{"id":142289,"date":"2011-09-01T00:00:00","date_gmt":"2011-08-31T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/nitinbhai-saevantilal-shah-anr-vs-manubhai-manjibhai-panchal-anr-on-1-september-2011"},"modified":"2017-04-03T03:11:22","modified_gmt":"2017-04-02T21:41:22","slug":"nitinbhai-saevantilal-shah-anr-vs-manubhai-manjibhai-panchal-anr-on-1-september-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/nitinbhai-saevantilal-shah-anr-vs-manubhai-manjibhai-panchal-anr-on-1-september-2011","title":{"rendered":"Nitinbhai Saevantilal Shah & Anr vs Manubhai Manjibhai Panchal & Anr on 1 September, 2011"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Nitinbhai Saevantilal Shah & Anr vs Manubhai Manjibhai Panchal & Anr on 1 September, 2011<\/div>\n
Author: J Panchal<\/div>\n
Bench: J.M. Panchal, H.L. Gokhale<\/div>\n
                                                            Reportable\n\n\n               IN THE SUPREME COURT OF INDIA\n\n\n              CRIMINAL APPELLATE JURISDICTION\n\n\n        CRIMINAL APPEAL NO. 1703  OF 2011\n\n         (Arising out of SLP (Criminal) No. 723 of 2011)\n\n\n\n\nNitinbhai Saevatilal Shah & Another              ... Appellant\n\n\n\n                             Versus\n\n\n\nManubhai Manjibhai Panchal & Another             ... Respondents\n\n\n\n\n\n                         J U D G M E N T\n<\/pre>\n
J.M. PANCHAL, J.\n<\/p>\n
       Leave Granted.\n<\/p>\n
2.    This appeal by grant of special leave, is directed against <\/p>\n
      judgment dated August 9, 2010, rendered by the learned <\/p>\n
      Single Judge of   High Court of Gujarat at Ahmedabad in <\/p>\n
      Criminal Revision Application No. 529 of 2003, by which <\/p>\n
                                                                1<\/span><\/p>\n
      the  conviction   of the   appellants  recorded by the   learned <\/p>\n
      Metropolitan   Magistrate,   Ahmedabad   in   Summary   Case <\/p>\n
      No.   2785   of   1998   under   Section   138   of   Negotiable <\/p>\n
      Instruments   Act,   1881   and   confirmed   by   the   learned <\/p>\n
      Additional   City   Sessions   Judge,   Court   No.   13, <\/p>\n
      Ahmedabad   is   maintained   but   the   sentence   imposed <\/p>\n
      upon the appellants for commission of said offence is set <\/p>\n
      aside and  matter  is remanded to  the  learned Magistrate <\/p>\n
      for passing appropriate order with regard to sentence and <\/p>\n
      compensation, if any under Section 357 of Cr. P.C. within <\/p>\n
      three   months,   after   giving   the   parties   reasonable <\/p>\n
      opportunity of being heard.\n<\/p>\n
3.    The respondent No.1 herein is original complainant.   He <\/p>\n
      was doing business in the name of Navkar Steel Pvt. Ltd.\n<\/p>\n
      The   Complainant   is   known   to   the   appellant   No.1.     The <\/p>\n
      appellant No.1 is the Director of appellant No.2 which is <\/p>\n
      a   private   limited   company.     It   is   the   case   of   the <\/p>\n
      complainant that the appellant No.1 had borrowed hand <\/p>\n
      loan   from   him   and   in   order   to   pay   the   legal   dues,   the <\/p>\n
                                                                             2<\/span><\/p>\n
appellant   No.1   had   given   a   cheque   dated   October   13, <\/p>\n
1998 for  the  sum of Rs.11,23,000\/- drawn  on the State <\/p>\n
Bank of India.   The cheque was signed by the appellant <\/p>\n
No.1   on   behalf   of   the   appellant   No.2.     The   complainant <\/p>\n
presented the cheque for realization in the Central Bank <\/p>\n
of India.   The cheque was dishonoured and sent back to <\/p>\n
the complainant with a memorandum dated October 15, <\/p>\n
1998   mentioning   that   the   cheque   was   dishonoured <\/p>\n
because   of   insufficiency   of   funds.     Thereupon,   the <\/p>\n
complainant   served   a   demand   notice   dated   October   28, <\/p>\n
1998   which   was   returned   unserved   as   unclaimed   on <\/p>\n
November 5, 1998.   Therefore another notice was served <\/p>\n
