SURESH CHANDRA VADILAL SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dated 25th March, 2008 passed by the learned Metropolitan Magistrate, Court No.16, Ahmedabad in Criminal Case No.770/2004 whereby he has acquitted the respondent- accused of the charges levelled against him under section 138 of the Negotiable Instruments Act, 1881.

(2.) AT the outset, Mr. Y.F. Mehta, learned counsel for the appellant drew the attention of the court to the record and proceedings of the case to submit that in the facts of the present case, initially the evidence had been recorded by the learned Metropolitan Magistrate, Court No.5. However, subsequently, the matter was transferred to the court of the learned Chief Metropolitan Magistrate and was assigned to the learned Metropolitan Magistrate, Court No.16, who has recorded the remaining part of the evidence and then passed the impugned judgment and order dated 25 th March, 2008. The attention of the court was invited to the decision of the Supreme Court in the case of Nitinbhai Saevatilal Shah and another v. Manubhai Manjibhai Panchal and another, (2011) 9 SCC 638, to submit that 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. However, sub-section (3) of section 326 makes it more than evident that sub-section (1) which authorises 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. It was submitted that in the facts of the present case, the trial is in the nature of summary trial, under the circumstances, a Magistrate who succeeds the Magistrate who recorded the part or the whole of the evidence cannot act, on the evidence so recorded by his predecessor. Under the circumstances, the entire proceeding stands vitiated. Hence, the impugned judgment and order deserves to be quashed and set aside on this ground alone and the matter is required to be remitted to the trial court for deciding the same afresh.

(3.) IN the light of the aforesaid position, it is not necessary to set out the facts and the evidence recorded during the course of trial in detail.