VISHNUBHAI HARGOVANDAS PATEL Vs. BALDEVBHAI RAMJIBHAI PATEL

JUDGEMENT

(1.) By filing this appeal under Section 378 of Criminal Procedure Code, 1973, the appellant original complainant has challenged the judgment and order of acquittal passed by learned Metropolitan Magistrate (Negotiable Instrument Act, Court No. 2), Ahmedabad on 7.8.2009 acquitting the respondent accused for the offence under section 138 of the Negotiable Instrument Act.

(2.) According to the complainant, he is the owner of School Building of Ranjan High School in Bapunagar, Ahmedabad and the accused is engaged in the activities of Ranjan High School. Therefore, the accused came into his contact and took hand loan of Rs. 3,57,000 in last two years but on account of relation, no writing was obtained. On making demand of return of the amount, the accused gave cheque No. 481551 dated 25.8.1998 for Rs. 2,97,000 and cheque No. 481552 dated 25.10.1998 for Rs. 60,000 drawn on Gandhinagar Nagrik Co-operative Bank, Sachivalaya Branch, Gandhinagar. On presenting the cheques in the Bank, both the cheques returned unpaid on account of insufficient fund and he was informed by the Bank on 11.11.1998 about the dishonour of cheques. Therefore, he gave notice to the accused on 17.11.1998 demanding amount of unpaid cheques. The notice was sent by the RPAD and under postal certificate. The notice sent by, RPAD could not be served to the accused as the accused remained absent at the time of delivery of the envelope containing the notice. However, the notice sent under postal certificate was received by the accused but the accused did not pay the outstanding amount of Rs. 3,57,000 nor replied to the notice. Therefore, the complaint was filed in the Court of learned Metropolitan Magistrate, 16th Court at Ahmedabad and it was registered as criminal case No. 5294/1998. The Trial Court issued summons and the accused appeared and pleaded no guilty. Therefore, the prosecution adduced the evidence. On completion of recording of the evidence, further statement of the accused was recorded under Section 313 of the Criminal Procedure Code. After hearing learned advocates for the parties, the Trial Court by impugned judgment acquitted the accused. Being aggrieved by the said decision the complainant has preferred this appeal.

(3.) At the time of hearing of the appeal, record and proceeding of the Trial Court were called for. On perusal of the record, it transpires that part of the evidence was recorded by learned Metropolitan Magistrate Court No. 9, Ahmedabad, but thereafter, the case was transferred to the Court of learned Metropolitan Magistrate (Negotiable Instrument Act, Court No. 2), Ahmedabad and it was registered as criminal case No. 507/2008. Learned Metropolitan Magistrate (Negotiable Instrument Act, Court No. 2) proceed further from the stage left by his earlier learned Magistrate and heard oral submissions of learned advocate for the parties and delivered the impugned judgment. Therefore, it becomes clear that learned Metropolitan Magistrate, who recorded the evidence did not pass the impugned judgment but his Successor Magistrate heard the arguments and delivered the judgment. In the decision of Nitinbhai Saevatilal Shah Manubhai Manjibhai Panchal, 2011 AIR(SC) 3076 para 13 and 14 as under: