By filing this appeal under section 378 of the Code of Criminal Procedure, 1973, the appellant complainant has challenged the judgment and order of acquittal passed by the learned Metropolitan Magistrate (Negotiable Instruments Act), Court No.1, Ahmedabad on 8.9.2010 in Criminal Case No. 3700 of 2008 acquitting the respondent accused for the offence under section 138 of the Negotiable Instruments Act, 1881 (for short “the Act”). 2. According to the complainant, the accused obtained Rs.50,000/- as hand loan and executed a Promissory Note and agreed to repay the same with interest. However, the accused failed to pay the amount of Rs.57,773/- despite repeated demands. Therefore, as he informed the accused to take legal action, the accused gave cheque No.790060 dated 1.12.2005 drawn on Dena Bank, Behrampura Branch, Ahmedabad, but the cheque returned unpaid on account of insufficient funds. Therefore, he served notice dated 9.2.2005 demanding the amount of unpaid cheque; but he did not pay the unpaid cheque amount. Therefore, complaint under section 138 of the Act was filed.
3. The trial Court issued summons and the accused appeared before the trial Court and pleaded not guilty. Therefore, the prosecution adduced evidence. On completion of recording of evidence, further statement of the accused under section 313 of the Code of Criminal Procedure, 1973 was recorded. After hearing learned advocates for the parties, the trial Court by impugned judgment acquitted the accused. Being aggrieved by the said decision, present appeal has been filed by the complainant.
4. I have heard learned advocate Mr. Brahmbhatt for the appellant and learned advocate Mr.Limbachiya for learned advocate Mr. Amin for the respondent accused and learned APP Miss Shah for the respondent State. I have also perused record and proceedings of the trial Court.
5. Learned advocate Mr. Brahmbhatt submitted that under section 264 of the Code of Criminal Procedure, 1973, Magistrate is required to record substance of evidence and a judgment giving brief statement of the reasons for the finding. However, in the instant case, the judgment was delivered by learned Magistrate, who did not record the evidence and therefore, the trial is void and hence, the impugned judgment is required to be set aside and the matter is required to be remanded to the trial Court for afresh trial. He relied upon decision of Nitinbhai Sevantilal Shah and another Vs. Manubhai Manjibhai Panchal and another reported in (2011) 9 SCC 638.
6. Learned advocate Mr. Limbachiya submitted that it is not in dispute that part of the evidence was recorded by a Magistrate, who did not deliver the judgment and the judgment was delivered by his successor. He also submitted that considering the fact that the matter is very old, if the matter is remanded to the trial Court, some time limit may be fixed to dispose of the case.
7. It appears from the record and proceedings of the trial Court that plea of the accused was recorded by learned Metropolitan Magistrate, Court No.4 and part of the evidence was also recorded by him. It also appears that the case was registered as Criminal Case No.886 of 2005 in learned Metropolitan Magistrate, Court No.4. Thereafter, it appears that the case came to be transferred to Metropolitan Magistrate, (Negotiable Instruments Act) Court No.1, Ahmedabad and it was registered as Criminal Case No.3700 of 2008 and remaining part of the evidence was recorded by the said Magistrate and judgment was delivered by him.
8. In view of this, it clearly emerges that earlier the complaint was registered in the Court of Metropolitan Magistrate, Court No.4 and thereafter, it was transferred to the Court of Metropolitan Magistrate, (Negotiable Instruments Act) Court No.1, Ahmedabad. It is not in dispute that part of the evidence was recorded by learned Metropolitan Magistrate, Court No.4, but thereafter, the case came to be transferred to another Court and the Magistrate before whom the case was transferred, recorded remaining part of the evidence and concluded the trial by delivering the judgment. Therefore, it emerges that the Court, who delivered the judgment, did not record the entire evidence. In the decision of Nitinbhai Sevantilal Shah (supra), the Hon'ble Supreme Court has observed as under:
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 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.
13. 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.
14. However, a bare perusal of sub Section (3) of Section 326 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.”
9. After making the above observation, the Hon'ble Supreme Court held that evidence recorded by predecessor and conviction recorded by successor Magistrate in a summary trial conducted for dishonour of cheque under section 138 of the Act was bad in law and therefore, set aside the order. In the present case also, the part of the evidence was recorded by a Magistrate and thereafter, the case was transferred to another Court and the successor Magistrate recorded remaining part of the evidence and delivered the judgment. Therefore, in view of this decision, the impugned judgment is bad in law and is required to be set aside.
10. In the result, the appeal succeeds. The judgment and order of acquittal passed by the learned Metropolitan Magistrate (Negotiable Instruments Act), Court No.1, Ahmedabad on 8.9.2010 in Criminal Case No. 3700 of 2008 is set aside. The matter is remanded to the trial Court to decide the same afresh in accordance with law and after giving opportunity of hearing to the parties.
11. The parties are directed to appear before the trial Court on 1.3.2012 and the trial Court shall proceed with the matter afresh in accordance with law.
12. In view of the fact that the case is of the year 2005, it is expected that Magistrate trying the case gives priority to the matter and shall dispose of the same as expeditiously as possible.
shekhar* (BANKIM N.MEHTA, J.)