//
you're reading...
CHEQUE BOUNS CASE

cheque bounce case should be tried and heard by the same magistrate and not by his successor= From the language of Section 326(3) of the Code, it is plain that the provisions of Section 326(1) and 326(2) of the new Code are not applicable to summary trial. Therefore, except in regard to those cases which fall within the ambit of Section 326 of the Code, the Magistrate cannot proceed with the trial placing reliance on the evidence recorded by his predecessor. He has got to try the case de novo.

Ahmedabad(Amdavad) Montage.

Image via Wikipedia

 Reportable

 IN THE SUPREME COURT OF INDIA

 CRIMINAL APPELLATE JURISDICTION

 CRIMINAL APPEAL NO. 1703 OF 2011

 (Arising out of SLP (Criminal) No. 723 of 2011)

Nitinbhai Saevatilal Shah & Another ... Appellant

 Versus

Manubhai Manjibhai Panchal & Another ... Respondents

 J U D G M E N T

J.M. PANCHAL, J.

 Leave Granted.

2. This appeal by grant of special leave, is directed against 

 judgment dated August 9, 2010, rendered by the learned 

 Single Judge of High Court of Gujarat at Ahmedabad in 

 Criminal Revision Application No. 529 of 2003, by which 

 1

 the conviction of the appellants recorded by the learned 

 Metropolitan Magistrate, Ahmedabad in Summary Case 

 No. 2785 of 1998 under Section 138 of Negotiable 

 Instruments Act, 1881 and confirmed by the learned 

 Additional City Sessions Judge, Court No. 13, 

 Ahmedabad is maintained but the sentence imposed 

 upon the appellants for commission of said offence is set 

 aside and matter is remanded to the learned Magistrate 

 for passing appropriate order with regard to sentence and 

 compensation, if any under Section 357 of Cr. P.C. within 

 three months, after giving the parties reasonable 

 opportunity of being heard.

3. The respondent No.1 herein is original complainant. He 

 was doing business in the name of Navkar Steel Pvt. Ltd. 

 The Complainant is known to the appellant No.1. The 

 appellant No.1 is the Director of appellant No.2 which is 

 a private limited company. It is the case of the 

 complainant that the appellant No.1 had borrowed hand 

 loan from him and in order to pay the legal dues, the 

 2

appellant No.1 had given a cheque dated October 13, 

1998 for the sum of Rs.11,23,000/- drawn on the State 

Bank of India. The cheque was signed by the appellant 

No.1 on behalf of the appellant No.2. The complainant 

presented the cheque for realization in the Central Bank 

of India. The cheque was dishonoured and sent back to 

the complainant with a memorandum dated October 15, 

1998 mentioning that the cheque was dishonoured 

because of insufficiency of funds. Thereupon, the 

complainant served a demand notice dated October 28, 

1998 which was returned unserved as unclaimed on 

November 5, 1998. Therefore another notice was served 

by post under Postal Certificate. The appellants failed to 

pay the amount mentioned in the notice within 15 days 

from the date of receipt of notice. Therefore, the 

complainant filed complaint in the Court of learned 

Metropolitan Magistrate, Court No.2, Ahmedabad on 

December 15, 1998 and prayed to convict the appellants 

under Section 138 of the Act. On the basis of the 

complaint, Summary Case No. 2785 of 1998 was 

 3

 registered and after recording verification, the learned 

 Magistrate had issued process. 

4. The complainant examined himself and his witnesses 

 and also produced documentary evidence in support of 

 his case set up in the complaint. The appellants did not 

 lead any defence evidence. However, the appellant No.1 

 in his statement recorded under Section 313 of the Code 

 stated that his signature was obtained on the blank 

 paper by kidnapping him and writing was written on it 

 and that false complaint was lodged by misusing the 

 signed blank cheque.

