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2016 DIGILAW 209 (CAL)

Sourav Pradhan v. G. M. S. A. Pvt. Ltd.

2016-02-26

SHIB SADHAN SADHU

body2016
JUDGMENT : Shib Sadhan Sadhu, J. 1. This is an application filed by the present petitioner under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr. PC for the sake of brevity) seeking quashment of the proceeding being complaint case No. C-260 of 2006 under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the Act) now pending before the Court of learned Additional Chief Judicial Magistrate, Bidhannagar, North 24-Parganas. 2. The aforesaid case being case No. C-260 of 2006 was filed for offence under Section 138 of the Act. The allegation is that the accused/petitioner carries on business as M/s. Sourav Pradhan, C/o Sunil Pradhan, Kumarpur (Super Market), P.O Contai Super Market. P.s. Contai, District Purba Medinipur. The complainant had delivered various paddy seeds through challnas to the accused worth Rs.96,448/- and he issued two cheques being cheque Nos. 075263 and 013846 dated 04.08.2006 and 05.08.2006 respectively drawn on State Bank of India Contai Branch. When those cheques were presented for encashment those were dishonoured due to insufficiency of funds. Even after issuance of statutory notice, there was no payment. In such circumstances, the aforesaid case was filed before the Additional Chief Judicial Magistrate, Bidhannagar, North 24-Parganas. 3. I have heard Mr. Mritunjay Chatterjee, learned Counsel appearing for the petitioner and Mr. Prabir Adhya, learned Counsel appearing for the opposite party. I have also perused all the available materials on record including the impugned order and the cited decisions with meticulous care. 4. Mr. Chatterjee, learned Counsel appearing on behalf of the petitioner submitted that the petitioner/accused is a resident of Beguna, P.S: Mohanpur, Dist: Paschim Medinipur which is clearly outside the territorial jurisdiction of the learned Additional Chief Judicial Magistrate, Bidhannagar, North 24-Parganas. Therefore, in terms of the mandatory provisions as laid down under Section 202 of the Cr. PC it was obligatory on the part of the learned Magistrate to make further inquiry into the case by himself or by directing an investigation to be made by a police officer or by any other person for deciding whether or not there was sufficient ground for proceeding. But admittedly the learned Magistrate has not complied with such mandatory provision. Therefore, according to him, the impugned order is bad in law and is liable to be set aside. But admittedly the learned Magistrate has not complied with such mandatory provision. Therefore, according to him, the impugned order is bad in law and is liable to be set aside. He relied on the decisions reported in 2015 Law Suit (SC) 481 (Mehmood Ul Rehman & Ors. Vs. Khazir Mohammad Tunda & Ors.), (2013) 1 C. Cr. LR (SC) 510 (Udai Shankar Awasthi Vs. State of Uttar Pradesh & Anr.), (2013)1 C. Cr. LR (SC) 585 (National Bank of Woman Vs. Barkara Abdul Aziz & Anr. and in an unreported judgment of this Court passed on 13.03.2013 in C.R.R No.96 of 2012 with 14 others in the case of Anu Mehta Vs. Gunmala Sales Pvt. Ltd., in support of his contention. 5. Mr. Adhya, learned Counsel, representing the opposite party, on the other hand, submitted that the learned Magistrate held inquiry contemplated under the law before issuing the process and so the order issuing process cannot be faulted on the ground that no inquiry was held. 6. Having regard to the rival contention and submission advanced by the learned Counsels appearing on behalf of the parties in the light of the decisions placed, I would like to say at the very outset that the law is well-settled on the point that the use of the expression “shall” in Section 202 of the Cr. PC prima facie makes the inquiry or the investigation, as the case may be, by the Magistrate mandatory. 7. Chapter XV (Sections 200-203) relates to “Complaints to Magistrates” and covers cases before actual commencement of proceedings in a Court or before a Magistrate. Section 200 of the Code requires a Magistrate taking cognizance of an offence to examine the complaint and his witnesses on oath. Section 202, however, enacts that a Magistrate is not bound to issue process against the accused as a matter of course. It enables him before the issue of process either to inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether there is sufficient ground for proceeding further. The underlying object of the inquiry under Section 202 is to ascertain whether there is prima facie case against the accused. It thus allowed a Magistrate to form an opinion whether the process should or should not be issued. The underlying object of the inquiry under Section 202 is to ascertain whether there is prima facie case against the accused. It thus allowed a Magistrate to form an opinion whether the process should or should not be issued. The scope of inquiry under Section 202 is, no doubt, extremely limited. At that stage, what a magistrate is called upon to see is whether there is sufficient ground for proceeding with the matter and not whether there is sufficient ground for conviction of the