by post under Postal Certificate.   The appellants failed to <\/p>\n
pay the  amount mentioned in the notice within 15 days <\/p>\n
from   the   date   of   receipt   of   notice.     Therefore,   the <\/p>\n
complainant   filed   complaint   in   the   Court   of   learned <\/p>\n
Metropolitan   Magistrate,   Court   No.2,   Ahmedabad   on <\/p>\n
December 15, 1998 and prayed to convict the appellants  <\/p>\n
under   Section   138   of   the   Act.     On   the   basis   of   the <\/p>\n
complaint,   Summary   Case   No.   2785   of   1998   was <\/p>\n
                                                                   3<\/span><\/p>\n
      registered   and   after   recording   verification,   the   learned <\/p>\n
      Magistrate had issued process.\n<\/p>\n
4.    The   complainant   examined   himself   and   his   witnesses <\/p>\n
      and   also   produced   documentary   evidence   in   support   of <\/p>\n
      his case set up in the complaint.  The appellants did not <\/p>\n
      lead any defence evidence.   However, the appellant No.1 <\/p>\n
      in his statement recorded under Section 313 of the Code <\/p>\n
      stated   that   his   signature   was   obtained   on   the   blank <\/p>\n
      paper   by   kidnapping   him   and   writing   was   written   on   it <\/p>\n
      and   that   false   complaint   was   lodged   by   misusing   the <\/p>\n
      signed blank cheque.\n<\/p>\n
5.      After   the   evidence   was   recorded   by   the   learned <\/p>\n
      Metropolitan   Magistrate   as   stated   above,   he   came   to   be <\/p>\n
      transferred and therefore, ceased to exercise jurisdiction <\/p>\n
      in   the   case.     He   was   succeeded   by   another   learned <\/p>\n
      Metropolitan Magistrate who had and who exercised such <\/p>\n
      jurisdiction.     On   August   03,   2001,   a   pursis   was   filed <\/p>\n
      before   the   learned   Metropolitan   Magistrate   by   the <\/p>\n
      appellants   as   well   as   the   original   complainant   i.e.   the <\/p>\n
                                                                         4<\/span><\/p>\n
      respondent No.1 herein, declaring that the parties had no <\/p>\n
      objection   to   proceed   with   the   matter   on   the   basis   of <\/p>\n
      evidence recorded by predecessor in office of the learned  <\/p>\n
      Metropolitan   Magistrate   in   terms   of   Section   326   of   the <\/p>\n
      Code.     On   the   basis   of   said   pursis   the   learned <\/p>\n
      Metropolitan   Magistrate   considered   the   evidence   led   by <\/p>\n
      the   complainant   and   heard   the   learned   counsel   for   the <\/p>\n
      parties.\n<\/p>\n
6.    The   learned   Metropolitan   Magistrate   by   judgment   dated <\/p>\n
      February 13, 2003, delivered in Summary Case No. 2785 <\/p>\n
      of 1998, convicted both the appellants under Section 138 <\/p>\n
      of   the   Act   and   sentenced   each   of   them   to   suffer   simple <\/p>\n
      imprisonment   for   three   months   with   fine   of   Rs.3,000\/-\n<\/p>\n
      i\/d simple imprisonment for 15 days.\n<\/p>\n
7.    Feeling   aggrieved,   the   appellants   preferred   Criminal <\/p>\n
      Appeal   No.19   of   2003   in   the   Court   of   the   learned <\/p>\n
      Additional   City   Sessions   Judge   at   Ahmedabad.     The <\/p>\n
      learned   Judge   found   that   conviction   of   the   appellants <\/p>\n
      recorded under Section 138 of the Act was perfectly just <\/p>\n
                                                                            5<\/span><\/p>\n
      but  noticed  that  the  appellant  No. 2  is a  private   limited <\/p>\n
      company and therefore, could not have been sentenced to <\/p>\n
      simple   imprisonment   for   three   months.     Therefore,   the <\/p>\n
      learned   Additional   City   Sessions   Judge,   Court   No.13, <\/p>\n
      Ahmedabad   by   judgment   dated   October   16,   2003 <\/p>\n
      dismissed   the   appeal   but   set   aside   sentence   of   simple <\/p>\n
      imprisonment   of   three   months   imposed   upon   the <\/p>\n
