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2011 DIGILAW 1508 (CAL)

Sibani Purkayastha v. Indrajit Mitra

2011-12-13

KANCHAN CHAKRABORTY

body2011
JUDGMENT: Kanchan Chakraborty, J. 1. THIS application Under section 482 of the Criminal Procedure Code for quashing of the proceedings in C/965 of 2010, pending in the court of the Ld. Judicial Magistrate, no-5, Alipore, 24-Parganas (south) has been taken out by Smt. Sibani Purkayastha , who has been made accused in the case, mainly, on the grounds, stated below :- (a) that the cheques in dispute were stolen by the complainant from his house in July,2009 and one General Diary was recorded to that effect in the local P.S.; (b)that there is no legally enforceable debt/liability to be discharged by petitioner; (c)that she has been falsely implicated in this case and continuance of the proceedings will be abuse of the process of the court. 2. MR. Dinendra Nath Chatterjee , Ld. Counsel for the petitioner contended that in case it is clearly found that the proceeding is entirely and absolutely false, question of continuation of such a proceeding does not arise as that would be amounting to gross miscarriage of justice. In order to prevent such frivolous and false criminal case, court should exercise its extraordinary power and quash the same. He has drawn attention of his court to the annexures to the application and submitted that ex facie, it appears that the cheques were stolen cheques and the police station concerned was informed about the stolen chuques then and there and that too, long before filing of the case. It is trite law that high court may exercise its extraordinary power under section 482 in exceptional cases and sparingly. A criminal action can not be thwarted at the inception unless the allegations and aspersions set forth in the petition of the complaint even accepted in their face value and uncontroverted, does not make out any case against the accused. Therefore, it is necessary to look at the petition of complaint in order to ascertain whether or not any case, prima facie, is made out under section 138 of the N.I. act against the accused/petitioner. 3. Therefore, it is necessary to look at the petition of complaint in order to ascertain whether or not any case, prima facie, is made out under section 138 of the N.I. act against the accused/petitioner. 3. ACCORDING to the petition of complaint, in the month of January, 2009, at the request of the petitioner, complainant provided him with a loan of Rs.1,42,000 and the petitioner, in order to repay the loan, issued one cheque of Rs.142000/- in the name of the complainant dt.10.06.2009 which he presented to his banker for encashment on 01.12.2009 but, the same was returned by the bank unpaid with an endorsement -Payment stopped by drawer -on 04.12.09. 4. THE complainant issued demand notice within 15 days from the date of such information which was received by the petitioner who, however, failed to make payment within the time stipulated. THE complaint was filed thereafter in order to prosecute the petitioner under section - 138 of the N.I.Act within one month thereof. A cursory perusal of the petition of complaint and the set of facts unequivocally averred therein altogether makes it clear that all the essential ingredients constituting an offence under section 138 of the N.I.Act are existing in the petition of complaint. As such, it can not possibly be said that no case, prima facie, is made out against the petitioner. On the contrary, a specific case is made out and that is sufficient for the Magistrate to take further action. 5. THE petitioner has taken a specific plea that the disputed cheques were stolen by the complainant long before the same were presented in the bank, as alleged. Copies of G.D.Entry and information to the local police station have been made annexures in support of such plea. No doubt, the petitioner can take such a stand in a trial but, that can not be a ground for quashing of the proceedings of like nature because the specific stand taken by the petitioner is subject to strict proof and for that, evidence is required to be recorded by the court. This court, in such a circumstances, is not supposed to embark upon the evidence of the parties to the case and judge the merit of the case like a trial court or an appellate court. THE case of the petitioner can well be made out during the trial by the petitioner. This court, in such a circumstances, is not supposed to embark upon the evidence of the parties to the case and judge the merit of the case like a trial court or an appellate court. THE case of the petitioner can well be made out during the trial by the petitioner. Again, whether or not, the demand notice is adequate is also a question to be decided by the trial court. Apparently, there is no illegality in the notice. THErefore, this court does not find any reason to stop the proceedings at this stage as sought for by the petitioner. 6. THIS does not appear to be proper case where the proceedings should be quashed by invoking the provisions of the section 482 of the Code. Accordingly, the application fails and stands dismissed. No order as to cost is passed. Urgent photo-copies be supplied to the parties after observing the usual formalities.