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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