ORDER By Court This acquittal appeal is directed against the Judgment dated 25.05.2005 passed by Sri S.K.Dubey, learned Judicial Magistrate, First Class, Jamshedpur in C/1 Case No. 479 of 2001 (T.R. No.483 of 2005), whereby, upon adjudication of the case under Section 138 of Negotiable Instrument Act (hereinafter referred to as ‘the N.I. Act’), the trial Court has held that the complainant has not been able to prove the case under Section 138 of the N.I. Act beyond all reasonable doubts and hence, has acquitted the respondents accused of the said accusation. The appellant complainant has filed this acquittal appeal against the said Judgment of acquittal. 2. An affidavit has been filed on behalf of the respondents to show that respondent no. 2, Ramesh Kumar Pansari died during the pendency of this appeal on 23.12.2009. The death certificate of the said accused respondent has been brought on record as Annexure -A. No rejoinder thereto has been filed. Accordingly, this appeal stands abated as against respondent No. 2, Ramesh Kumar Pansari. 3. The complainant's case, as made out in the complaint petition is that the complainant is a company, incorporated under the Companies Act and its Director, Shri Binod Kumar Debuka was authorized to represent the company and file the case against the accused. It is alleged in the complaint petition that sometimes in the month of October, 1999 both the accused persons visited the office of the complainant and made the Director of the complainant to understand that they are partners of M/s. Tatanagar Steel Products, carrying good reputation in the market and they impressed upon the complainant to supply the iron materials to the accused persons, assuring the regular payment on their behalf. On the above assurance of the accused persons, the complainant supplied iron materials to the accused persons till December 2000 and by that time, a sum of Rs. 6,44,320.50/- was due against the accused persons. At one point of time, the accused persons paid a sum of Rs. 60,750/- to the complainant in the month of December, 2000, but still a sum of Rs. 5,83,560.50/- was due to the complainant. On 03.03.2001, both the accused persons came to the complainant and pleaded that they were in financial stringency and for coming out of the financial crisis, they required a loan of Rs. 60,750/- to the complainant in the month of December, 2000, but still a sum of Rs. 5,83,560.50/- was due to the complainant. On 03.03.2001, both the accused persons came to the complainant and pleaded that they were in financial stringency and for coming out of the financial crisis, they required a loan of Rs. 1,00,000/-, which was also advanced by the complainant to the accused persons through a cheque dated 03.03.2001 in the name accused Ramesh Kumar Pansari. Thereafter both the accused persons issued a cheque bearing No. 29406 dated 08.03.2001 in favour of the complainant for Rs. 6,83,560.50/-, drawn upon the Union Bank of India, SSI Branch, Jamshedpur. The said cheque was deposited in the Bank on 13.03.2001, but on 15.03.2001, the complainant was informed by the Bank that the payment was stopped by the accused persons. On 28.03.2001, a legal notice of demand was given by the complainant to the accused persons, which was duly served upon them on 29.03.2001. As the payment was not made to the complainant in spite of receiving the notice, the said complaint petition was filed. 4. It appears from the record that the authorized Director of the complainant has examined himself as CW-1 in the Court below and has also examined four other persons as witnesses in support of the case. The legal notice issued to the accused persons was proved as Exhibit 1, the reply to the said notice was proved as Exhibit 2, the cheque in question, was proved as Exhibit 3, the return memo of the Bank was proved as Exhibit 4, the postal receipts of notice were proved as Exhibits 5 and 5/1 and the acknowledgments due were proved as Exhibit 6 and 6/1, the statement of the Bank account was proved as exhibit 7 series, whereas, Exhibit 8 is the authorization of Shri Binod Kumar Debuka to conduct the case on behalf of the company. 5. On the basis of the evidence brought on record, the Court below has come to the finding that the complainant has not been able to prove the case under Section 138 of the N.I. Act beyond all reasonable doubts for the reason that the complainant had not been able to prove the advancing of rupees one lakh to the accused persons as loan. The complainant had also failed the prove the invoices or bills raised to the accused persons in support of the claim that the materials were supplied to the accused persons, thus, the complainant failed to prove that the cheque was issued to the complainant in discharge of any lawful debt and accordingly, the complainant was not able to prove the case beyond all reasonable doubts under Section 138 of the N.I. Act. 6. From perusal of the record, I find that some part of the evidence was recorded by the S.D.J.M., Jamshedpur and thereafter, the case was transferred to the Court of Judicial Magistrate and the remaining part of the evidence was recorded by the transferee Court. 