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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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the trial of summons-case shall be followed subject to
condition that no sentence of imprisonment for a term
exceeding 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
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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
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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
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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
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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
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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
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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
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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.
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