Mr. Kushal Ratanshi Dharod & Ors vs The State Of West Bengal & Anr
2021 Latest Caselaw 6075 Cal

06.12.2021
 S/L No.17
KS                                     (Via Video Conference)
                                         C.R.R.102 of 2019

                                 Mr. Kushal Ratanshi Dharod & Ors.
                                              -Vs.-
                                 The State of West Bengal & Anr.



                                       Mr. Sudipto Moitra
                                       Mr. Sandip Kumar Bhattacharya
                                       Mr. Apalak Basu
                                       Mr. Dipta Banerjee
                                                          .....For the Petitioners




                   Learned senior counsel for the petitioners is present. The

             matter appears under the heading "Listed Motion".

                   Learned counsel for the petitioners submits that the

             petitioners filed the criminal revision being aggrieved with an order

             dated 14.02.2017 passed by the learned Judicial Magistrate, 2 nd

             Court, Alipore, South 24 Pargnas in a complaint case bearing

             No.443 of 2017 against the petitioners under Section Sections 138

             and 141 of the Negotiable Instruments Act. It is submitted that the

             petitioners in this criminal revisional application has prayed for

             quashing of the proceeding in complaint case no.443 of 2017

             pending before the learned Judicial Magistrate, 2 nd Court, Alipore,

             South 24 Parganas. The main contention of the petitioners is that

             the petitioner no.1 is a proprietor of Oxygen Realty who is said to
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have issued cheque no.052705 dated 28.11.2016 for a sum of

Rs.12,50,000/- in favour of opposite party no.2. The petitioner nos.2

and 3 are in no way related to the firm represented by the petitioner

no.1 and are residents of Pune.

         Learned counsel also submits that the complainant/O.P. No.2

has wrongly filed the complaint against the petitioners and the

same is not maintainable against them.

          According to the petitioners, the criminal revisional

application should be admitted due to the fact that the petitioner

nos.2 and 3, not being related to the proprietorship business of the

petitioner no.1 and not having issued the cheque have been

wrongly impleaded as accused, leading to abuse of the process of

the Court. The second contention of the petitioners is that since

petitioner nos.1 to 3 are residents of Pune, the learned Magistrate

ought to have held an enquiry under Section 202(2) of the Criminal

Procedure Code, before issuing summons against the present

petitioners.

         I have perused the application for the criminal revision, the

documents file and considered the submissions made by learned

counsel for the petitioners which will be taken into account at the

appropriate time. Whether the cheque issued by the petitioner no.1

in favour of opposite party no.1 was under duress are matters of

trial.   At this stage, it prima facie appears that a cheque had been
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issued by the petitioner no.1 in favour of the opposite party no.2,

the complaint towards repayment of dues.

       In the case of Sunil Todi & Ors. Vs. State of Gujarat & Anr.

(Criminal Appeal No.1446 of 2021), the Hon'ble Supreme Court in

paragraph 38 of the judgment observed that: "Section 145 N.I. Act

provides that evidence of the complainant may be given by him on

affidavit, which shall be read in evidence in an inquiry, trial or other

proceeding notwithstanding anything contained in the Cr. P.C.          The

Constitutional Bench held that Section 145 has been inserted in the Act,

with effect from 2003 with the laudable object of speeding up the trials in

complaint filed under Section 138....."

       It is further observed that: ".....if the evidence of the

complainant may be given by him on affidavit, there is no reason for

insisting on the evidence of the witnesses to be taken on oath.

Consequently, it was held that Section 202(2) of the Cr. P.C. is

inapplicable to complaint under Section 138 in respect of the examination

of witnesses on oath". In the said case it was held by the Hon'ble

Supreme Court of India that if the Magistrates hold of enquiry

himself, it is not compulsory that he should examine witnesses in

considerable cases. The Magistrate can examine the documents to

be satisfied that there are sufficient grounds for proceeding under

Section 202.
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      In view of the decision of the Hon'ble Supreme Court it

would not be mandatory on the part of the Magistrate to hold an

enquiry under Section 202 (2) of the Criminal Procedure Code as

specified in Section 145 of the N.I. Act. However, the petitioners

have a legal right to assail a proceeding initiated against them in the

form of complaint before the Court of a Magistrate.

      In such circumstances, let the C.R.R.102 of 2019 be admitted.

Issue notice upon the opposite party/respondent nos.1 and 2

directing O.P No.2 to show-case as to why the prayer for quashing

of the complaint case No.443 of 2017 shall not be allowed.

The matter be listed on 20.01.2022 for filing affidavit of

service and affidavit in opposition, if any.

(Ananda Kumar Mukherjee, J.)