Judgment 1. AN application under section 401 read with section 482, Cr. P.C. is the subject matter of the present revisional application in which an order passed by the Chief Metropolitan Magistrate, Calcutta in Case No. C-1135 of 1991 on 29.3.95 has been sought to be set aside. 2. THE case of the petitioner is that complainant opposite party No. 2 filed the case being C-1135 of 1991 before the Chief Metropolitan Magistrate, Calcutta of an alleged offence under section 138 of the Negotiable Instruments Act. Allegation contained in the compliant in short is that a cheque for Rs.30,000/- was issued by the present petitioner drawn on Hongkong and Shanghai Banking Corporation on 10th of December, 1990 in favour of the complainant and the cheque was dishonoured on presentation on 21st of May, 1991. As the petitioner pleaded not guilty to the charges when the case was being tried before the Metropolitan Magistrate, 9th Court to whom the case was earlier transferred by the Chief Metropolitan Magistrate, Calcutta for trial, witnesses were examined on behalf of the complainant as also the Defence, that is the present petition. In course of evidence, P. W. 1 and P. W. 2 stated that the petitioner signed the cheque in their presence at the premises of P. W. 1. It was the defence of the petitioner that she did not know the complainant and she did not issue any cheque in his favour. Direct and positive suggestions were given to both the witnesses that the petitioner never went to the residence of P. W. 1 or put her signature on the cheque in course of cross-examination. During examination, under section 313, Cr. P.C. the petitioner reiterated that she did not know the complainant did not put her signature on any cheque and also did not issue any cheque in his favour. The Metropolitan Magistrate, 9th Court, Calcutta did not think it necessary to get the disputed cheque examined by hand-writing expert but on the basis of the evidence on record, he found the present petitioner guilty for offence under section 138, Negotiable Instruments Act and referred to the case of the Chief Metropolitan Magistrate, under section 325, Cr. P. C. since he was unable to pass appropriate sentence which was beyond his pecuniary jurisdiction. 3. P. C. since he was unable to pass appropriate sentence which was beyond his pecuniary jurisdiction. 3. WHILE the matter was pending before the Chief Metropolitan Magistrate, the petitioner made an application under Section 325 (3), Cr. P. C. on 21. 3. 95 with a prayer to recall the Bank witness for the production of specimen signature of the petitioner from the Bank and get it examined by hand-writing expert with reference to the signature appearing in the disputed cheque. But the Chief Metropolitan Magistrate by the impugned order dated 29. 3. 95 rejected the said contention. 4. BEING aggrieved the present revisional application has been preferred alleging that in the face of the clear denial by the petitioner regarding issuance of cheque or signing the same in favour of the complainant revealed from the cross-examination of rws. and also examination of the accused under section 313, Cr. P. C. rejection of the prayer to get the disputed signature examined by a hand-writing expert is not in accordance with law in view of the power given to the referring Magistrate under section 325 (3), Cr. P. C. The revisional application is being contested by Opposite Party No. 2 being the complainant of the Criminal Case. The Opposite Party No. 2 also filed an application for vacating the interim order of stay of this Court passed while entertaining the revisional application after filing an application to the effect on 15. 9. 95 which was however not pressed earlier and as the same was pending. It was also heard along with the main revisional application. 5. I have heard submissions made by the Learned Advocates representing the petitioner and Opposite Party No. 2 and I come to the conclusion that for the reason stated below the impugned order of the learned Chief Metropolitan Magistrate, Calcutta cannot sustain. 6. SECTION 325 (1) Cr. P. C. authorises a Magistrate trying a case to submit the proceeding and forward the accused to the Chief Judicial Magistrate to whom he is subordinate, if he is of opinion after hearing the evidence for the prosecution and the accused that the accused is guilty and that he ought to receive a punishment different in kind from or more severe than that which such Magistrate is empowered to inflict. In doing so, the referring Magistrate was to record his opinion and then submitted the proceedings. In doing so, the referring Magistrate was to record his opinion and then submitted the proceedings. In the present case the referring Magistrate is the Metropolitan Magistrate, 9th court, Calcutta and the referred Magistrate is the Chief Metropolitan Magistrate, calcutta who in relation to a Metropolitan Magistrate is for all purposes a Chief Judicial magistrate as referred in the said section. 7. BEFORE taking up the impugned order and decideing the propriety of the same, i think it necessary to examine the reference made by the Metropolitan Magistrate, 9th Court, Calcutta since I find that the reference is not in accordance with law. The ordering portion of the reference which is in the form of a judgment being dated 19. 1. 