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2008 DIGILAW 3 (CAL)

Anita Kundu v. Supreme Leasing Ltd.

2008-01-08

PARTHA SAKHA DATTA

body2008
Judgment PARTHA SAKHA DATTA, J. (1) By this revisional application prayer has been made for quashing of, a criminal case being Complaint Case No. 6368 of 2003 under section 138 of the N.I. Act pending before the learned Metropolitan magistrate, 3rd Court, Calcutta on the ground that the case is not a genuine one, intended only to harass the petitioner. (2) I have heard Mr. Abhijit Addhya, learned Advocate appearing for the petitioner and Mr. Ayan Bhattacharya and Mr. Indrajit Adhikari, learned advocates appearing for the opposite party No. 1. In the petition of complaint it was averred that the accused-petitioner who is a proprietor of M/s, Anita enterprises issued a cheque in favour of the complainant on 07.07.2003 for Rs. 30,500/- drawn on Hawrah Gramin Bank, Batora Branch to discharge an existing liability arising out of a lease agreement entered into by and between the complainant and the accused. The cheque was presented for encashment but was dishonoured through a returned memo of the bank on 09.08.2003. Advocates notice followed under section 138 (b) of the N.I. Act per registered post with A/d which the accused-petitioner received on 11.09.2003. Hence the case which was delayed by one day beyond the statutory period on account of advocates illness for which condonation was prayed for. (3) Mr. Addhaya took me to lease agreement to substantiate his point that by the agreement the complainant advanced a sum of Rs. 1,13,870/- by of a loan to the petitioner and the alleged cheque of Rs. 50,030/- had to be kept with the complainant only to secure the loan of Rs. 1,13,870/- which as per the statement of account furnished by the complainants company was paid way back in 1999 and in fact the alleged amount of Rs. 30,500/- said to be covered under the cheque was to all intents and purposes a security for advancing of loan which was already made payment of. (4) Mr. Ayan Bhattacharya, learned Advocate appearing for the O.P. No. 1 submitted that the submission of the learned Advocate for the petitioner that the loan of Rs. 1,13,870/- has been paid way back in 1999 and that a signed cheque for Rs. 30,500/- had only to be kept and deposited with the complainant for securing the loan of Rs. 1,13,870/- and that the alleged lease agreement did not dwell on any liability or debt of Rs. 1,13,870/- has been paid way back in 1999 and that a signed cheque for Rs. 30,500/- had only to be kept and deposited with the complainant for securing the loan of Rs. 1,13,870/- and that the alleged lease agreement did not dwell on any liability or debt of Rs. 30,500/- are the line of defence which in terms of the decision of the Honble Supreme Court in the State of M.P. vs. Awadh Kishore Gupta and Ors., 2004 SCC (Cri) 353 cannot be considered by the revisional Court because the Revisional Court, will only see with reference to the petition of complaint and the pre-summoning evidence of the witnesses under section 200 Cr. PC as to whether any cognizable offence to go for trial has been made out or not. My attention has already been drawn to the decision of this Court in Samarendra Nath Das vs. Supriya Mitra, 2006 (4) AICLR (Cal) 337 and Bibek Roychowdhury and Ors. vs. Virama Enterprises Put. Ltd., 2007 (2) E. Cr. N. 611. (5) Having heard the learned Advocates for the parties, I find that the submission of the learned Advocate for the petitioner that the amount covered under the bounced cheque was not a loan amount towards repayment of which there was any liability and that the actual loan amount of Rs. 1,13,870/- has been paid back in 1999 are really the line of defence sought to be established through the annexures to the revisional application which as observed in the decision of State of M.P. vs. Awadh Kishore Gupta and Ors. (supra) it was impermissible for the Court to look into in view of the fact that those annexures could not be treated as evidence and they are subject to test at the trial. The scope of the Revisional Court cannot be extended to embark upon an enquiry as to the veracity or otherwise of the case of a complainant alleging offences. The decision in State of Haryana and Ors. vs. Bhajanlal and Ors. 1992 AIR SC 604 gives a complete guideline in the matter of exercise of the revisional jurisdiction under section 482 of the Cr.P.C. while quashing of a criminal proceeding. The decision in State of Haryana and Ors. vs. Bhajanlal and Ors. 1992 AIR SC 604 gives a complete guideline in the matter of exercise of the revisional jurisdiction under section 482 of the Cr.P.C. while quashing of a criminal proceeding. The other argument that the complaint was barred by limitation could not be substantiated because in course of hearing it appeared that one days delay in lodging the complaint was condoned by the learned Magistrate upon consideration of the prayer of the complainant/O.P. herein. (6) In the circumstances, the revisional application is dismissed. Let the trial of the case be expedited. Appeal dismissed.