5. After the evidence was recorded by the learned 

 Metropolitan Magistrate as stated above, he came to be 

 transferred and therefore, ceased to exercise jurisdiction 

 in the case. He was succeeded by another learned 

 Metropolitan Magistrate who had and who exercised such 

 jurisdiction. On August 03, 2001, a pursis was filed 

 before the learned Metropolitan Magistrate by the 

 appellants as well as the original complainant i.e. the 

 4

 respondent No.1 herein, declaring that the parties had no 

 objection to proceed with the matter on the basis of 

 evidence recorded by predecessor in office of the learned 

 Metropolitan Magistrate in terms of Section 326 of the 

 Code. On the basis of said pursis the learned 

 Metropolitan Magistrate considered the evidence led by 

 the complainant and heard the learned counsel for the 

 parties. 

6. The learned Metropolitan Magistrate by judgment dated 

 February 13, 2003, delivered in Summary Case No. 2785 

 of 1998, convicted both the appellants under Section 138 

 of the Act and sentenced each of them to suffer simple 

 imprisonment for three months with fine of Rs.3,000/- 

 i/d simple imprisonment for 15 days. 

7. Feeling aggrieved, the appellants preferred Criminal 

 Appeal No.19 of 2003 in the Court of the learned 

 Additional City Sessions Judge at Ahmedabad. The 

 learned Judge found that conviction of the appellants 

 recorded under Section 138 of the Act was perfectly just 

 5

 but noticed that the appellant No. 2 is a private limited 

 company and therefore, could not have been sentenced to 

 simple imprisonment for three months. Therefore, the 

 learned Additional City Sessions Judge, Court No.13, 

 Ahmedabad by judgment dated October 16, 2003 

 dismissed the appeal but set aside sentence of simple 

 imprisonment of three months imposed upon the 

 appellant No.2 and maintained the full sentence imposed 

 upon appellant No.1 as well as sentence of fine of 

 Rs.3,000/- imposed upon the appellant No.2. 

8. Dissatisfied with the judgment of the First Appellate 

 Court, the appellants preferred Criminal Revision 

 Application No.529 of 2003 in the High Court of Gujarat 

 at Ahmedabad. The learned Single Judge by judgment 

 dated August 09, 2010, maintained conviction of the 

 appellants under Section 138 of Negotiable Instrument 

 Act, but set aside final order of sentence imposed upon 

 the appellants and remanded the matter to the learned 

 Magistrate for passing appropriate order of sentence and 

 6

 compensation, if any payable under Section 357 of the 

 Code, within three months, after giving to the parties 

 reasonable opportunity of being heard, which has given 

 rise to the instant appeal.

9. This Court has heard the learned counsel for the parties 

 and considered the documents forming part of the 

 appeal. 

10. Section 326 of the Code deals with the procedure to be 

 followed when any Magistrate after having heard and 

 recorded the whole or any part of the evidence in an 

 enquiry or a trial, ceases to exercise jurisdiction therein 

 and is succeeded by another Magistrate who exercises 

 such jurisdiction. Section 326 of the Code reads as 

 under :-

 "326. Conviction or commitment on evidence 

 partly recorded by one 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 exercise jurisdiction therein 

 and is succeeded by another Judge or 

 Magistrate who has and who exercises such 

 jurisdiction, the Judge or Magistrate so 

 succeeding may act on the evidence so recorded 

 7

 by his predecessor, or 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 witnesses 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." 

11. Section 326 is part of general provisions as to inquiries 

 and trials contained in Chapter XXIV of the Code. It is 

 one of the important principles of criminal law that the 

 Judge who hears and records the entire evidence must 

 give judgment. Section 326 is an exception to the rule 

 that only a person who has heard the evidence in the 

 case is competent to decide whether the accused is 

 innocent or guilty. The Section is intended to meet the 

 8

case of transfers of Magistrates from one place to another 

and to prevent the necessity of trying from the beginning 

all cases which may be part-heard at the time of such 

transfer. Section 326 empowers the succeeding 

Magistrate to pass sentence or to proceed with the case 

from the stage it was stopped by his preceding 

Magistrate. Under Section 326 (1), successor Magistrate 

can act on the evidence recorded by his predecessor 

either in whole or in part. If he is of the opinion that any 

further examination is required, he may recall that 

witness and examine him, but there is no need of re-trial. 

In fact Section 326 deals with part-heard cases, when 

one Magistrate who has partly heard the case is 

succeeded by another Magistrate either because the first 

Magistrate is transferred and is succeeded by another, or 

because the case is transferred from one Magistrate to 

another Magistrate. The rule mentioned in Section 326 

is that second Magistrate need not re-hear the whole case 

and he can start from the stage the first Magistrate left it. 