7. Learned counsel for the appellant complainant has challenged the impugned Judgment of acquittal, submitting that the complainant has been able to prove that the cheque was issued in favour of the complainant, which was proved as Exhibit 3. The said cheque was produced in the Bank within the prescribed time and the return memo of the Bank was also proved by the complainant. It is further submitted that the complainant has also proved the legal notice given to the accused persons which was received by the accused and within the prescribed time after the refusal by the accused, the complaint was filed. Learned counsel submitted that though by bringing these materials on record, the complainant had been able to prove the case against the accused persons beyond all reasonable doubts, but the proceeding in the Court below suffered from a material of illegality, inasmuch as, the trail under Section 138 of the N.I Act is a summary trial and it is well settled principle of law that the Magistrate cannot proceed in a summary trial by placing reliance on the evidence recorded by the predecessor Magistrate. Learned counsel, accordingly, submitted that the entire proceeding in the Court below was vitiated and it is a fit case, in which, the Judgment should be set aside and the matter be remanded back for fresh adjudication in accordance with law. Learned counsel, in support of his contention, placed reliance upon the decision of the Hon'ble Supreme Court of India in the case of Nintinbhai Saevatilal Shah & Anr. Vrs. Manubhai Manjibhai Panchal & Anr. (reported in 2011 (4) JLJ SC 83) wherein, it has been laid down as follows :- “14. Learned counsel, in support of his contention, placed reliance upon the decision of the Hon'ble Supreme Court of India in the case of Nintinbhai Saevatilal Shah & Anr. Vrs. Manubhai Manjibhai Panchal & Anr. (reported in 2011 (4) JLJ SC 83) wherein, it has been laid down as follows :- “14. The mandatory language in which Section 326 (3) is couched, leaves no manner of doubt that when a case is tried as a summery case a Magistrate, who succeeds the Magistrate who had recorded the part or whole of the evidence, cannot act on the evidence so recorded by his predecessor. In summary proceedings, the successor Judge or Magistrate has no authority to proceed with the trial from a stage at which his predecessor has left it. The reason why the provisions of Sub Section (1) and (2) of Section 326 of the Code have not been made applicable to summary trials is that in summary trials only substance of evidence has to be recorded. The Court does not record the entire statement of witness. Therefore, the Judge or the Magistrate who has recorded such substance of evidence is in a position to appreciate the evidence led before him and the successor judge or Magistrate cannot appreciate the evidence only on the basis of evidence recorded by his predecessor. Section 326 (3) of the Code does not permit the Magistrate to act upon the substance of the evidence recorded by his predecessor, the obvious reason being that if succeeding Judge is permitted to rely upon the substance of the evidence recorded by his predecessor, there will be a serious prejudice to the accused and indeed, it would be difficult for a succeeding Magistrate himself to decide the matter effectively and to do substantial justice. 15. It is well settled that no amount of consent by the parties can confer jurisdiction where there exists none, on a Court of law nor can they divest a Court of jurisdiction which it possesses under the law. (Emphasis supplied). Learned counsel submitted that in the said case, the Hon’ble Supreme Court had remanded the matter to the Court below for fresh adjudication in accordance with law and accordingly, the same procedure should be adopted by this Court as well. 8. (Emphasis supplied). Learned counsel submitted that in the said case, the Hon’ble Supreme Court had remanded the matter to the Court below for fresh adjudication in accordance with law and accordingly, the same procedure should be adopted by this Court as well. 8. Learned counsel appearing on behalf of the respondent accused, on the other hand, submitted that in the present case, the accused has been acquitted by the Court below, whereas, in the case of Nintinbhai Saevatilal Shah & Anr.