[1.0] RULE. Shri Siddharth Dave, learned advocate waives service of notice of Rule on behalf of respondent No.1 and Ms. C.M. Shah, learned Additional Public Prosecutor waives service of notice of Rule on behalf of respondent No.2. [1.1] In the facts and circumstances of the case and considering the decision of the Hon'ble Supreme Court in the case of Nitinbhai Saevatilal Shah and Anr. v. Manubhai Manjibhai Panchal and Anr. reported in (2011)9 SCC 6638, as the matter is to be remanded to the learned Magistrate for de novo trial and to consider the same in accordance with law and on merits afresh, present application is taken up for final hearing today.
[2.0] Present Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") has been preferred by the applicant herein original accused to quash and set aside the impugned judgment and order of conviction and sentence dated 14.09.2004 passed by the learned Judicial Magistrate, First Class, Siddhpur in Criminal Case No.719 of 2001 by which the learned trial Court has convicted the applicant for the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act") as well as the impugned judgment and order dated 11.05.2012 passed by the learned Additional Sessions Judge, Patan in Criminal Appeal No.14 of 2004 by which the learned Appellate Court has dismissed the said Appeal preferred by the applicant herein confirming the judgment and order of conviction and sentence passed by the learned trial Court.
[3.0] Number of submissions on merits have been made by Shri Parikh, learned advocate appearing on behalf of the applicant inclusive of that as the proceedings under Section 138 of NI Act are to be tried as a summary trial and infact the evidence was recorded by the learned Magistrate who did not pass the final order and the subsequent transferee Magistrate has passed the final order relying upon the evidence recorded by the earlier Magistrate, in view of the decision of the Hon'ble Supreme Court in the case of Nitinbhai Saevatilal Shah and Anr. (Supra), the same is not permissible. It is submitted that as observed by the Hon'ble Supreme Court in the said decision, the subsequent transferee Magistrate was required to proceed further with the trial de novo and could not have relied upon the evidence recorded by the earlier Magistrate. Therefore, it is requested to remand the matter to the learned trial Court/Magistrate for de novo trial.
[4.0] Shri Siddharth Dave, learned advocate appearing on behalf of respondent No.1 does not dispute the above and has stated at the Bar under the instructions from his client that he has no objection if the matter is remanded to the learned Magistrate for de novo trial considering the decision of the Hon'ble Supreme Court in the case of Nitinbhai Saevatilal Shah and Anr. (Supra). He does not invite any further reasoned order while remanding the matter to the learned trial Court for de novo trial.
[5.0] In view of the above, this Court is not assigning any further reasons while remanding the matter to the learned Magistrate for de novo. However, suffice it to say that it is an admitted position that the evidence has been recorded by one Magistrate and the subsequent transferee Magistrate has disposed of the matter relying upon the evidence recorded by the earlier Magistrate which in view of the decision of the Hon'ble Supreme Court in the case of Nitinbhai Saevatilal Shah and Anr. (Supra) is not permissible.
[6.0] In view of the above and for the reasons stated above and on the aforesaid ground alone and without further expressing anything on merits in favour of either parties, impugned judgment and order of conviction and sentence dated 14.09.2004 passed by the learned Judicial Magistrate, First Class, Siddhpur in Criminal Case No.719 of 2001 by which the learned trial Court has convicted the applicant for the offence under Section 138 of the NI Act as well as the impugned judgment and order dated 11.05.2012 passed by the learned Additional Sessions Judge, Patan in Criminal Appeal No.14 of 2004 are hereby quashed and set aside and the matter is remanded to the learned Magistrate for de novo trial. The learned Magistrate to conclude the trial at the earliest but not later than nine months from the date of receipt of the present order. It is observed that all the defences and/or contentions which may be available to the respective parties are kept open, which may be considered by the learned Magistrate in accordance with law and on merits and on the basis of the evidence led for which this Court has not expressed anything on merits. Rule is made absolute accordingly to the aforesaid extent. Direct service is permitted.
[6.1] It is reported that pursuant to the earlier order passed by this Court, the applicant has deposited a sum of Rs.1,20,000/ which the applicant is permitted to withdraw as the judgment and order of conviction has been set aside by this Court and the matter is remanded to the learned trial Court and therefore, the same shall be paid to the applicant by Account payee cheque. Registry is directed to return the Record & Proceedings of the case to the learned trial Court along with the writ of this order. Consequently the bail bond also stands cancelled.
(M.R. Shah, J.) Menon