accused. However, no specific mode or manner of inquiry is provided under Section 202 of the Code. 8. The aforesaid complaint was filed on 20th October, 2006 in the Court of Additional Chief Judicial Magistrate, Bidhannagar, North 24-Parganas. The learned Magistrate took cognizance of the offence and transferred the case to the Court of learned Judicial Magistrate, Bidhannagar for enquiry and disposal. On receipt of the record, the Transferee Magistrate proceeded with enquiry. On the said date, the complainant was present and he filed affidavit along with documents under Section 145 of the Act and thereafter, the learned Magistrate issued process against the accused person on being satisfied that a prima facie case for the alleged offence punishable under Section 138 of the Act was established. On 22nd August, 2007 the accused (present petitioner) surrendered and he was released on bail. Thereafter the case was adjourned to 14.09.2007 for appearance of the accused and for recording his plea. But the accused did not turn up on that day and on his prayer 5th October, 2010 was fixed for plea. On that day also the accused was absent. On the submission of the learned Counsel appearing for the accused that they had preferred revisional application before this Court being C.R.R. No. 3240 of 2007, the next date was fixed on 4th December, 2007 for bringing stay order, in default, for plea. On 4th December, 2007 the accused was examined under Section 251 of Cr. PC and the accused pleaded not guilty and so the case was adjourned to 5th January, 2008 for evidence. On 5th January, 2008, 18th February, 2008 and also on 20th March, 2008 the accused remained absent and so warrant of arrest was issued against him. He surrendered on 22nd May, 2008 and he was released on interim bail. PC and the accused pleaded not guilty and so the case was adjourned to 5th January, 2008 for evidence. On 5th January, 2008, 18th February, 2008 and also on 20th March, 2008 the accused remained absent and so warrant of arrest was issued against him. He surrendered on 22nd May, 2008 and he was released on interim bail. Thereafter the case was fixed for evidence but for non-appearance of the accused his interim bail was cancelled and warrant of arrest was issued against him on 07.11.2008. After a long time, he surrendered on 3rd January, 2014 and he was taken into custody and remanded to judicial custody till 8th January, 2014. On 8th January, 2014 the accused was granted bail and he was released on 13th January, 2014. On 31st January, 2014 which date was fixed for evidence the accused took the plea that his application under Section 205 Cr. PC was pending and that another case is pending between the parties in the Court of Chief Judicial Magistrate, Purba Medinipur and so he should be given opportunity to file application for transfer of the case. Those, pleas were however considered and rejected and the case was adjourned to 13th March, 2014 for evidence. For one reason or other the case was adjourned till 19th July, 2014 for evidence. But on that date the accused was absent and considering the conduct of the accused the learned Magistrate issued warrant of arrest against him fixing the date 15.09.2014 for E/R of warrant of arrest and the case is still pending for E/R of warrant of arrest. The last order was passed on 12.03.2015 fixing the date 07.05.2015 for E/R of warrant of arrest. Thereafter, the present revisional application has been filed on 23.03.2015. 9. Therefore, form the aforesaid factual episodes, it become crystal clear that the learned Magistrate held an inquiry as envisaged under Section 202 of the Code and only thereafter, he had directed for issuance of process. It is interesting to see that the petitioner did not feel aggrieved or prejudiced for such a long period since after the date of issuance of process against him but suddenly he woke up from slumber and became aware that he has been prejudiced or that for such alleged non-compliance failure of justice has been occasioned. But curiously enough the petitioner has not spelt out a single word for such inordinate inertia. But curiously enough the petitioner has not spelt out a single word for such inordinate inertia. As such it can be safely inferred that there was no prejudice or failure of justice in terms of Section 465 of the Cr. P.C. which may vitiate the proceeding or the order of issuance of process. 10. Therefore, relying on the latest decision of the Hon’ble Supreme Court reported in 2014(3) AICLR 107 (Vijay Dhankua v. Najima Mamtaj), I do not find any merit in the instant revisional application and the same is accordingly dismissed. 11. Keeping in view the age of the case and also the nature of the offence, the learned Judicial Magistrate Bidhannagar, North 24Parganas is directed to dispose of this case finally within 3(three) months from the date of communication of this order. 12. Criminal Section is directed to deliver urgent photastat certified copy of this judgment to the parties, if applied for, as early as possible, on compliance of all formalities. 13. Let a copy of this judgment be sent to the learned Judicial Magistrate, Bidhannagar, North 24-Pargans forthwith for information and compliance.