Dr. Madhu Jyostna Marjara vs The State Of West Bengal And ...
2022 Latest Caselaw 5665 Cal

Form No.J(1)

                         IN THE HIGH COURT AT CALCUTTA
                         CRIMINAL APPELLATE JURISDICTION


Present:

The Hon'ble Justice Tirthankar Ghosh


                            C.R.A. (SB) 100 of 2022


                           Dr. Madhu Jyostna Marjara
                                      versus
                      The State of West Bengal and another


For the Appellant          : Mr. Manik Lal Poddar.

For the State              : Ms. Anasuya Sinha,
                             Ms. Jonaki Sha.


Heard On             :     22.08.2022.

Judgement On         :     22.08.2022.



       Tirthankar Ghosh, J. :


                The present appeal has been preferred against the judgment

and order dated 18th May, 2022 passed by the learned Metropolitan

Magistrate, 17th Court, Calcutta in Case No.CS-55539 of 2016 under

Section 138 of the Negotiable Instruments Act.

                Mr. Manik Lal Poddar, learned advocate appearing for the

appellant drew the attention of this Court to the order dated 18.05.2022
                                       2



wherein the learned Magistrate was pleased to acquit the accused

person under Section 256(1) of the Code of Criminal Procedure.

              Pursuant to the order dated 08.08.2022, the Inspector-in-

Charge, Kharagpur Town Police Station submitted a report wherein it

has been contended that the police authorities had been at the address

provided in the cause title. However, it was informed to them that the

respondent no.2 has left the house long back.           The police authorities

tried to serve upon the father of respondent no.2, that is, Avijit Bagchi,

but he refused to receive the same, as the whereabouts of the

respondent no.2 was not known to him.

In view of the aforesaid, this Court decided to proceed with

the appeal.

Let the report be kept with the record.

The order dated 18.05.2022 reflects that the accused at the

relevant date was represented through his advocate under Section 317 of

the Code of Criminal Procedure and the stage of the case was fixed for

evidence after the examination under Section 251 of the Code of

Criminal Procedure was completed by the learned Magistrate on an

earlier date. The said order also reflects that on 07.01.2021 the

complainant was directed to show cause as to why the complaint case

should not be dismissed for non-prosecution. A reply of the show cause

was filed on 07.01.2021. The learned Magistrate has recorded that on

perusal of the record it reflected that the show cause was also not

accepted by the court. The complainant was also absent on 18.05.2022

and having regard to her conduct, the court was of the opinion that the

complainant has lost interest in pursuing the litigation and, as such,

dismissed the complaint case for non-prosecution and acquitted the

accused under Section 256(1) of the Code of Criminal Procedure.

Mr. Manik Lal Poddar, learned advocate appearing for the

appellant submits that the appellant was interested in pursuing the

litigation, however, for reasons beyond her control, there was

miscommunication with the learned advocate and, as such, she could

not take effective steps before the trial court. It has also been brought to

the notice of the court that the appellant has suffered a loss of

Rs.7,50,000/- which has financially caused hardship to the appellant

and she intends to pursue the litigation which she was unable for

reasons stated above and at least the appellant must be granted an

opportunity to prove her case on merits.

Having regard to the submissions advanced by the learned

advocate for the appellant and the fact that for a substantial period of

time the courts were operating in a staggered manner in the years 2020

and 2021, there was every possibility of miscommunication between an

advocate and the litigant. Having regard to the same, I am of the opinion

that an opportunity must be granted to the appellant to prove her case

on merits.

Accordingly, the order dated 18.05.2022 dismissing the

complaint case being CS Case No.55539 of 2016 for non-appearance of

the complainant/appellant under Section 256(1) of the Code of Criminal

Procedure is hereby set aside.

Consequently, CRA (SB) 100 of 2022 is allowed.

The complainant is directed to be present before the learned

Metropolitan Magistrate, 17th Court, Calcutta on 14th September, 2022.

Learned Magistrate would issue notice upon the accused to appear and

thereafter proceed with harsher process of law for compelling the

appearance of the accused and progress with the case for taking it to its

logical conclusion within a reasonable period of time. Needless to state

that the complainant undertakes to appear on each and every date

before the learned Magistrate without any fail except circumstances

beyond her control.

Pending application, if any, is consequently disposed of.

Urgent photostat certified copy of this judgment, if applied

for, be given to the parties upon compliance of all requisite formalities.

(Tirthankar Ghosh, J.)