      appellant No.2 and maintained the full sentence imposed <\/p>\n
      upon   appellant   No.1   as   well   as   sentence   of   fine   of <\/p>\n
      Rs.3,000\/- imposed upon the appellant No.2.\n<\/p>\n
8.    Dissatisfied   with   the   judgment   of   the   First   Appellate <\/p>\n
      Court,   the   appellants   preferred   Criminal   Revision <\/p>\n
      Application No.529 of 2003 in the High Court of Gujarat <\/p>\n
      at   Ahmedabad.     The   learned   Single   Judge   by   judgment <\/p>\n
      dated   August   09,   2010,   maintained   conviction   of   the <\/p>\n
      appellants   under   Section   138   of   Negotiable   Instrument <\/p>\n
      Act,   but   set   aside   final   order   of   sentence   imposed  upon <\/p>\n
      the   appellants   and   remanded   the   matter   to   the   learned <\/p>\n
      Magistrate for passing appropriate order of sentence and <\/p>\n
                                                                          6<\/span><\/p>\n
       compensation,   if   any   payable   under   Section   357   of   the <\/p>\n
       Code,   within   three   months,   after   giving   to   the   parties <\/p>\n
       reasonable   opportunity   of   being   heard,   which   has   given <\/p>\n
       rise to the instant appeal.\n<\/p>\n
9.     This Court has heard the learned counsel for the parties <\/p>\n
       and   considered   the   documents   forming   part   of   the <\/p>\n
       appeal.\n<\/p>\n
10.    Section   326   of   the   Code   deals   with   the   procedure   to   be <\/p>\n
       followed   when   any   Magistrate   after   having   heard   and <\/p>\n
       recorded   the   whole   or   any   part   of   the   evidence   in   an  <\/p>\n
       enquiry or  a trial, ceases to  exercise jurisdiction  therein <\/p>\n
       and   is   succeeded   by   another   Magistrate   who   exercises <\/p>\n
       such   jurisdiction.     Section   326   of   the   Code   reads   as <\/p>\n
       under :-\n<\/p>\n
             “326. Conviction or commitment on evidence <\/p>\n
             partly recorded by one Magistrate and partly <\/p>\n
             by   another:-            (1)     Whenever   any   Judge   or <\/p>\n
             Magistrate   after   having   heard   and   recorded   the <\/p>\n
             whole  or  any  part of  the  evidence  in an  inquiry <\/p>\n
             or a trial, ceases to exercise jurisdiction therein <\/p>\n
             and   is   succeeded   by   another   Judge   or <\/p>\n
             Magistrate   who   has   and   who   exercises   such <\/p>\n
             jurisdiction,   the   Judge   or   Magistrate   so <\/p>\n
             succeeding may act on the evidence so recorded <\/p>\n
                                                                               7<\/span><\/p>\n
             by   his   predecessor,   or   partly   recorded   by   his <\/p>\n
             predecessor and partly recorded by himself :<\/p>\n<\/blockquote>\n
                            Provided   that   if   the   succeeding <\/p>\n
             Judge   or   Magistrate   is   of   opinion   that   further <\/p>\n
             examination   of   any   of   the   witnesses   whose <\/p>\n
             evidence has already been recorded is necessary <\/p>\n
             in   the   interests   of   justice,   he   may   re-summon <\/p>\n
             any   such   witness,   and   after   such   further <\/p>\n
             examination,           cross-examination           and         re-<\/p>\n
             examination,   if   any,   as   he   may   permit,   the <\/p>\n
             witness shall be discharged.\n<\/p><\/blockquote>\n
<\/blockquote>\n
                            (2)     When   a   case   is   transferred <\/p>\n
             under   the   provisions   of   this   Code   from   one <\/p>\n
             Judge  to another   Judge  or   from  one   Magistrate <\/p>\n
             to   another   Magistrate,   the   former   shall   be <\/p>\n
             deemed to cease to exercise jurisdiction therein, <\/p>\n
