Challenge is to the order dated 10.11.2011 passed by the Additional Sessions Judge, Ludhiana, whereby an application filed by the petitioners for remanding the case to the Judicial Magistrate for its re-trial, has been dismissed.

The petitioners are accused in a complaint filed by the respondent under Section 138 of the Negotiable Instruments Act. The trial Court, after recording preliminary evidence, summoned the Prasher Ajay 2013.10.25 18:04 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Revision No. 29 of 2013 (O&M) 2 petitioners in the said complaint. The petitioners put in appearance on 23.11.2009 and were released on bail by the said Court. Thereafter, a notice of accusition (Annexure P-1) was served upon them. On 15.02.2010, the complainant partly examined one witness and the case was adjourned to 19.04.2010 for remaining evidence of the complainant-respondent. It is worth mentioning here that on 23.11.2009, 03.12.2009 and 15.02.2010 the proceedings of the case took place before Shri Jarnail Singh, the then Judicial Magistrate Ist Class and thereafter, he was transferred from Ludhiana and Ms. Deepti Gupta, assumed the charge in his place as Judicial Magistrate Ist Class and proceeded with the case by recording remaining evidence of the complainant and examining the accused-petitioner under Section 313 Cr. P.C. Ultimately, vide judgment dated 30.08.2011, the accused- petitioner was convicted under Section 138 of the Negotiable Instruments Actand was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.2000/-, against which, the accused-petitioner preferred an appeal. During appeal, the petitioiners made an application before the Additional Sessions Judge, Ludhiana, to remand the case to learned Magistrate for its re-trial in view of the judgment delived by the Hon'ble Supreme Court in case Nitinbhai Saevatilal Shah and another Vs. Manubhai Manjibhai Panchal and another , 2011 (4) RCR 148. However, the application was dismissed by the Additional Sessions Judge, Ludhiana, on 10.11.2012. Hence, this petition.

Prasher Ajay Learned counsel for the petitioners as argued that as per 2013.10.25 18:04 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Revision No. 29 of 2013 (O&M) 3 the proviso appended to Section 143 (1) of the Negotiable Instruments Act, a complaint under Section 138 of the Act, should be tried summarily by the Judicial Magistrate. However, if the Magistrate, during the course of the trial, decide to deviate from the procedure of summary trial, then in that eventuality, he has to pass a specific order for adopting the other procedure for trial, than the summary trial. He can, therefter, recall any witness, who may have been examined and proceed to hear or re-hear the case in the manner provided by the Code of Criminal Procedure . He has further argued that since no specific order, as contamplated in the proviso to Section 143 (1) of the Act, has been passed on transfer of Shri Jarnail Singh, the then Judicial Magistrate Ist Class, Ludhiana, who was hearing the complaint earlier, his successor Ms. Deepti Gupta, Judicial Magistrate, Ist Class, Ludhiana, could not proceed with the trial after receiving the evidence from the complainant and convicct the petitioners. Reference has been made to to a judgment delivered by this Court in case Budh Ram (deceased) vs. State of Haryana , 1985 (1) RCR (Criminal) 510, wherein Section 16 (1) of the Prevention of Food Adulteration Act was examined, which provides that a complaint under the said Act was to be tried by a Magistrate in a summary manner. However, if the trial Magistrate forms an opinion that in the facts and circumstances of the case, enhanced term of punishment had to be awarded, in that eventuality by passing a specific order in that regard, the Magistrate can proceed like a summon trial.

Learned counsel for the petitioners, while referring to Prasher Ajay Section 326 (3) Cr.P.C., has stated that an explanation has been 2013.10.25 18:04 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Revision No. 29 of 2013 (O&M) 4 provided therein that in summary trials, a Magistrate who succeeds another Magistrate who had recorded the part or whole of the evidence, cannot act on the evidence so recorded by his predecessor.

It could not be disputed by learned counsel for the petitioners that in the present case the complaint under Section 138 of the Negotiable Instruments Act was tried as a regular summons case right from the beginning. Section 143 of the Negotiable Instruments Act provides specific procedure for trial of offences under Chapter XVII of the Act , which reads as under:-

As per the above Section, the procedure to be followed for a complaint under Section 138 of the Negotiable Instrument Act is as per Sections 262 to 265 Cr.P.C., which relates to the summary trials. As per proviso of Section 143 (1) of the Negotiable Instruments Act, if at the commencement of, or in the course of a summary trial, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter, recall any witness who may have been examined and proceed to hear or rehear the case in the maner provided by the said Code. In Budh Ram 's case (supra), similar question was answered by this Court.

In the present case, the complaint was tried as a regular summons case right from the beginning. Therefore, there was no requirement for the trial Magistrate to pass an order as per Section 143 (1) of the Act. Moreover, once the trial had begun as a regular summons case, the power under Section 326 (3) Cr.P.C., would not be applicable for proceeding with the trial. Similar question came up for consideration before this Court in Darshan Lal Vs. State of Punjab and others , 2012 (2) RCR (Criminal) 520, wherein it was observed as under:-

The judgment delivered by the Hon'ble Supreme Court in Nitinbhai Saevatilal Shah 's case (supra) will not be applicable to the facts of the present case, as the proceedings of summon trial were adopted initially by the trial Court.

In view of the above discussion, this Court is of the opinion that the impugned order passed by the Additional Sessions Judge, Ludhiana, does not require any interfere.

Resultantly, the present petition is dismissed.

(RITU BAHRI) 23.10.2013 JUDGE ajp Prasher Ajay 2013.10.25 18:04 I attest to the accuracy and integrity of this document High Court Chandigarh