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IN THE SUPREME COURT OF INDIA

CRIMINAL  APPELLATE JURISDICTION  

CRIMINAL APPEAL NOS. 968-971   OF 2013

(Arising out of SLP(C) Nos.4381-4384/2012)

MEHSANA NAGRIK SAHKARI BANK LTD.           Appellant(s)

                    :VERSUS:

SHREEJI CAB CO.& ORS. ETC.                 Respondent(s)

O R D E R

1. Leave granted.

2. Heard  Mr.  Huzefa  Ahmadi,  learned  senior  

counsel appearing for the appellants and Mr. Shamik  

Sanjanwala, learned  counsel  appearing  for  the  

respondents.  

3. The only question raised in this appeal is as  

to whether the High Court should have stayed the  

trial by relying upon the judgment of this Court in  

Nitinbhai   Saevatilal  Shah  &  Anr.  Vs.  Manubhai  

Manjibhai Panchal & Anr., (2011) 9 SCC 638.

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3. The  appellant  Bank  had  filed  a  complaint  

before the competent Court under Section 138 of the  

Negotiable Instruments Act, 1881 against respondent  

Nos.1  to  3.   As  the  respondents  wanted  one  

additional party to be added to that complaint, they  

filed an application under Section 319 of the Code  

of Criminal  Procedure before  the Additional  Chief  

Judicial  Magistrate,  Mehsana.  That  application  

having  been  rejected,  a  Criminal  revision  

application was filed before the Principal Sessions  

Judge,  Mehsana.  That  Judge  confirmed  the  order  

passed  by  the  Trial  Court.  Thereafter,  the  

respondents  filed  an  application  before  the  High  

Court  for  quashing  and  setting  aside  the  orders  

passed  by  the  criminal  courts.  The  High  Court  

proceeded  on  an  entirely  different  premise  and  

disposed of the application filed by the respondents  

noting that the evidence in the matter had come to  

be recorded by Additional Chief Judicial Magistrate,  

Mehsana.  The  proceeding  under  Section  138  of  the  

Negotiable  Instruments  Act  is  a  summary  trial  

proceeding.  Hence,  the  concerned  successor  

Magistrate had to record the evidence de novo and  

any  order  passed  on  the  basis  of  the  evidence

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recorded by his predecessor was not valid. The High  

Court  relied  upon  the  above  judgment  in  support  

thereof  and  passed  an  order  directing  a  fresh  

recording of evidence. It is against this order of  

the High Court that this appeal, by special leave,  

has been filed.  

4. Mr.  Huzefa  Ahmadi,  learned  senior  counsel  

appearing for the appellant Bank pointed out that  

the  law  laid  down  by  this  Court  in  the  above  

authority is that when a proceeding is conducted as  

a summary trial, and when one Magistrate has partly  

heard  the  case  and  is  succeeded  by  another  

Magistrate, that  second Magistrate  has to  re-hear  

the whole case afresh and he cannot start from the  

stage the first Magistrate left it. There was no  

question of the High Court asking the entire matter  

to be looked into by another Magistrate de novo, in  

the present case because, in fact, the evidence had  

not been recorded in a summary manner, but it was  

recorded in  full. Mr.  Sanjanwala, learned  counsel  

appearing for the respondents, on the other hand,  

submits  that  the  law  laid  down  in  Nitinbhai  

Saevatilal  Shah  &  Anr.  Vs.  Manubhai  Manjibhai

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Panchal & Anr., (supra)  be followed.   

5. We have perused the notes of evidence which  

are produced on record. They clearly show that the  

evidence in this case was recorded in full and not  

in a summary manner. That being so, we cannot but  

accept the submission of Mr. Ahmadi.  

6. In the facts and circumstances of the case,  

we allow this appeal, set aside the order passed by  

the  High  Court  and  direct  the  Additional  Chief  

Judicial Magistrate, Mehsana, to proceed hereafter  

from the stage where it is pending now.  As far as  

the application of the respondents for adding some  

other person to the complaint is concerned, we are  

not  inclined  to  accept  that.  It  is  for  the  

complainant to decide as to against which party it  

wants  to  proceed.  That  application  will  stand  

rejected.   

.........................J (H.L. GOKHALE)

.........................J (MADAN B. LOKUR)

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New Delhi; July 12, 2013.