of decision:-12.03.2012
Raksha Rani
...Petitioner
Versus
Sanjay Rajan
...Respondent
CORAM: HON'BLE MR. JUSTICE NARESH KUMAR SANGHI
Present:- Mr. Manish Kumar Singla, Advocate
for the petitioner.
NARESH KUMAR SANGHI J.(Oral)
Brief facts of the case are that the petitioner/complainant, Raksha Rani, is dealing in the business of selling cement under the name and style of M/s Narain Dass and Company at Dhuri. Narain Dass, husband of the complainant, is Manager of said firm and looking after the business affairs. Smt. Raksha Rani authorized her husband-Narain Dass to file a complaint against respondent-Sanjay Rajan alleging the commission of offence punishable under Section 138 of the Negotiable Instruments Act. Respondent-Sanjay Rajan had purchased cement from the petitioner for construction of his Criminal Revision No.739 of 2012 -2- school building and in order to discharge the part of liability for price of the cement, so purchased on credit, issued cheque No.427201 dated 25.12.2007 for Rs.70,000/- drawn on ICICI Bank Limited, Feroze Gandhi Market Branch, Ludhiana, in favour of Raksha Rani. The said cheque was bounced and the complainant filed the complaint for the offence, punishable under Section 138 of Negotiable Instruments Act. Preliminary evidence was led; respondent-accused was summoned to face the trial; notice of accusation was served upon him; the complainant led hers evidence; statement of accused in terms of Section 313, Cr.P.C. was recorded and the accused also led evidence in his defence. Thereafter, the learned trial court, vide its judgment dated 09.8.2010, held the respondent-accused guilty for the offence punishable under Section 138 of Negotiable Instruments Act and sentenced him to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.10,000/- and in default of payment of fine, to further undergo simple imprisonment for thirty days.
The respondent-accused filed an appeal challenging the judgment of conviction and order of sentence and the same came up for hearing before the learned Additional Sessions Judge, Sangrur, on 11.2.2012, who set aside the judgment of conviction and the order of sentence, passed by the learned trial court and remitted the case to the trial court for de novo trial on the ground of non-compliance of Criminal Revision No.739 of 2012 -3- Section 326, Cr.P.C. In support of its finding, the learned lower Appellate Court relied upon the decision of the Hon'ble Supreme Court of India, dated 01.09.2011, passed in Criminal Appeal No.1903 of 2011, titled "Nitin Bhai Saevtilal Shah and another versus Manubhai Manjibhai Panchal and another". The said order of learned lower Appellate Court is under challenge before this Court by way of present revision petition.
The respondent was ordered to be summoned vide order dated 02.8.2008. On 01.12.2008, he put in appearance before the learned trial court. Notice of accusation was served upon him on 17.12.2008 and thereafter on 16.1.2009 learned Judicial Magistrate 1st Class, Dhuri, recorded the statements of two witnesses. One more witness was examined by the complainant on 17.3.2009 and thereafter the complainant's evidence was closed. On 15.4.2009, the case was transferred to the court of learned Sub Divisional Judicial Magistrate, Dhuri. The case was again transferred to the court of learned Judicial Magistrate 1st Class, Dhuri, on 18.8.2009. On 03.09.2009, statement of the respondent-accused was recorded in terms of Section 313, Cr.P.C., and thereafter, the case was posted for defence evidence. The case was ultimately entrusted to Shri Amrinder Pal Singh, Judicial Magistrate 1st Class, Dhuri, on 07.8.2010. Vide order dated 09.8.2010, the defence evidence was closed by order of the Court and on the same day, the final Criminal Revision No.739 of 2012 -4- arguments were heard. The respondent-accused was convicted and sentenced by Shri Amrinder Pal Singh, Judicial Magistrate 1st Class, Dhuri, as stated above.
A perusal of the zimni orders, reproduced by the petitioner in his petition, reveals that notice of accusation was served upon the accused on 07.12.2008 by learned Judicial Magistrate 1st Class, Dhuri. Two witnesses, thereafter were recorded on 16.1.2009 and one more witness was examined on 17.3.2009. On 18.8.2009, the case was transferred to some other Judicial Magistrate and on that day, the complainant's evidence was closed. On 09.12.2009, the case was transferred to the Court of learned Sub Divisional Judicial Magistrate, Dhuri. The defence evidence, in part, was recorded by the learned Sub Divisional Judicial Magistrate, Dhuri on different dates. On 07.8.2010, the case was again transferred to the court of Shri Amrinder Pal Singh, Judicial Magistrate 1st Class, Dhuri, who, vide his judgment and order dated 09.8.2010, convicted and sentenced the respondent-accused.
The aforesaid proceedings clearly reveal that the evidence of the complainant as well as of the defence side was recorded by different Presiding Officers and ultimately the case was finally decided by Shri Amrinder Pal Singh, learned Judicial Magistrate 1st Class, Dhuri, which was in contravention of Section 326, Cr.P.C. The said section is reproduced below :- Criminal Revision No.739 of 2012 -5-
"326. Conviction or commitment on evidence partly recorded by one Judge or Magistrate and partly by another.
(1) Whenever any Judge or Magistrate after having heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercises jurisdiction therein and is succeeded by another Judge or Magistrate who has and who exercises such jurisdiction, the Judge of Magistrate so succeeding may act on the evidence so recorded by his predecessor and partly recorded by his predecessor and partly recorded by himself.
Provided that if the succeeding Judge or Magistrate is of opinion that further examination of any of the witness, whose evidence has already been recorded is necessary in the interests of justice, he may re-summon any such witness, and after such further examination, cross- examination and re-examination, if any, as he may permit, the witness shall be discharged.
(2) When a case is transferred under the provisions of this Code from one Judge to another Judge or from one Magistrate to another Magistrate, the former shall be deemed to cease to exercise jurisdiction therein, and to be succeeded by the latter, within the meaning of sub- section (1).
(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."
Sub-section (3) would reveal that the general principle laid down would not apply to summary trials. It is an admitted fact that the accused was tried summarily. The evidence was recorded by different Presiding Officers and thereafter the case was finally decided by another Presiding Officer. Prejudice to the accused was writ large. Learned lower Appellate Court has rightly remanded the case to the learned trial court for de novo trial in view of the judgment passed in Nitin Bhai Saevtilal Shah's case (supra). Criminal Revision No.739 of 2012 -6-
Finding no merit in the petition, the same is hereby dismissed.
March 12,2012 ( NARESH KUMAR SANGHI ) Vijay Asija JUDGE