             and   to   be   succeeded   by   the   latter,   within   the <\/p>\n
             meaning of sub-section (1).\n<\/p><\/blockquote>\n
<\/blockquote>\n
                            (3)             Nothing   in   this   section <\/p>\n
             applies   to   summary   trials   or   to   cases   in   which <\/p>\n
             proceedings have been stayed under section 322 <\/p>\n
             or in which proceedings have been submitted to <\/p>\n
             a superior Magistrate under section 325.” <\/p>\n<\/blockquote>\n
11.    Section   326   is   part   of   general   provisions   as   to   inquiries <\/p>\n
       and trials contained in Chapter XXIV of the Code.     It is  <\/p>\n
       one   of   the   important   principles   of   criminal   law   that   the <\/p>\n
       Judge   who   hears   and   records   the   entire   evidence   must <\/p>\n
       give   judgment.     Section   326   is   an   exception   to   the   rule <\/p>\n
       that   only   a   person   who   has   heard   the   evidence   in   the <\/p>\n
       case   is   competent   to   decide   whether   the   accused   is <\/p>\n
       innocent   or  guilty.    The  Section   is  intended  to  meet  the <\/p>\n
                                                                                   8<\/span><\/p>\n
case of transfers of Magistrates from one place to another <\/p>\n
and to prevent the necessity of trying from the beginning <\/p>\n
all   cases   which   may   be   part-heard   at   the   time   of   such <\/p>\n
transfer.        Section   326   empowers   the   succeeding <\/p>\n
Magistrate  to  pass sentence or  to  proceed  with  the  case <\/p>\n
from   the   stage   it   was   stopped   by   his   preceding <\/p>\n
Magistrate.   Under Section 326 (1), successor Magistrate <\/p>\n
can   act   on   the   evidence   recorded   by   his   predecessor <\/p>\n
either in whole or in part.  If he is of the opinion that any <\/p>\n
further   examination   is   required,   he   may   recall   that <\/p>\n
witness and examine him, but there is no need of re-trial.\n<\/p>\n
In   fact   Section   326   deals   with   part-heard   cases,   when <\/p>\n
one   Magistrate   who   has   partly   heard   the   case   is <\/p>\n
succeeded by another Magistrate either because the first <\/p>\n
Magistrate is transferred and is succeeded by another, or <\/p>\n
because   the   case   is   transferred   from   one   Magistrate   to <\/p>\n
another   Magistrate.   The   rule   mentioned  in   Section  326 <\/p>\n
is that second Magistrate need not re-hear the whole case <\/p>\n
and he can start from the stage the first Magistrate left it.\n<\/p>\n
However, a bare perusal of sub Section (3) of Section 326 <\/p>\n
                                                                     9<\/span><\/p>\n
       makes   it   more   than   evident   that   sub   Section   (1)   which <\/p>\n
       authorizes   the   Magistrate   who   succeeds   the   Magistrate <\/p>\n
       who had recorded the whole or any part of the evidence <\/p>\n
       in   a   trial   to   act   on   the   evidence   so   recorded   by   his <\/p>\n
       predecessor,   does   not   apply   to   summary   trials.     The <\/p>\n
       prohibition contained in sub Section (3) of Section 326 of <\/p>\n
       the Code is absolute and admits of no exception.   Where  <\/p>\n
       a   Magistrate   is   transferred   from   one   station   to   another, <\/p>\n
       his   jurisdiction   ceases   in   the   former   station   when   the <\/p>\n
       transfer takes effect.\n<\/p>\n
12.    Provision   for   summary   trials   is   made   in   chapter   XXI   of <\/p>\n
       the  Code.    Section   260  of  the   Code   confers  power   upon <\/p>\n
       any   Chief   Judicial   Magistrate   or   any   Metropolitan <\/p>\n
       Magistrate  or  any Magistrate  of  the  First  Class specially <\/p>\n
       empowered   in   this   behalf   by   the   High   Court   to   try   in   a <\/p>\n
       summary   way   all   or   any   of   the   offences   enumerated <\/p>\n
       therein.   Section  262 lays down  procedure for  summary <\/p>\n
