The criminal petition is directed against the order dated 9-11-2004 passed by the learned Additional Judicial Magistrate of First Class, Nizamabad, in Crl. M.P. No.5298 of 2004 in C.C. No.403 of 2001. The petitioners are A.3, A.6, A.8 and A.9 in the above case, which was filed by the first respondent/complainant under Section 138 of the Negotiable Instruments Act (for brevity `the NI Act').

2. Certain facts need be stated for brevity and better understanding of the matter: Originally the complaint was filed against A.1 to A.9. A.1 is the company, A.2 is its Managing Director, and A.3 to A.9 are the Directors thereof. Since A.4 and A.7 did the case against them was abated. The case against A.2 was split up as he had become scarce. Ultimately the case was tried as against A.1, A.3, A.5, A.6, A.8 and A.9. They were permitted to be represented by their Counsel under a special vakalath. Eventually after the closure of evidence arguments in the case were heard on 30-6-2003. The Counsel representing the accused under special vakalath was instructed to keep all the accused to be present in the Court on 4-8-2003 without fail to which date the case stood adjourned for judgment. On 4-8-2003 judgment was not pronounced since the accused were absent. On 7-8-2003 it appears that on account of the transfer of the Presiding Officer of the Court the case was adjourned to 11-8-2003. Even on 11-8-2003 the accused were absent. Notwithstanding the same, the judgment was pronounced. The accused were found guilty of the offence and accordingly they were convicted for the said offence. However, the Court adjourned the case to 18-8-2003. A.3, A.6, A.8 and A.9 were present but A.5 was not present as it was represented that he was sick. The case was adjourned to 29-8-2003 to hear the accused on the question of sentence. When A.5 was not present even on 29-8-2003 it was again adjourned to 15-9-2003. On that day since all the accused were absent, N.B.Ws. were issued against them. Subsequently, pursuant to the orders of the High Court of A.P., N.B.Ws. were re-called on 8-10-2004.

3. At that juncture the petitioners filed Crl.M.P. No.5298 of 2004 requesting the Court to conduct de novo trial. According to the petitioners, inasmuch as the trial in the case should be summary in nature as per Section 143 of the NI Act, under Section 326 of the Code of Criminal Procedure, 1973 (for brevity `the Code') the successor Judge cannot pass the conviction order against the petitioners. The stand taken by the first respondent inter alia in the counter was that summons procedure was followed in conducting the trial and witnesses were examined in detail, the question of ordering de novo trial did not arise. Under the impugned order, the learned Magistrate dismissed the petition. As aforesaid, the petitioners are now assailing the said order.

4. The contention of Sri Milind Gokhale, learned Counsel appearing for the petitioners, is two fold, firstly that since Section 326 of the code has no application to the summary trial cases, a de novo trial has to be conducted; and secondly that sentence is an integral part of the judgment and judgment is not complete till the sentence is passed and, therefore, the successor Magistrate cannot pass the sentence in the case wherein his procedure pronounced the judgment.

5. Sri M.S. Ramachandra Rao, learned Counsel appearing for the first respondent, on the other hand, represents that since summons procedure has been followed sub-section (3) of Section 326 has no application and since the judgment was pronounced in open Court and was signed and dated, the whole judgment could not be vitiated and, therefore, either way it is not at all a case where de novo trial shall have to be conducted.

6. In view of the rival contentions, the following questions are germane for consideration in the context :

(1) Whether sub-section (1) of Section 326 has no application to the present case and therefore it requires a de novo trial to be conducted