However, a bare perusal of sub Section (3) of Section 326 

 9

 makes it more than evident that sub Section (1) which 

 authorizes the Magistrate who succeeds the Magistrate 

 who had recorded the whole or any part of the evidence 

 in a trial to act on the evidence so recorded by his 

 predecessor, does not apply to summary trials. The 

 prohibition contained in sub Section (3) of Section 326 of 

 the Code is absolute and admits of no exception. Where 

 a Magistrate is transferred from one station to another, 

 his jurisdiction ceases in the former station when the 

 transfer takes effect. 

12. Provision for summary trials is made in chapter XXI of 

 the Code. Section 260 of the Code confers power upon 

 any Chief Judicial Magistrate or any Metropolitan 

 Magistrate or any Magistrate of the First Class specially 

 empowered in this behalf by the High Court to try in a 

 summary way all or any of the offences enumerated 

 therein. Section 262 lays down procedure for summary 

 trial and sub Section (1) thereof inter alia prescribes that 

 in summary trials the procedure specified in the Code for 

 10

 the trial of summons-case shall be followed subject to 

 condition that no sentence of imprisonment for a term 

 existing three months is passed in case of any conviction 

 under the chapter. 

13. The manner in which record in summary trials is to be 

 maintained is provided in Section 263 of the Code. 

 Section 264 mentions that in every case tried summarily 

 in which the accused does not plead guilty, the 

 Magistrate shall record the substance of evidence and a 

 judgment containing a brief statement of the reasons for 

 the finding. Thus the Magistrate is not expected to 

 record full evidence which he would have been, otherwise 

 required to record in a regular trial and his judgment 

 should also contain a brief statement of the reasons for 

 the finding and not elaborate reasons which otherwise he 

 would have been required to record in regular trials. 

14. The mandatory language in which Section 326 (3) is 

 couched, leaves no manner of doubt that when a case is 

 tried as a summary case a Magistrate, who succeeds the 

 11

Magistrate who had recorded the part or whole of the 

evidence, cannot act on the evidence so recorded by his 

predecessor. In summary proceedings, the successor 

Judge or Magistrate has no authority to proceed with the 

trial from a stage at which his predecessor has left it. 

The reason why the provisions of sub-Section (1) and (2) 

of Section 326 of the Code have not been made applicable 

to summary trials is that in summary trials only 

substance of evidence has to be recorded. The Court 

does not record the entire statement of witness. 

Therefore, the Judge or the Magistrate who has recorded 

such substance of evidence is in a position to appreciate 

the evidence led before him and the successor Judge or 

Magistrate cannot appreciate the evidence only on the 

basis of evidence recorded by his predecessor. Section 

326 (3) of the Code does not permit the Magistrate to act 

upon the substance of the evidence recorded by his 

predecessor, the obvious reason being that if succeeding 

Judge is permitted to rely upon the substance of the 

evidence recorded by his predecessor, there will be a 

 12

 serious prejudice to the accused and indeed, it would be 

 difficult for a succeeding Magistrate himself to decide the 

 matter effectively and to do substantial justice.

15. The High Court by the impugned judgment rejected the 

 contention regarding proceedings having been vitiated 

 under Section 461 of the Code, on the ground that 

 parties had submitted pursis dated August 3, 2001 and 

 in view of the provisions of Section 465 of the Code, the 

 alleged irregularity cannot be regarded as having 

 occasioned failure of justice and thus can be cured. The 

 reliance placed by the High Court, on the pursis 

 submitted by the appellants before the learned 

 Metropolitan Magistrate declaring that they had no 

 objection if matter was decided after taking into 

 consideration the evidence recorded by his predecessor-

 in-office is misconceived. It is well settled that no 

 amount of consent by the parties can confer jurisdiction 

 where there exists none, on a Court of law nor can they 

 13

 divest a Court of jurisdiction which it possesses under 

 the law. 

