Calcutta High Court (Appellete Side)
Arnab Banerjee vs Samir Saha on 2 February, 2023
1
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Present: - Hon'ble Mr. Justice Subhendu Samanta.
C.R.R. No. - 2804 of 2018
IN THE MATTER OF
Arnab Banerjee.
Vs.
Samir Saha.
For the petitioner : Mr. Deepak Prahladka, Adv.,
Ms. Reshmi Khatun, Adv.
For the opposite Party No. 2 : Mr. Moyukh Mukherjee, Adv.,
Mr. Sarthak Mondal, Adv.
Judgment on : 02.02.2023
Subhendu Samanta, J.
This is an application u/s 482 of the Criminal Procedure
Code preferred against judgment dated July 2018 passed by the
Learned Additional Sessions Judge Fast track Court No. (ii)
Calcutta in criminal revision No. 304 of 2017 filed by the
petitioner against the order dated 21st September 2017 passed
by the Learned Metropolitan Magistrate 6th Court Calcutta in a
complaint case No. C- 449/2013 convicting the present
petitioner for having committed an offence punishable u/s 138
of Negotiable Instrument Act and sentencing him to pay
compensation of Rs. 2,50,000/- to the complainant in default to
suffer S.I for three months.
The brief fact of the instant revision is that the present
respondent filed a complaint case u/s 138 of N.I Act before the
Learned CMM Calcutta thereafter, the same was transferred to
Learned M.M. 6th Court Calcutta for disposal. A cheque was
issued by the present petitioner amount to Rs. 1,48,000/- to the
respondent which was dishonoured and hence the complaint
was initiated. The proceeding was started before the Learned
M.M. 6th Court and the evidence in chief of the respondent was
filed. He was cross examined in part by the Learned Advocate of
the present petitioner and the cross examined could not
concluded. However, Learned Magistrate refuses to grant
further adjournment for cross examination and close his
evidence. Thereafter, the petitioner was examined u/s 313
Cr.P.C. After hearing argument for both the parties Learned
Magistrate convicted the present petitioner for having
committed an offence punishable u/s 138 of N.I. Act and
sentenced him to compensation of Rs. 2,50,000/- in default to
suffer simple imprisonment for three months. Against the said
judgment the petitioner filed one criminal revision being No. 304
of 2017 before the Learned Chief Judge, City Sessions Court,
Calcutta. The revision was heard by the Learned Sessions
Judge, Fast Track 2nd Court Calcutta who passed the impugned
judgment by dismissing the criminal revision.
Hence this appeal.
Learned Advocate for the petitioner frankly submits that
as per the direction of this Hon'ble Court. He has paid the entire
cheque amount to the respondent. He further submitted before
this court that the reasonable opportunity was not given to the
present petitioner to cross examine the P.W- 1. He again pointed
out that, if the P.W.-1 was sufficiently cross examined the order
of the Learned Magistrate would be otherwise. He again pointed
out that there are sufficient materials to brought before the
Learned Magistrate through the mouth of the P.W.-1. He further
pointed out to elicit the truth the present petitioner may be
allowed to cross examine the respondent for a single day. He
against pointed out that he has already deposited the entire
cheque amount, so no injury would be caused upon the
respondent if the present petitioner was allowed an opportunity
to cross examine the P.W.-1. It is the submission of the
petitioner that, one litigant shall not be suffered for the conduct
of a lawyer.
Learned Advocate appearing on behalf of the respondent
raised on objection. He submitted that several opportunities
were given to the petitioner/accused to cross examine the
respondent. It would be revealed from the LCR that the Learned
Advocate for the present petitioner cross examined the
respondent for two days. Thereafter, he prayed for
adjournments. He again pointed out that Learned Magistrate
without finding no other alternative close evidence P.W.-1 and
fixed the date for examination of the accused/petitioner u/s 313
Cr.P.C. He again argued that there are scope for the present
petitioner u/s 311 Cr.P.C. to adduce his evidence but he had
not avail the opportunity. He also appeared before the Learned
Magistrate for recording his statement u/s 313 Cr.P.C. No
explanation was given by the present petitioner/accused during
the course of recording statement u/s 313 Cr.P.C. regarding the
issuance of alleged cheque. He again pointed out that the
Learned Magistrate has specifically observed that as the order
for closing of evidence of P.W- 1 was not challenged by the
present petitioner/accused, the same cannot be revive at this
later stage.
Heard, the Learned Advocates perused the certified copy
of the impugned order, I have also perused the certified copy of
order passed by the Learned Magistrate in Case No. C/449 of
2013.
This Court is exercising its revisional jurisdiction. During
exercising this power the court is to look into the impropriety
and illegality of the impugned judgment passed by the Learned
Additional Sessions Judge, Fast Track 2nd Court Calcutta
affirming the judgment of conviction passed by the Learned
Metropolitan Magistrate 6th Court Calcutta. No illegality or
impropriety is found in the said judgments. The Learned
Advocate for the petitioner also not raised any illegality in the
impugned judgment. It is only submitted by the Learned
Advocate for the petitioner to award him an opportunity so that
he can cross examine the P.W 1 further. It appears from the
LCR that the P.W 1 was cross examined by the Learned
Advocate for the petitioner for two days. Thereafter an
adjournment was sought for by the Learned Advocate for the
petitioner/ accused and such adjournment was allowed for
more than 11 times by the Learned Magistrate. Thereafter, the
Learned Magistrate finding no other alternative close the
evidence of P.W 1 and posted the dates for examination of the
accused u/s 313 Cr.P.C. It further appears that,
accused/petitioner appeared before the Learned Magistrate
consequently, he was well aware at that time regarding order of
closing the evidence of P.W. 1 consequently,
misconduct/misinstruction of Learned Advocate does not arise.
By virtue of filing of this instant criminal revision the
present petitioner actually wanted to set aside the order passed
by the Learned Magistrate closing the evidence of P.W 1. It is
true that the present petitioner/ accused did not raise this
question at the time of his examination u/s 313 Cr.P.C and he
also not file any application for recalling any witness u/s 311 of
the Cr.P.C.
Thus in my view the petitioner/ accused has lost his
opportunity to re-call the P.W. 1 during appropriate time.
Further more, if the required opportunity is given to the
petitioner to further examine the P.W 1, the proceeding would be
initiated de-novo; which is not permitted in the facts and
circumstances of this case.
Considering the same I find it no justification to entertain
the prayer of the petitioner in this later stage.
In result thereof the instant criminal revision is devoid of
merit and it is liable to be dismissed.
CRR dismissed.
Connected pending CRAN applications if any, are also
disposed of.
Any order of stay passed by this court during the
continuation of the instant criminal revision is also vacated.
Parties to act upon the server copy and urgent certified
copy of the judgment be received from the concerned Dept. on
usual terms and conditions.
(Subhendu Samanta, J.)
