abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO. 308 OF 2007 Anuj Sharma .. Applicant V/s Atul Shah & Anr. .. Respondents Mr.I.S. Badigannawar for the applicant. Mr.D.P. Adsule, A.P.P. for the State. Mr.M.V. Swar for the respondent no.1. CORAM : D.G. KARNIK, J. DATE : 21ST FEBRUARY 2008 P.C. P.C. P.C. : 1. Heard. 2. By this revision application, the applicant challenges the order dated 2nd June 2007 passed by the learned Metropolitan Magistrate, 6th Court, Mazgaon, Mumbai rejecting the application of the revision applicant for denovo trial under section 326(3) of the Code of Criminal Procedure. 3. The revision applicant is being tried for an - 2 - alleged offence under section 138 of the Negotiable Instruments Act. The evidence of the complainant as also the statement of the applicant under section 313 of the Code of Criminal Procedure (for short "the Code") has also been recorded. After recording of the evidence of the prosecution and the statement of the applicant under section 313 of the Code, the learned Magistrate (Mr.V.K. Sharma) who has recorded the evidence was transferred. The defence evidence of the applicant remains to be recorded. I am informed at the bar that the applicant wants to adduce evidence in rebuttal and has stated so in his statement under section 313 of the Code. 4. After the transfer of Mr.V.K. Sharma, Mr.R.N. Pande has taken charge of the Court of Metropolitan Magistrate, 6th Court. An application was presented to Mr.R.N. Pande, Metropolitan Magistrate praying for a denovo trial to be held in view of section 326(3) of the Code. By his order dated 2nd June 2007 the learned Magistrate rejected the application. That order is impugned in this revision application. 5. There is no dispute between the parties that in the present case the evidence has been recorded in verbatim and not as in case of a summary trial. Learned counsel for the applicant however submitted that merely - 3 - because the evidence has been recorded in verbatim and not as in case of a summary trial does not mean that the trial should be regarded as a summons trial or a warrant trial. The trial in the present case for an offence under section 138 of the Negotiable Instruments Act was a summary trial inasmuch as no order under second proviso to section 143 of the Code was ever passed by the learned Magistrate. Since the trial is a summary trial by reason of sub-section (3) of section 260 of the Code the trial must be held denovo and the evidence previously recorded before the learned Magistrate (Mr.V.K. Sharma) cannot be read by the new magistrate. 6. In my view, the matter is not res integra. In Shivaji Sampat Jagtap v. Rajan Hiralal Arora, reported in 2006 ALL MR (Cri.) 2612, this Court has held that when the evidence is recorded by a Magistrate verbatim as in case of a regular trial and is not in the form of a summary as in case of a summary trial, it is not necessary to hold a denovo trial on transfer of the Magistrate. That decision has been followed in Ramilaben Trikamlal Shah v. Tube and Allied Products, reported in 2007 ALL MR (Cri.) 1637. 7. Learned counsel for the applicant strenuously submitted that the decisions require aforementioned reconsideration and the matter may be referred to a - 4 - Larger Bench for reconsideration. I am unable to persuade myself with the request when two learned Judges of this Court have in two different cases taken a view that in such a situation denovo trial is not necessary. 8. No other point was urged. 9. In the circumstances, there is no merit in the application which is hereby rejected summarily. (D.G. KARNIK, J.)