Sri Natakrishna Parua vs Krishna Pada Samanta & Anr
2021 Latest Caselaw 4951 Cal

21.09.2021 item No.226 n.b.

ct. no. 34

CRR 124 of 2019 With IA No. CRAN 2 of 2019 (Old No. CRAN 4155 of 2019) + IA No. CRAN 3 of 2020 + IA No. CRAN 4 of 2021

(via video conference) Sri Natakrishna Parua

-Vs-

Krishna Pada Samanta & Anr.

Mr. Probal Kumar Mukherjee Mr. Somnath Roy Chowdhury Ms. Arpita Chowdhury .....For the Petitioner Mr. Arijit Ganguly Mr. Sanjib Kumar Dan .....For the State Mr. Arindam Jana Mr. Sumanta Das .....For the Opposite Party

Mr. Mukherjee, learned Senior advocate appearing for the

petitioner challenges the viability of the petition/complaint

preferred under Section 138 of the Negotiable Instrument Act in

view of the averments made in the petition of complaint in respect

of two notices.

Learned Senior advocate has drawn the attention of this

Court to paragraphs 8, 9 and 10 of the petition of complaint and

tried to emphasize that the notice dated 25.09.2007 was the

foundation of the petition of complaint and the notice itself is bad

in law in view of the fact that the same was issued after the

statutory period prescribed under the Act was over. Learned

advocate further submits that there is non-compliance of the

provisions of Section 138(b) of the Negotiable Instrument Act and,

as such, the further continuance of the proceedings should be

quashed.

Mr. Jana, learned advocate for the complainant/opposite

parties submits that the case presently has proceeded to the stage

of defence witnesses and the prosecution witness has already been

completed, as also the examination of the accused under Section

313 of the Code of Criminal Procedure.

Having regard to the stage of the case before the learned

Trial Court, I am of the view, at this stage it would not be fit and

proper to express any opinion on the merits of the case and

quashing at this stage is practically impossible.

However, the issues so canvassed by the petitioner is

mixed question of fact and law, as to which notice gives rise to the

cause of action, whether it is the first notice dated 01.09.2007 or

the second notice dated 25.05.2007 issued by the complainant, is

to be decided at the trial. The learned Trial Court from the

materials so adduced by the prosecution and rebutted by the

defence would consider the same in the background of the other

facts appearing in evidence and decide the issue.

The petitioner would be at liberty to agitate such points

along with the other points which have been canvassed in the

revisional application at the stage of final arguments of the case

and the learned Magistrate would independently consider the

issues without being swayed by any observation made by this Court

while disposing of this revisional application.

The learned Magistrate would definitely before delivering

the judgment, arrive at a opinion whether any offence under the

provisions of Section 138 of the N.I. Act has been made out and the

statutory parameters laid down therein had been adhered to by the

complainant.

With the above observations, CRR 124 of 2019 is disposed

of.

The learned Magistrate is directed to take the trial and/or

conclude the final arguments of the case within a reasonable period

of time.

Interim order, if any, stands vacated.

All pending connected applications, if any, are

consequently disposed of.

All parties shall act on the server copy of this order duly

downloaded from the official website of this Hon'ble Court.

( Tirthankar Ghosh, J.)