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2011 (6) Supreme 173
SUPREME COURT OF INDIA
J.M. Panchal and H.L. Gokhale, JJ.
Nitinbhai Saevatilal Shah & Another — Appellant
versus
Manubhai Manjibhai Panchal & Another — Respondents
Criminal Appeal No. 1703 of 2011
(Arising out of SLP (Criminal) No. 723 of 2011)
Decided on : 1-9-2011
Criminal Procedure Code,1973-Section 326-Scope and ambit of- It is one of the important principles of criminal law that 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 case is competent to decide whether accused is innocent or guilty- The Section is intended to meet the 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 (Para 11)
Criminal Procedure Code,1973-Section 326-Applicability to summary Trials- A bare perusal of sub Section (3) of Section 326 shows that sub Section (1) which authorizes Magistrate who succeeds 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 Code is absolute and admits of no exception- 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- Section 326 (3) of the Code does not permit Magistrate to act upon the substance of the evidence recorded by his predecessor, obvious reason being that if succeeding Judge is permitted to rely upon the substance of evidence recorded by his predecessor, there will be a serious prejudice to the accused and it would be difficult for a succeeding Magistrate himself to decide the matter effectively and to do substantial justice (Paras 11, 14)
Facts of the Case :
Present Appeal has been filed against judgment passed by High Court in Revision Application by which conviction of appellants recorded by Magistrate, in Summary Case under Section 138 of Negotiable Instruments Act, 1881 and confirmed by Sessions Judge, was maintained but sentence imposed upon appellants for commission of said offence was set aside and matter was remanded to Magistrate for passing appropriate order with regard to sentence and compensation, if any under Section 357 of Cr. P.C.
Findings of the Court :
The Court held that in summary proceedings, successor Judge or Magistrate has no authority to proceed with the trial from a stage at which his predecessor has left it. Hence reliance placed by High Court, on pursis submitted by appellants before Magistrate declaring that they had no objection if matter was decided after taking into consideration evidence recorded by his predecessor- in-office was misconceived. Provisions of Section 326(1) and 326(2) of new Code are not applicable to summary trial. Except in regard to those cases which fall within the ambit of Section 326 of Code, Magistrate cannot proceed with trial placing reliance on evidence recorded by his predecessor. He has got to try the case de novo. High Court ought to have ordered de novo trial .Again this was not a case of irregularity but want of competency. Hence, Section 465 of Code held to have no application. Impugned judgment of High Court was set aside. Matter was remanded to Magistrate for retrial in accordance with law.
JUDGMENT
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 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 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 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 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.
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