       trial and sub Section (1) thereof inter alia prescribes that <\/p>\n
       in summary trials the procedure specified in the Code for <\/p>\n
                                                                               10<\/span><\/p>\n
       the   trial   of   summons-case   shall   be   followed   subject   to <\/p>\n
       condition   that   no   sentence   of   imprisonment   for   a   term <\/p>\n
       exceeding   three   months   is   passed   in   case   of   any <\/p>\n
       conviction under the chapter.\n<\/p>\n
13.    The   manner   in   which   record   in   summary   trials   is   to   be <\/p>\n
       maintained   is   provided   in   Section   263   of   the   Code.\n<\/p>\n
       Section 264 mentions that in every case tried summarily <\/p>\n
       in   which   the   accused   does   not   plead   guilty,   the <\/p>\n
       Magistrate  shall  record the  substance  of evidence and a <\/p>\n
       judgment containing a brief statement of the reasons for <\/p>\n
       the   finding.     Thus   the   Magistrate   is   not   expected   to <\/p>\n
       record full evidence which he would have been, otherwise <\/p>\n
       required   to   record   in   a   regular   trial   and   his   judgment <\/p>\n
       should  also  contain  a  brief statement  of  the  reasons  for <\/p>\n
       the finding and not elaborate reasons which otherwise he <\/p>\n
       would have been required to record in regular trials.\n<\/p>\n
14.    The   mandatory   language   in   which   Section   326   (3)   is <\/p>\n
       couched, leaves no manner of doubt that when a case is <\/p>\n
       tried as a summary case a Magistrate, who succeeds the <\/p>\n
                                                                            11<\/span><\/p>\n
Magistrate   who   had   recorded   the   part   or   whole   of   the <\/p>\n
evidence, cannot  act on the evidence so recorded by his <\/p>\n
predecessor.   In   summary   proceedings,   the   successor <\/p>\n
Judge or Magistrate has no authority to proceed with the <\/p>\n
trial   from   a   stage   at   which   his   predecessor   has   left   it.\n<\/p>\n
The reason why the provisions of sub-Section (1) and (2) <\/p>\n
of Section 326 of the Code have not been made applicable <\/p>\n
to   summary   trials   is   that   in   summary   trials   only <\/p>\n
substance   of   evidence   has   to   be   recorded.     The   Court <\/p>\n
does   not   record   the   entire   statement   of   witness.\n<\/p>\n
Therefore, the Judge or the Magistrate who has recorded <\/p>\n
such substance of evidence is in a position to appreciate <\/p>\n
the  evidence led before him  and the successor  Judge  or <\/p>\n
Magistrate   cannot   appreciate   the   evidence   only   on   the <\/p>\n
basis   of   evidence   recorded   by   his   predecessor.     Section <\/p>\n
326 (3) of the Code does not permit the Magistrate to act <\/p>\n
upon   the   substance   of   the   evidence   recorded   by   his <\/p>\n
predecessor, the obvious reason being that if succeeding <\/p>\n
Judge   is   permitted   to   rely   upon   the   substance   of   the <\/p>\n
evidence   recorded   by   his   predecessor,   there   will   be   a <\/p>\n
                                                                        12<\/span><\/p>\n
       serious prejudice to the accused and indeed, it would be <\/p>\n
       difficult for a succeeding Magistrate himself to decide the  <\/p>\n
       matter effectively and to do substantial justice.\n<\/p>\n
15.    The   High   Court   by   the   impugned   judgment   rejected   the <\/p>\n
       contention   regarding   proceedings   having   been   vitiated <\/p>\n
       under   Section   461   of   the   Code,   on   the   ground   that <\/p>\n
       parties had submitted pursis dated August 3, 2001 and <\/p>\n
       in view of the provisions of Section 465 of the Code, the <\/p>\n
       alleged   irregularity   cannot   be   regarded   as   having <\/p>\n
       occasioned failure of justice and thus can be cured.   The <\/p>\n
       reliance   placed   by   the   High   Court,   on   the   pursis <\/p>\n
