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Criminal Appeal No. 1703 of 2011 (Arising out of SLP (Criminal) No. 723 of 2011). Case: Nitinbhai Saevatilal Shah and Anr. Vs Manubhai Manjibhai Panchal and Anr.. Supreme Court (India)

Judgment Cited in 18 Precedent Map Related
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Case NumberCriminal Appeal No. 1703 of 2011 (Arising out of SLP (Criminal) No. 723 of 2011)
CounselFor Appellant: Amar Dave, P.S. Sudheer and Rishi Maheshwari, Advs. and For Respondents: Atul Y. Chitale, Sr. Adv., Nishtha Kumar, Abhijat P. Medh, Hemantika Wahi, Pinky Behra and Suveni Banerjee, Advs.
JudgesJ.M. Panchal and H.L. Gokhale, JJ.
IssueNegotiable Instruments Act, 1881 - Section 138; Criminal Procedure Code (CrPC), 1973 - Sections 260, 262, 263, 264, 313, 322, 325, 326, 326(1), 326(2), 326(3), 357, 461 and 465; Criminal Procedure Code (CrPC), 1898 - Section 350
Citation2011 (3) ACR 2690, AIR 2011 SC 3076, 2011 (4) RCR 148 (Criminal), 2011 (9) SCALE 583
Judgement DateSeptember 01, 2011
CourtSupreme Court (India)

Judgment:

J.M. Panchal, J.

1. 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 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 Code of Criminal Procedure 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 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 dishonored and sent back to the complainant with a memorandum dated October 15, 1998 mentioning that the cheque was dishonored because of insufficiency of funds. Thereupon, the complainant served a demand notice dated October 28, 1998 which was returned unnerved 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 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 defense 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 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...

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