Md. Sadrul Alam Khan & Anr vs The State Of West Bengal & Anr
2022 Latest Caselaw 515 Cal

Form No. J(2)

IN THE HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDICTION

Present:

The Hon'ble Justice Jay Sengupta

C.R.R. 378 of 2022

Md. Sadrul Alam Khan & Anr.

-vs-

The State of West Bengal & Anr.

For the Petitioners          : Mr. Baidurya Ghosal
                              Mr. P. Sinha Roy




Heard on                     : 11.02.2022


Judgment on                  : 11.02.2022




Jay Sengupta, J.:

This is an application challenging an order dated 18.02.2021

passed by the Learned Metropolitan Magistrate, Kolkata in Complain

Case No. CS/72712/2018 under Section 138 of the Negotiable

Instruments Act.

Learned counsel appearing on behalf of the petitioners submits

as follows. The petitioners are the accused in this case. Prior to the

lodging of the present application, the petitioner no. 1 had lodged a

GD Entry that certain cheque leafs belonging to him were misplaced

from his custody. After some time, he received a summon in the

present case. The complainant is a neighbour of the petitioners and

was in visiting terms. In view of such facts, the petitioners filed an

application before the learned Magistrate claiming that the petition of

complaint was not maintainable. However, such prayer was turned

down erroneously. No prima facie case is made out against the

petitioners as would be evident from a plain reading of the petition of

complaint and any further continuation of the impugned proceeding

shall be an abuse of the process of the Court.

I have heard the submissions of the learned counsel appearing

on behalf of the petitioners and have perused the revision petition.

First, a Learned Magistrate cannot recall a process issued by

him. This would amount to recalling or reviewing his own order,

which is not permissible in law. Reliance is placed on the ratio laid

down in Adalat Prosad, (2004) 7 SCC 338.

The petitioners further contended that the cheque that was the

subject matter of the present case was one which he had lost earlier

and he had lodged a GD Entry about this prior to the lodging of the

present complaint.

Whether the petitioners actually lost the cheque leaf before the

institution of the case or had lodged the GD Entry to set up a

subsequent plea that the cheque had been lost would be disputed

questions of fact that cannot be dealt with in an application under

Section 482 of the Code of Criminal Procedure. These can only be

decided during the trial.

In view of the above, I do not find any merit in this application.

Accordingly, the revisional application is dismissed.

However, there shall be no order as to costs.

Urgent photostat certified copy of this order may be supplied

to the parties expeditiously, if applied for.

(Jay Sengupta, J.)

tbsr