IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.03.2010 CORAM THE HONOURABLE MR. JUSTICE C.T.SELVAM Crl.O.P.No.31049 of 2006 and M.P.No.1 of 2006 A.V.Sivakumar ...Petitioner -Vs- A.Shanmugam ...Respondent Criminal Original Petition filed under Section 482 of Criminal Procedure Code to strike out the chief examination of P.W.1 recorded on 16.11.2006 in S.T.C.No.485 of 2006 on the file of the learned Judicial Magistrate II, Namakkal. For Petitioner : Mr.N.Manoharan For Respondent : No appearance O R D E R The petitioner herein seeks a direction of striking out the chief examination of P.W.1 recorded on 16.11.2006 in S.T.C.No.485 of 2006 on the file of the learned Judicial Magistrate II, Namakkal. 2.The prayer made arises in the following manner: A case alleging commission of offence under Section 138 of the Negotiable Instruments Act (hereinafter referred as Act) came to be filed before the learned Judicial Magistrate I, Namakkal. The same was taken on file as C.C.No.218 of 2003. P.W.1 in such case was examined in chief on 11.11.2005 and in cross on 15.06.2006. At such stage, the case under administrative order, was transferred to the learned Judicial Magistrate II, Namakkal. The same was numbered as S.T.C.No.485 of 2006 and P.W.1 again was examined in chief in such Court on 16.11.2006. 3.The learned counsel for the petitioner submits that permitting the chief-examination of P.W.1 for a second time before the second Court had afforded an opportunity to fill up the lacuna in the prosecution case which had been brought out in the course of his cross-examination before the former Court. The learned counsel https://hcservices.ecourts.gov.in/hcservices/ submits that in any event, the procedure followed, offends the provisions of the Criminal Procedure Code. The present was a case triable as a summons case and could well have been tried summarily. It is only where a Court has tried the case summarily and then the case has been transferred to another Judge or other Magistrate, it would be necessary for the transferee Judge or Magistrate to take fresh evidence. This is so, because Section 326 Cr.P.C. provides that a succeeding Magistrate may act on the evidence recorded by his predecessors or partly recorded by his predecessors and partly by himself. Section 326 (3) Cr.P.C. specifically makes such a procedure inapplicable in a case tried summarily. In the instant case, the former Court had not tried the case in a summary manner and while so, the transferee Court viz., Judicial Magistrate II, Namakkal could not have recorded the evidence of P.W.1 afresh. 4.Owing to non-appearance of the respondent, this Court appointed Mr.J.Praveen Kumar as Amicus Curaie. He is not available today. However, this petition may be disposed of straightaway. 5.The contentions raised by the learned counsel for the petitioner are well founded and the reliance placed by him in decision of the Shivaji Sampat Jagtap v. Rajan Hirala Arora and another [2007 Crl.L.J.122] is quite appropriate. The relevant portions of such judgment read as follows: "18.Under Section 263 in Chapter XXI of the Code, in every case tried summarily, the Magistrate shall enter, in such form as the State Government may direct, is expected to "maintain the record" as mentioned in clauses (a) to (j) of that section. Section 264 provides that in every case tried summarily in which the accused does not plead guilty, the Magistrate shall record "the substance of the evidence" and a judgment containing "a brief statement of the reasons" for the finding. Thus, the indicator to know as to whether the case under Section 138 of the Act has been or is being tried summarily so as to attract the provisions contained in sub- section(3) of Section 326 of the Code is the compliance of Sections 263 and 264 of the Code. In other words, a case, which is triable as summarily, and in which the record of the proceedings has been prepared in accordance with the provisions of Sections 263 and 264 of the Code could be stated to have been tried summarily for the purpose of Section 326(3) and in that case the evidence recorded by one Magistrate cannot be read in evidence by succeeding Magistrate. The succeeding Magistrate, however, in a case, where the procedure contemplated under Sections 263 and 264 of the Code in particular has not been followed, he need not hold a trial de novo. In short, if no record as per Sections 263 and 264 has been or is being maintained by the Magistrate and the case has been or is being tried as a regular summons case and not tried https://hcservices.ecourts.gov.in/hcservices/ in a summary way as contemplated under Sections 262 to 265 of the Code, such case shall not be considered as tried in summary way, though triable summarily as provided for under sub-section(1) of Section 143 of the Act, so as to attract the provisions of Section 326(3) of the Code. Therefore, the evidence recorded by one Magistrate in such a case may be legally read in evidence by his successor and no de novo trial shall be necessary. From the above discussion, the following principle broadly emerges: a case under Section 138 of the Act, which requires to be tried in a summary way as contemplated under Section 143 of the Act. is in fact, was tried as regular summons case it would not come within the purview of Section 326(3) of the Code. In other words, if the case in substance was not tired in a summary way, though was triable summarily, and was tried as regular summons case, it need not be heard de novo and the succeeding Magistrate can follow the procedure contemplated under Section 326(1) of the Code. However, where a case is tried in a summary way by following the procedure contemplated by the provisions of Chapter XXI of the Code and in particular Sections 263 and 264 therein, alone is intended to be excluded from the purview of Section 326(1) of the Code." 6.Finding myself in total agreement with the observations referred to above, it is directed that the Criminal Original Petition shall stand allowed. The evidence of P.W.1 recorded in S.T.C.No.485 of 2006 on the file of learned Judicial Magistrate II, Namakal on 16.11.2006 shall stand eschewed from consideration. However, it is made clear that if such Court finds it necessary to further examine such witness in the interests of justice, he may do so in exercise of powers envisaged under proviso to Section 326(1) Cr.P.C. It is made clear that such exercise, even if carried out, shall not be entered upon for the purpose of filling up of lacuna, if any, in the earlier evidence of P.W.1. 7.Accordingly, the Criminal Original Petition shall stand allowed. Consequently, the connected miscellaneous petition is closed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar gm https://hcservices.ecourts.gov.in/hcservices/ To The Judicial Magistrate II, Namakkal 1 cc to Mr.N.Manokaran, Advocate, Sr.No.13912 Crl.O.P.No.31049 of 2006 and M.P.No.1 of 2006 RSN {CO} TP/19.3.2010. https://hcservices.ecourts.gov.in/hcservices/