Nitinbhai Saevantilal Shah & Anr vs Manubhai Manjibhai Panchal & Anr

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 2 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 dishonoured and sent back to the complainant with a memorandum dated October 15, 1998 mentioning that the cheque was dishonoured because of insufficiency of funds. Thereupon, the complainant served a demand notice dated October 28, 1998 which was returned unserved 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 3 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 defence 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.

7. Feeling aggrieved, the appellants preferred Criminal Appeal No.19 of 2003 in the Court of the learned Additional City Sessions Judge at Ahmedabad. The learned Judge found that conviction of the appellants recorded under Section 138 of the Act was perfectly just 5 but noticed that the appellant No. 2 is a private limited company and therefore, could not have been sentenced to simple imprisonment for three months. Therefore, the learned Additional City Sessions Judge, Court No.13, Ahmedabad by judgment dated October 16, 2003 dismissed the appeal but set aside sentence of simple imprisonment of three months imposed upon the appellant No.2 and maintained the full sentence imposed upon appellant No.1 as well as sentence of fine of Rs.3,000/- imposed upon the appellant No.2.

8. Dissatisfied with the judgment of the First Appellate Court, the appellants preferred Criminal Revision Application No.529 of 2003 in the High Court of Gujarat at Ahmedabad. The learned Single Judge by judgment dated August 09, 2010, maintained conviction of the appellants under Section 138 of Negotiable Instrument Act, but set aside final order of sentence imposed upon the appellants and remanded the matter to the learned Magistrate for passing appropriate order of sentence and 6 compensation, if any payable under Section 357 of the Code, within three months, after giving to the parties reasonable opportunity of being heard, which has given rise to the instant appeal.

Section 264 mentions that in every case tried summarily in which the accused does not plead guilty, the Magistrate shall record the substance of evidence and a judgment containing a brief statement of the reasons for the finding. Thus the Magistrate is not expected to record full evidence which he would have been, otherwise required to record in a regular trial and his judgment should also contain a brief statement of the reasons for the finding and not elaborate reasons which otherwise he would have been required to record in regular trials.

19. For the foregoing reasons the appeal succeeds. The judgment dated August 09, 2010 rendered by the learned Single Judge of the High Court of Gujarat at Ahmedabad in Criminal Revision Application No. 529 of 2003 upholding conviction of the appellants for the offence under Section 138 of the Act is hereby set aside. The matter is remanded to the learned Metropolitan Magistrate for retrial in accordance with law. The record shows that the appellant No.1 has resorted to dilatory tactics to delay the trial. The appellant No.1 is directed to remain present before the learned Metropolitan Magistrate when required without fail. If the appellant No. 1 fails to remain present before the learned Metropolitan Magistrate, it would be open to the learned Metropolitan Magistrate to take necessary steps including issuance of non-

bailable warrant for securing his presence. Having regard to the facts of the case the learned Metropolitan Magistrate is 17 directed to complete the trial of the case as early as possible and preferably within five months from the date of receipt of the writ from this Court. Subject to above mentioned observations the appeal stands disposed of.

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