MANHARBHAI SUKHLALBHAI PATEL Vs. KUNDANKUMAR M SHAH

JUDGEMENT

(1.) PRESENT Criminal Revision Application under Section 397 r/w Section 401 of the Code of Criminal Procedure has been preferred by the applicantoriginal complainant to quash and set aside the impugned judgment and order passed by the learned Additional Sessions Judge Court No.6, City Sessions Court, Ahmedabad below Exh.5 dated 31.5.2012 passed in Criminal Appeal No.33 of 2012, by which, the learned Appellate Court has quashed and set aside the judgment and order of conviction and sentence passed by the learned Metropolitan Magistrate convicting the accused for the offence under Section 138 of the N.I. Act and remanding the matter to the learned trial Court for denovo trial in view of the decision of the Hon'ble Supreme Court in the case of Nitinbhai Saevatilal Shah & Anr vs. Manubhai Manjibhai Panchal & Anr. reported in AIR 2011 SC 3076.

(2.) THAT the respondent no.1 hereinoriginal accused has been convicted by the learned Metropolitan Magistrate for the offence under Section 138 of the N.I. Act. Being aggrieved and dissatisfied with the judgment and order of conviction and sentence passed by the learned Metropolitan Magistrate convicting the accused for the offence under Section 138 of the N.I. Act dated 20.8.2009 passed in Criminal Case No.51 of 2008 (322 of 2004 Old), respondent no.1 original accused preferred Criminal Appeal No. 229 of 2009 before the learned City Civil & Sessions Court, Ahmedabad. That relying upon the decision of the Hon'ble Supreme Court in the case of Nitinbhai Saevatilal Shah (supra) it was submitted by the accused that as the case for the offence under Section 138 of the N.I. Act is triable as summary trial and therefore, it was not permissible for the learned subsequent Magistrate to rely upon the evidence recorded by his predecessor Magistrate and therefore, entire trial has been vitiated. Considering the above and considering the fact that predecessor Magistrate recorded the evidence and thereafter he came to be transferred and relying upon the said evidence recorded by the predecessor Magistrate, the subsequent Magistrate has proceeded further with the trial and convicted the accused for the offence under Section 138 of the N.I. Act, which is not permissible, the learned Appellate Court by impugned judgment and order has allowed the said appeal by quashing and setting aside the order of conviction passed by the learned Magistrate and remanding the matter to the learned Magistrate for de novo trial.

(3.) HEARD Shri Dastoor, learned advocate for the petitioner original complainant. As stated above, learned advocate for the petitioner has stated at the bar that he does not press present Criminal Revision Application challenging the impugned judgment and order passed by the learned Appellate Court remanding the matter to the learned trial Court for denovo. However, has requested to issue directions directing the learned Magistrate to finally conclude, decide and dispose of the trial at the earliest and within the stipulated time as original criminal case is of the year 2004. He has also requested to make suitable observations that the learned Magistrate may conduct the trial as summons triable as provided under proviso to Section 143 of the N.I. Act.