Calcutta High Court (Appellete Side)
Mrs. Bilu Bhattacharjee vs The State Of West Bengal & Anr on 20 February, 2023
20.02. 2023
item No.20
n.b.
ct. no. 551 CRR 2286 of 2017
Mrs. Bilu Bhattacharjee,
Vs.
The State of West Bengal & Anr.
Mr. Jayanta Narayan Chatterjee,
Ms. Nandini Chatterjee,
Mr. Supreem Naskar,
Ms. Sreeparna Gjhosh,
Ms. Pritha Sinha,
Ms. Tanuja Banerjee,
Mr. Bhaskar Mondal,
... for the petitioner.
Affidavit of service filed on behalf of the petitioner be kept
with the record.
Learned advocate on behalf of the petitioner submits that
the instant revisional application filed under Section 397/401 of
the Code Criminal Procedure read with Section 482 of the Code of
Criminal Procedure preferred against the order passed by the
learned Additional Sessions Judge, Fast Track 3 rd Court at Alipore
in Criminal Appeal No.70 of 2011 thereby setting aside the
judgment and order dated 21.4.2011 passed by the Learned
Judicial Magistrate, 3rd Court at Alipore and remanding back the
case of the learned Trial Court.
Learned advocate for the petitioner further submits that
the opposite party no.2 has preferred an application before the
learned Magistrate under Section 138 of N.I. Act, against the
present petitioner. The case was heard by the learned Magistrate
and after hearing the learned Magistrate has acquitted the present
petitioner from this case and he has also discharges him from his
liabilities. The present opposite party no.2 preferred the appeal
before the Additional Sessions Judge, Fast Tract 3 rd Court against
the said order of acquittal. The learned Additional Sessions Judge
set aside the order of acquittal and remand back the case to the
learned Magistrate for retrial.
It is the submission of the learned advocate for the
petitioner that the order passed by the learned Sessions Judge is
without jurisdiction and the order passed by the learned Sessions
Judge also not in conformity with the previsions of the Code of
Criminal Procedure. He again argued that in several occasions this
Court has passed the order that the order of acquittal passed by
the learned Magistrate a case initiated under Section 138 of the N.I.
Act cannot be preferred before the learned Sessions Judge but it
must be preferred before the Hon'ble High Court. However, he
cited a decision passed by this Court in CRR No.3587 of 2018 in
the matter of Ms. Todi Investors Vs. Ashis Kr. Dutta & Anr.
Heard the learned advocate perused the judgment passed
referring judgment of Apex Court in (2013) 2 SCC 2017 and Smt.
P. Vijauya Laxmi Vs. Smt. S.P. Sravana, by this Court, the point of
law has specifically discussed and determined in this case that "a
complainant in a case under Section 138 of N. I. Act is not entitled
to file an appeal against the acquittal according to the provisions of
Section 372 of the Code of Criminal Procedure rather he may prefer
an appeal before the order of Hon'ble High Court to invoking the
provision of Section 378(4) of the Code of Criminal Procedure."
Considering the view of the Hon'ble Supreme Court and
by this Court the, impugned order passed by the Learned
Additional Sessions Judge appears to me illegal and in appropriate
according to the provisions of the Code. Hence I find merit to
entertain the instant criminal revisions application. Accordingly the
instant criminal revisional is allowed. The impugned order passed
by the learned Additional Sessions Judge in a criminal appeal
No.70 of 2011 is hereby set aside. The order passed by the learned
Magistrate, 3rd Court at Alipore in case no. C 7498/07
corresponding to T.R. 1673 of 2007 on 21.4.2011 is hereby
affirmed.
Accordingly, CRR 2286 of 2017 is dispose of.
The interim order, if any, passed by this Court is also
hereby vacated.
All parties shall act on the server copy of this order duly
downloaded from the official website of this Court.
( Subhendu Samanta, J.)