16. The cardinal principal of law in criminal trial is that it is 

 a right of an accused that his case should be decided by 

 a Judge who has heard the whole of it. It is so stated by 

 this Court in the decision in Payare Lal Vs. State of 

 Punjab, AIR 1962 SC 690 : (1962 (1) Crl LJ 688). This 

 principle was being rigorously applied prior to the 

 introduction of Section 350 in the Code of Criminal 

 Procedure, 1898. Section 326 of the new Code deals with 

 what was intended to be dealt with by Section 350 of the 

 old Code. 

 From the language of Section 326(3) of the Code, it is 

plain that the provisions of Section 326(1) and 326(2) of the 

new Code are not applicable to summary trial. Therefore, 

except in regard to those cases which fall within the ambit of 

Section 326 of the Code, the Magistrate cannot proceed with 

the trial placing reliance on the evidence recorded by his 

predecessor. He has got to try the case de novo. In this view 

 14

of the matter, the High Court should have ordered de novo 

trial. 

17. The next question that arises is as to from what stage the 

 learned Metropolitan Magistrate Ahmedabad, should 

 proceed with the trial de novo. As it has been seen that 

 Section 326 of the new Code is an exception to the 

 cardinal principle of trial of criminal cases, it is crystal 

 clear that if that principle is violated by a particular 

 Judge or a Magistrate, he would be doing something not 

 being empowered by law in that behalf. Therefore, 

 Section 461 of the new Code would be applicable. 

 Section 461 of the new Code narrates irregularities which 

 vitiate proceedings. The relevant provision is Clause (l). 

 It reads as follows:-

 "461. Irregularities which vitiate 

 proceedings:- If any Magistrate, not being 

 empowered by law in this behalf, does any of the 

 following things, namely;

 x x x x x

 (l) tries an offender;

 x x x x x

 15

 his proceedings shall be void."

A plain reading of this provision shows that the proceedings 

held by a Magistrate, to the extent that he is not empowered 

by law, would be void and void proceedings cannot be 

validated under Section 465 of the Code. This defect is not a 

mere irregularity and the conviction of the appellants cannot, 

even if sustainable on the evidence, be upheld under Section 

465 of the Code. In regard to Section 350 of the old Code, it 

was said by Privy Council in Pulukuri Kotayya Vs. Emperor, 

AIR 1947 P.C. 67 that "when a trial is conducted in a manner 

different from that prescribed by the Code, the trial is bad, and 

no question of curing an irregularity arises; but if the trial is 

conducted substantially in the manner prescribed, but some 

irregularity occurs in the course of such conduct, the 

irregularity can be cured under Section 537". 

18. This is not a case of irregularity but want of competency. 

Apart from Section 326 (1) and 326 (2) which are not 

applicable to the present case in view of Section 326 (3), the 

Code does not conceive of such a trial. Therefore, Section 465 

 16

of the Code has no application. It cannot be called in aid to 

make what was incompetent, competent. There has been no 

proper trial of the case and there should be one. 

19. For the foregoing reasons the appeal succeeds. The 

judgment dated August 09, 2010 rendered by the learned 

Single Judge of the High Court of Gujarat at Ahmedabad in 

Criminal Revision Application No. 529 of 2003 upholding 

conviction of the appellants for the offence under Section 138 

of the Act is hereby set aside. The matter is remanded to the 

learned Metropolitan Magistrate for retrial in accordance with 

law. The record shows that the appellant No.1 has resorted to 

dilatory tactics to delay the trial. The appellant No.1 is 

directed to remain present before the learned Metropolitan 

Magistrate when required without fail. If the appellant No. 1 

fails to remain present before the learned Metropolitan 

Magistrate, it would be open to the learned Metropolitan 

Magistrate to take necessary steps including issuance of non-

bailable warrant for securing his presence. Having regard to 

the facts of the case the learned Metropolitan Magistrate is 

 17

directed to complete the trial of the case as early as possible 

and preferably within five months from the date of receipt of 

the writ from this Court. Subject to above mentioned 

observations the appeal stands disposed of. 

 .............................J.

 (J.M. PANCHAL)

 .............................J.

 (H.L. GOKHALE)

NEW DELHI

SEPTEMBER 01, 2011. 

 18

19
Advertisements

About advocatemmmohan

ADVOCATE

Discussion

No comments yet.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: