Calcutta High Court (Appellete Side)
Tarit Kumar Dey vs Nani Gopal & Anr on 4 August, 2022
Form No.J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Tirthankar Ghosh
CRA 203 of 2019
Tarit Kumar Dey
-vs-
Nani Gopal & Anr.
For the appellant: Mr. Satadru Lahiri
For the State: Mr. Anwar Hossain
Ms. Manisha Sharma
For the O.P. No.1: Mr. Aniket Mitra
Mr. Sk. Sahjahan Ali
Heard on: 4th August, 2022.
Judgment on: 4th August, 2022.
Tirthankar Ghosh, J.
The present appeal has been preferred challenging the
judgement and order of acquittal dated 10th January, 2019 passed by
the learned Judicial Magistrate, 1st Court, Contai, Purba Medinipur in
C. R. Case No. 110 of 2014 under Section 138 of the Negotiable
Instruments Act.
Record of this case reflects that by an order dated
01.07.2014, the learned Additional Chief Judicial Magistrate, Contai,
Purba Medinipur was pleased to take cognizance of the offence and
thereafter transferred the case to the learned Judicial Magistrate, 1st
Court, Contai.
By an order dated 08.09.2011, the learned Judicial Magistrate,
1st court, Contai after considering the affidavit on oath filed on behalf of
the complainant was pleased to issue process against the accused
person holding that prima facie a case under Section 138 of the N. I. Act
has been made out and fixed date on 07.11.2014.
Record reflects that on 10.12.2014, the accused appeared
before the learned Magistrate and was granted bail and on 10.04.2015,
the substance of the accusation was read out to the accused person
under Section 251 of the Code of Criminal Procedure to which he
pleaded not guilty and claim to be tried.
Record also reflects that the accused was subsequently not co-
operating with the progress of the trial of the case and the learned court
was pleased to issue warrant of arrest and as such, the trial could not
proceed till May, 2017. For another one year, the accused started
evading the court and as such the trial could not commence till May,
2018.
Record reflects that on 30th May, 2018, the complainant
examined himself as P.W.1 and five documents have been marked as
exhibits. The evidence of the complainant continued on 06.09.2018
and finally on 20th December, 2018, when the evidence of P.W.1 was
continuing a petition was filed at the instance of the accused. The
learned Magistrate by an order dated 10th January, 2019, surprisingly
ordered that the complaint case is not maintainable and is liable to be
dismissed and acquitted the accused from the case discharging him
from the bail bonds.
Without entering into the merits of the case, I am of the
opinion that once in summons procedure case, the learned Magistrate
has completed the stage of Section 251 of the Code of Criminal
Procedure and enters for adhering to the provisions of Section 254 of
the Code of Criminal Procedure, there is no scope for the learned
Magistrate to come to a finding summarily on a petition without
concluding the evidence holding either the accused guilty or not guilty
of the offence.
At this stage, it is incumbent upon the learned Magistrate to
complete the procedures enacted under the Code of Criminal Procedure
and come to a final conclusion after assessment of the evidence of the
case granting opportunity to both the prosecution and the defence.
The very entertainment of such application termed as
maintainability have been deprecated by the Hon'ble Supreme Court in
the cases of Adalat Prasad -vs- Rooplal Jindal & Ors. reported in
2004 7 SCC 338 and Subramanium Sethuraman vs State of
Maharashtra & Anr reported in 2004 13 SCC 324.
Having regard to the settled proposition of law as also the
manner in which in the midst of evidence, the learned court has
assessed the evidence of the case on a petition filed by the accused is
against the basic structure of the Code of Criminal Procedure and as
such, the order dated 10th January, 2019 is liable to be set aside.
Needless to state that this court has not gone into the merits of
the case so far as the points which were considered by the learned
Magistrate regarding statutory compliance under Section 138 and
Section 142 the N. I. Act. The same is subject matter of consideration at
the time of final argument of the case after examination under Section
313 of the Code of Criminal Procedure and examination of defence
witnesses.
Thus, the appeal being CRA 209 of 2019 is allowed. The
learned Magistrate would issue fresh notice upon the accused
preferably within a period of one month from the date of the
communication of this order, complete the process of trial within a
period of one year from the date of appearance of the accused and arrive
at its findings.
Department is directed to send back the lower court records and
communicate this order to the learned trial court within a period of
seven days from date.
All concerned parties shall act in terms of the copy of the order
downloaded from the official website of this Court.
[Tirthankar Ghosh, J]
Subha.
