Research › Search › Judgment

Calcutta High Court · body

2010 DIGILAW 1244 (CAL)

Statesman Limited v. The State of West Bengal

2010-10-04

ASHIM KUMAR ROY

body2010
Judgment : 1. The subject matter of challenge in this case is an order passed by the Learned Additional Chief Metropolitan Magistrate, Calcutta rejecting the petitioner’s application under Section 311 of the Code of Criminal Procedure, in connection with a proceeding under Sections 138/141 of the Negotiable Instruments Act. 2. Heard the Learned Counsel appearing on behalf of the petitioner as well as the Learned Counsel appearing on behalf of the complainant/opposite party no. 2. 3. It is submitted by the Learned Counsel of the petitioner referring to the averment made in Paragraph 5 of the application under Section 311 of the Code of Criminal Procedure that the complainant in his cross-examination stated that he received a demand draft equivalent to the amount of the impugned cheque/cheques of the instant case as per the meeting held on June 21, 2005, but he was silent on the point of the statement of accounts of his banker and he has not produced any witness from the bank though he encashed and realized the said draft amount and as such the production of the statement of accounts of the bank are very much essential for just decision of the case. According to him the rejection of his prayer under Section 311 of the Code has caused serious prejudice to the petitioner and the said order is liable to be set aside. On the other hand, the Learned Counsel for the opposite party vehemently opposed the prayer for quashing and submitted the petitioner has taken a dilatory tactics to stall the conclusion of the trial and has moved this application at a very belated stage, when the matter was pending for delivery of the judgement. 4. It is well settled that at any stage before pronouncement of the judgement the provisions of Section 311 of the Code can be invoked by the Court but of course such provisions can only be invoked where a Court finds the same is necessary for just decision of the case and not to allow the parties to fill up the lacunas in their case or for any other purposes. During the hearing of this case the Learned Counsel of the petitioner produced the certified copy of the deposition of the complainant, who was examined as P.W. 1. During the hearing of this case the Learned Counsel of the petitioner produced the certified copy of the deposition of the complainant, who was examined as P.W. 1. Now having regards to the evidence of the said witness during his crossexamination I found as follows and the same is quoted below; “On 21.06.2005 there was a meeting of both sides regarding the compromise of the matter. After the talk of compromise the complainant got the cheque amount by demand draft. The cheque amount were of Rs 7 lakhs and Rs. 63,000/-. After meeting the cheque amount was given with two postdated cheques. Not a fact that the entire cheque amount was returned by D.D. and for the security of Rs. 93,750/- and Rs. 63,750/- being cheque No. 019841 dated 3.7.05 and No. 019842 dated 3.8.05 respectively were given. Not a fact that we accepted the D.D. and the cheque with the understanding that the case will be withdrawn on the next date.” It appears in the instant case the two cheques were dishonoured, viz., cheque No. 241714 dated January 1, 2004 for Rs. 7,00,000/- and cheque No. 241717 dated January 1, 2004 for Rs. 63,000/-. However, from the crossexamination of the P.W. 1, the complainant, it appears according to the said witness the two cheques for Rs. 93,750/- and Rs. 63,750/- were received after a meeting held on June 21, 2005, but the witness denied that he accepted the said demand draft with the understanding the case will be withdrawn on the next date. Whether the said cheques were received on an undertaking to withdraw the case or not, is a pure question of fact and cannot be gone into at this stage. It is a settled position subsequent payment of the cheque amount, either fully or partly, after filing of the complaint is no ground for quashment of the proceedings and at best same be considered to be a mitigating circumstance while the question of imposition of sentence arises. This criminal revision has no merit and accordingly stands dismissed. Interim order, if any, stands vacated. Criminal Section is directed to deliver urgent Photostat certified copy of this Judgement to the parties, if applied for, as early as possible.