1995 in Case No. C-1135 of 1991 runs thus "that the accused is found guilty of committing offence under section 138 of the Negotiable Instruments Act of 1881 and is convicted of the said offence. The case is referred to the learned Chief Metropolitan magistrate, Calcutta under section 325, Cr. P. C. for imposing adequate sentence upon the convict". It is clear from the above that the learned Metropolitan Magistrate, 9th court, not only found the accused petitioner guilty but also convicted her and then referred the proceeding to learned Chief Metropolitan Magistrate, for imposing adequate sentence upon the convict. Apart from the fact the section is very clear, there is a plethora of decisions of different High Courts to the effect that while referring a case under section 325 (1) Cr. P. C. , the Magistrate cannot convict the accused. He can only record his opinion, so far as guilt of the accused is concerned but he cannot convict the accused. The reason is very simple and clear from section 325 (3), Cr. P. C. The proceeding so far as the referring Magistrate is concerned, is complete as soon as he makes a reference under section 325 (1), Cr. P. C. but the proceeding itself cannot be said to be concluded since sub-section 3 of the said section enables the Chief Judicial magistrate and in the present case Chief Metropolitan Magistrate to examine parties and call and examine any witness who has already given evidence in the case and may call for and take any further evidence if he thinks fit before passing a judgment, sentence or order in accordance with law. To convict a person brings the proceeding to a close, so far as the guilt of the accused is concerned and the only thing which remains is the sentence to be passed. Therefore, if the referring Magistrate convicts a person the only part to be played by the referred Magistrate is to pass the sentence which is not tenor of sub-section 3 of the said section. The referring Magistrate under section 325 (1) shall simply record his opinion about the guilt of the accused and shall mention the reason for which he is referring the case to the Chief Judicial Magistrate or Chief Metropolitan Magistrate as the case may be expressing his inability either to pass adequate sentence or to sentence the accused of a kind which he is not empowered to do. The provisions of sub-section 3 of the said section will be nugatory if the referring Magistrate convicts a person which means that the guilt of the accused is established, and as the Chief Judicial Magistrate or Chief Metropolitan Magistrate, as the case may be, is not the appellate authority of the referring Magistrate, it cannot have any power to examine the propriety of conviction. It is not the law that the magistrate to whom a proceeding is referred under section 325 (1), Cr. P. C. must convict the accused and pass the sentence, but if, after the examination of parties and witnesses and after taking further evidence, he finds that guilt of the accused has not been proved or that the matter ought to have been referred to the Court of Session by way of a commitment order, he is at liberty to do so. Therefore, the reference made by the learned Metropolitan Magistrate, 9th Court, Calcutta in the present case is not in accordance with law. However, the mistake committed by the referring Magistrate is a legal nicety which can be ignored and the said mistake shall not be a bar for the chief Metropolitan Magistrate, to act in accordance with provisions of Section 325 (3), cr. P. C. 8. However, the mistake committed by the referring Magistrate is a legal nicety which can be ignored and the said mistake shall not be a bar for the chief Metropolitan Magistrate, to act in accordance with provisions of Section 325 (3), cr. P. C. 8. I have carefully pursued the order dated 29.3.95 passed by the learned Chief metropolitan Magistrate, Calcutta on an application made by the present petitioner being the accused before that Court for a direction to issue summons upon Bank authorities for production of specimen signature card maintained in the Bank to get the same verified by hand-writing expert in relation of the signature appearing in the disputed cheque. The reason behind the refusal of the prayer according to the learned chief Metropolitan Magistrate is that no suggestion was given either to the complaint or his witness that the signature of the accused as appearing in the disputed cheque was not made by her. He further opined that the case continued for a long time in the trial Court and no measure was taken on behalf of the accused to file an application to get her signature verified in relation to the disputed signature in the cheque. The learned Chief Metropolitan Magistrate also observed that in course of her statement under section 313, Cr. P. C. the accused did not say that the signature appearing in the cheque was not in her hand-writing. Accordingly, he came to the conclusion that it was a delayed tactics and as such he rejected the prayer. The learned Advocate appearing for the petitioner has drawn my attention to relevant provision of the evidence given by the complainant, as well as his witness in support of his contention that suggestions are there denying authorship of the signature. He has referred to the cross-examination of P. W. 1 where relevant suggestions run as follows :- "not a fact, Seema Chatterjee did not come to my house and put the signature in Exhibit 2 in my presence. " In another place a suggestion has been given in the following manner "not a fact that Seema Chatterjee did not issue any post dated cheque to me". A suggestion was also given to P. W. 2 which is to the effect "not a fact Seema Chatterjee did not put her signature in that cheque in my presence". " In another place a suggestion has been given in the following manner "not a fact that Seema Chatterjee did not issue any post dated cheque to me". A suggestion was also given to P. W. 2 which is to the effect "not a fact Seema Chatterjee did not put her signature in that cheque in my presence". In course of examination of the accused petitioner under section 313, Cr. P. C. a question was put, being question No. 3 that the accused went to the house of the complainant, took loan of Rs. 30. 