RAMJIBHAI HARIBHAI CHAUDHARI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Present Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure has been preferred by the petitioner - original accused to quash and set aside the impugned Judgement and Order of conviction and sentence passed by the learned Judicial Magistrate (First Class), Mehsana in Criminal Case No. 1098 of 2004 dtd.16/4/2009, by which the petitioner -original accused has been convicted for the offence punishable under Section 138 of the Negotiable Instruments Act and ordered to undergo Simple Imprisonment for a period of six months with fine of Rs.5,000/ - and in default, to undergo further Simple Imprisonment for a period of One Month and further directed the petitioner -original accused to pay Rs.3,50,000/ - to the original complainant, towards compensation under Section 357(2) of the Code of Criminal Procedure. The petitioner herein - original accused has also challenged the impugned Judgement and Order passed by the learned appellate Court - learned Additional Sessions Judge, Mehsana in Criminal Appeal No.47 of 2009 dtd.13/10/2010, by which the learned appellate Court has dismissed the said appeal preferred by the petitioner herein -original accused confirming the Judgement and Order passed by the learned trial Court.

(2.) That the respondent No.2 herein - original complainant filed Criminal Case No. 1098 of 2004 against the petitioner herein - original accused in the Court of learned Judicial Magistrate (First Class), Mehsana for the offence under Section 138 of the Negotiable Instruments Act for dishonour of the cheque of Rs.3,50,000/ - dtd.5/2/2004 drawn on Sarvodaya Commercial Cooperative Bank Limited, Mehsana Branch. It was the case on behalf of the complainant that when the said cheque was deposited, the same came to be dishonoured with the endorsement "insufficient fund" and thereafter the complainant issued and served statutory notices dtd.12/2/2004 by RPAD as well as UPC and though the notices came to be served, the amount under the cheque in question was not paid and therefore, the respondent No.2 -original complainant filed the aforesaid complaint and requested to convict the petitioner -original accused for the offence under Section 138 of the Negotiable Instruments Act.

(3.) Mr.Amit Chaudhary, learned Advocate appearing on behalf of the petitioner herein - original accused has vehemently submitted that in the present case, plea and evidence has been recorded by one learned Magistrate and thereafter the case was transferred to another learned Magistrate and the successor Magistrate has relied upon the evidence recorded by the earlier Magistrate and proceeded further with the trial placing reliance on evidence recorded by his predecessor, which is not permissible in view of provisions of Section 326 of the Code of Criminal Procedure and in view of the decision of the Hon'ble Supreme Court in the case of Nitin Saevantilal Shah Versus Manubhai Manjibhai Panchal, reported in (2011) 9 SCC 638. By making above submissions and relying upon the decision of the Hon'ble Supreme Court in the case of Nitin Saevantilal Shah (supra), it is requested to allow the present Revision Application and quash and set aside the Judgement and Orders passed by both the Courts below and remand the matter to the learned trial Court with a direction to try the case de novo.