       submitted   by   the   appellants   before   the   learned <\/p>\n
       Metropolitan   Magistrate   declaring   that   they   had   no <\/p>\n
       objection   if   matter   was   decided   after   taking   into <\/p>\n
       consideration   the   evidence   recorded   by   his   predecessor-\n<\/p>\n
       in-office   is   misconceived.     It   is   well   settled   that   no <\/p>\n
       amount of consent by the parties can confer jurisdiction <\/p>\n
       where there exists none, on a Court of law nor can they <\/p>\n
                                                                          13<\/span><\/p>\n
       divest   a   Court   of   jurisdiction   which   it   possesses   under <\/p>\n
       the law.\n<\/p>\n
16.     The cardinal principal of law in criminal trial is that it is <\/p>\n
       a right of an accused that his case should be decided by <\/p>\n
       a Judge who has heard the whole of it.  It is so stated by <\/p>\n
       this   Court   in   the   decision   in  Payare   Lal  Vs.  State   of <\/p>\n
       Punjab, AIR 1962 SC 690 : (1962 (1) Crl LJ 688).  This <\/p>\n
       principle   was   being   rigorously   applied   prior   to   the <\/p>\n
       introduction   of   Section   350   in   the   Code   of   Criminal <\/p>\n
       Procedure, 1898.  Section 326 of the new Code deals with <\/p>\n
       what was intended to be dealt with by Section 350 of the <\/p>\n
       old Code.\n<\/p>\n
       From   the   language   of   Section   326(3)   of   the   Code,   it   is <\/p>\n
plain   that   the   provisions   of   Section   326(1)   and   326(2)   of   the  <\/p>\n
new   Code   are   not   applicable   to   summary   trial.         Therefore, <\/p>\n
except in regard to those cases which fall within the ambit of <\/p>\n
Section   326   of   the   Code,   the   Magistrate   cannot   proceed  with <\/p>\n
the   trial   placing   reliance   on   the   evidence   recorded   by   his <\/p>\n
predecessor.  He has got to try the case de novo.   In this view <\/p>\n
                                                                              14<\/span><\/p>\n
of   the   matter,   the   High   Court   should   have   ordered   de   novo <\/p>\n
trial.\n<\/p>\n
17.    The next question that arises is as to from what stage the <\/p>\n
       learned   Metropolitan   Magistrate   Ahmedabad,   should <\/p>\n
       proceed with the trial de novo.   As it has been seen that <\/p>\n
       Section   326   of   the   new   Code   is   an   exception   to   the <\/p>\n
       cardinal   principle   of   trial   of   criminal   cases,   it   is   crystal  <\/p>\n
       clear   that   if   that   principle   is   violated   by   a   particular <\/p>\n
       Judge or a Magistrate, he would be doing something not <\/p>\n
       being   empowered   by   law   in   that   behalf.     Therefore, <\/p>\n
       Section   461   of   the   new   Code   would   be   applicable.\n<\/p>\n
       Section 461 of the new Code narrates irregularities which <\/p>\n
       vitiate  proceedings.   The  relevant provision is Clause (l).\n<\/p>\n
       It reads as follows:-\n<\/p>\n
               “461. Irregularities which   vitiate   proceedings:- <\/p>\n
            If any Magistrate, not being empowered by law in <\/p>\n
            this   behalf,   does   any   of   the   following   things, <\/p>\n
            namely;\n<\/p><\/blockquote>\n
<\/blockquote>\n
                      x     x      x      x       x\n\n\n            (l)  tries an offender;\n\n\n                      x     x      x      x       x\n\n\n\n\n\n                                                                                  15<\/span>\n\n\n          his proceedings shall be void.\"\n\n\n\n\n<\/pre>\n
A   plain   reading   of   this   provision   shows   that   the   proceedings <\/p>\n
held by a Magistrate, to the extent that he is not empowered <\/p>\n
by   law,   would   be   void   and   void   proceedings   cannot   be <\/p>\n
validated under Section 465 of the Code.   This defect is not a <\/p>\n
mere irregularity and the conviction of the appellants cannot, <\/p>\n