000/-, granted a receipt and also issued a post dated cheque in his favour. The accused gave the answer that she did not know either the complainant or the witness and had never been to the house of the complainant. In question No. 4, the accused was asked that the cheque issued by her when presented at the Bank on 21.5.91 was dis-honoured and the accused replied that she did not issue any cheque. A question, similar in nature to question No. 3 was again put, being question No. 6 when the accused categorically stated that she did not know the complainant, she did not issue any cheque and she also did not take any loan. From the aforesaid evidence and examination of the accused, it has been argued for'the petitioner that the authorship of the disputed cheque has been denied by the accused petitioner on more than one occasion in course of the trial. 9. ON the other hand, the learned advocate appearing for opposite party No. 2 referred to section 167 of the Evidence Act in support of his contention that the application for getting the disputed signature verified with the specimen signature of the accused kept in the Bank was rightly rejected by the learned Chief Metropolitan magistrate. In my opinion, section 167 of the Evidence Act has got no manner of application in the present case. In my opinion, section 167 of the Evidence Act has got no manner of application in the present case. The said provision runs as follows :- the improper admission or rejection of evidence shall not be a ground of itself for a fresh trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised that apart from the evidence objected to and admitted, there was sufficient evidence to justify the decision or that if the rejected evidence had been admitted, it ought not to have varied the decision. 10. IN the present case, there is the allegation that the accused petitioner issued a cheque under her signature in favour of the complainant. The story has been stated by the complainant and another witness. The issuance of cheque itself has been denied by the accused, in course of cross-examination of the two PWs. as well as in course of the examination of the accused under section 313, Cr. P.C. The Bank officials examined at one stage by the complainant and subsequently by the defence say no more than that the cheque, in question, was issued by Seema Chatterjee. On the other hand, it will appear from his evidence that the verification of signatures was being done by him since March, 1993 and it is a case when such verification, if any, must have been done on 21st of May, 1991 when the said cheque was presented at the bank. The Bank official having no certificate or diploma in connection with comparing signatures is not at all competent to give any opinion about the authorship of the signature since it was not even verified by him, in course of his official business at the time when the said cheque was presented at the Bank. Therefore, it was a question of assertion on the one side and denial on the other side about the genuineness of the signature which question can only be resolved if the same is referred to hand-writing expert who is competent to compare scientifically the disputed writings with the specimen maintained at the Bank. Therefore, it cannot be said that apart from the evidence objected to, there was sufficient evidence to justify the decision. It cannot also be said that apart from the evidence objected to, there was sufficient evidence to justify the decision. Therefore, it cannot be said that apart from the evidence objected to, there was sufficient evidence to justify the decision. It cannot also be said that apart from the evidence objected to, there was sufficient evidence to justify the decision. It cannot also be said that if the rejected evidence had been received there might not have been a change in the decision. The present case hinges on the genuineness or otherwise of the signature and therefore the said question must be solved conclusively which an only be done after the service of hand-writing expert is taken. In the teeth of strong denial at different stages of trial refusal to get the verification done by hand-writing expert on the part of the learned Chief Metropolitan Magistrate, Calcutta is not a sound exercise of discretion when exercising his power under section 325 (3), Cr. P. C. The argument for the defence is that the case is of 1989 is of no significance since the question of guilt or otherwise of a person is concerned and in the absence of conclusive evidence, guilt of a person cannot be established on the basis of preponderance of evidence which is alien to criminal jurisprudence. Accordingly, the impugned order of the learned Chief Metropolitan Magistrate, Calcutta dated 29. 3. 95 passed in case No. C-1135 of 1991 stands set aside. The learned Chief Metropolitan Magistrate is directed to give an opportunity to the accused petitioner to take appropriate steps for comparing the disputed signatures appearing in the cheque with the admitted signature appearing in the specimen Card at the bank and thereafter he shall come to an independent decision about the guilt of the accused on the basis of evidence of record, as well as the subsequent evidence of the handwriting expert and thereafter to proceed in accordance with law. The revisional application accordingly stands allowed on contest and the application for vacating the interim order made on 15. 9. 1995 by opposite party No. 2 also stands dispose of. Appeal allowed.