(supra) the matter had gone to the Hon'ble Supreme Court against conviction and accordingly, the Hon’ble Supreme Court set aside the Judgment of conviction and had remanded back the case to the Court for fresh adjudication in accordance with law. Learned counsel submitted that in the present case, as the accused has been acquitted by the Court below after adjudication, there is no occasion for any interference in the Judgment of acquittal. 9. It has been submitted that even otherwise, the complainant had not been able to make out any case against the accused beyond all reasonable doubts, in as much as, though the accused persons were alleged to be the partners of a firm, but the said partnership firm had not been made an accused. It has also been submitted that this apart, in the complaint petition, there is no averment that the accused persons were in charge of and were responsible to the firm for the conduct of the business of the firm and in absence of these averments, the respondent could not have been made accused. In this connection, learned counsel has placed reliance upon a decision of Hon’ble Supreme Court of India in the case of Monaben Ketanbhai Shah & Anr. Vrs. State of Gujarat & Ors, reported in 2004 (3) Crimes 231 (SC) wherein, it has been held that Section 141 of the N.I. Act does not make all partners liable for the offence. The criminal liability has been fastened on those who, at the time of the commission of the offence, was in charge of and was responsible to the firm for the conduct of the business of the firm. Placing reliance on this decision, learned counsel submitted that in absence of the necessary averment in the complaint petition, the accused persons could not have been tried for the offence under Section 138 of the N.I. Act. 10. Placing reliance on this decision, learned counsel submitted that in absence of the necessary averment in the complaint petition, the accused persons could not have been tried for the offence under Section 138 of the N.I. Act. 10. Learned counsel further has placed reliance upon the decision of this Court in the case of Shivam Finance & Leasing Company Vrs. State of Jharkhand & Anr., reported in 2010 (4) JCR 283 (Jhr), wherein, placing reliance upon the decision of the Hon'ble Supreme Court of India in the case of Babu and others Vs. State of Uttar Pradesh, reported in A.I.R 1983 SC 308, it has been held that it is well settled principle of law that in appeal against acquittal if two views are possible, the Appellate Court should not interfere with the conclusions arrived at by the trial Court, if the finding reached by the trial Judge is not unreasonable. Placing reliance upon the decision, learned counsel has submitted that the trial Court has given valid reasons for acquitting the accused persons and as such, even if two views are possible on the reasoning of the trial Court , the Judgment of acquittal should not be interfered with by this Court. 11. After having heard the learned counsels for both sides and upon going through the record, I find that there is material illegality in the proceeding in the Court below, inasmuch as, in a summery proceeding, some the evidence had been recorded by one Magistrate and thereafter, the case was transferred to the Court of another Magistrate where the remaining evidence had been recorded by the transferee Magistrate, who had also placed reliance upon the evidence recorded by the predecessor Magistrate. The said procedure is absolutely illegal and the case is fully covered by the decision of the Hon'ble Supreme Court of India in the case of Nintinbhai Saevatilal Shah (supra). 12. However, from the materials brought on record, including the complaint petition, I find that though the accused persons were alleged to be the partners of a firm, but there is no averment that the accused persons were in charge of and were responsible to the firm for the conduct of the business of the firm. In absence of these averments, the respondent could not have been made accused, as held by Hon’ble Supreme Court in the case of Monaben Ketanbhai Shah (supra). In absence of these averments, the respondent could not have been made accused, as held by Hon’ble Supreme Court in the case of Monaben Ketanbhai Shah (supra). As such, I am of the considered view that this is not a fit case for remand to the Court below for retrial of the case afresh, as the same shall only result in unnecessary harassment to the accused. 13. Accordingly, in the facts of this case, even though there is material illegality in the proceedings of the Court below, I find that this is not a fit case to interfere with the Judgment of acquittal, recorded in favour of the respondent accused. As such, I do not find any merit in this appeal, which consequently, stands dismissed.