even if sustainable  on  the evidence, be upheld under Section <\/p>\n
465 of the Code.   In regard to Section 350 of the old Code, it  <\/p>\n
was said by Privy Council in Pulukuri Kotayya Vs.  Emperor, <\/p>\n
AIR 1947 P.C. 67 that “when a trial is conducted in a manner <\/p>\n
different from that prescribed by the Code, the trial is bad, and <\/p>\n
no question of curing an irregularity arises; but if the trial is <\/p>\n
conducted   substantially   in   the   manner   prescribed,   but   some <\/p>\n
irregularity   occurs   in   the   course   of   such   conduct,   the <\/p>\n
irregularity can be cured under Section 537”.  <\/p>\n<\/blockquote>\n
18. This is not a case of irregularity but want of competency.\n<\/p>\n
Apart   from   Section   326   (1)   and   326   (2)   which   are   not  <\/p>\n
applicable  to   the   present  case  in   view  of   Section   326   (3),   the  <\/p>\n
Code does not conceive of such a trial.  Therefore, Section 465  <\/p>\n
                                                                             16<\/span><\/p>\n
of the  Code has no application.   It cannot  be called in aid to <\/p>\n
make  what  was  incompetent, competent.   There has been no <\/p>\n
proper trial of the case and there should be one.\n<\/p>\n
19.     For   the   foregoing   reasons   the   appeal   succeeds.     The <\/p>\n
judgment   dated   August   09,   2010   rendered   by   the   learned <\/p>\n
Single   Judge   of   the   High   Court   of   Gujarat   at   Ahmedabad   in <\/p>\n
Criminal   Revision   Application   No.   529   of   2003   upholding <\/p>\n
conviction of the appellants for the offence under Section 138  <\/p>\n
of the Act is hereby set aside.   The matter is remanded to the <\/p>\n
learned Metropolitan Magistrate for retrial in accordance with <\/p>\n
law.  The record shows that the appellant No.1 has resorted to <\/p>\n
dilatory   tactics   to   delay   the   trial.     The   appellant   No.1   is <\/p>\n
directed   to   remain   present   before   the   learned   Metropolitan <\/p>\n
Magistrate when required without fail.   If the appellant No. 1 <\/p>\n
fails   to   remain   present   before   the   learned   Metropolitan <\/p>\n
Magistrate,   it   would   be   open   to   the   learned   Metropolitan <\/p>\n
Magistrate to take necessary steps including issuance of non-\n<\/p>\n
bailable  warrant  for  securing his presence.    Having regard to <\/p>\n
the   facts   of   the   case   the   learned   Metropolitan   Magistrate   is <\/p>\n
                                                                          17<\/span><\/p>\n
directed to  complete  the  trial  of  the  case as early as possible <\/p>\n
and   preferably  within  five  months   from   the  date   of   receipt   of  <\/p>\n
the   writ   from   this   Court.     Subject   to   above   mentioned <\/p>\n
observations the appeal stands disposed of.\n<\/p>\n
                                                    ………………………..J.\n<\/p>\n
                                                              (J.M. PANCHAL)<\/p>\n
                                                    ………………………..J.\n<\/p>\n
                                                             (H.L. GOKHALE)<\/p>\n
NEW DELHI<\/p>\n
SEPTEMBER 01, 2011.\n<\/p>\n
                                                                          18<\/span><\/p>\n
19<\/span><\/p>\n
****<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Nitinbhai Saevantilal Shah & Anr vs Manubhai Manjibhai Panchal & Anr on 1 September, 2011 Author: J Panchal Bench: J.M. Panchal, H.L. Gokhale 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-142289","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nNitinbhai Saevantilal Shah & Anr vs Manubhai Manjibhai Panchal & Anr on 1 September, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/nitinbhai-saevantilal-shah-anr-vs-manubhai-manjibhai-panchal-anr-on-1-september-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Nitinbhai Saevantilal Shah & Anr vs Manubhai Manjibhai Panchal & Anr on 1 September, 2011 - 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