Chandan Mitra vs The Idbi Bank Limited And Ors
2023 Latest Caselaw 1523 Cal

01.03.2023
BMJR
Court no.28
Item no.1                               CRR 1034 of 2015
                                                With
                                        CRAN 2345 of 2015

                                          Chandan Mitra
                                                Versus
                                  The IDBI Bank Limited and Ors.




                       Nobody appears for the parties.



                       Parties also not appeared on previous several dates.



                        In view of the aforesaid facts, nature of relief sought for and

              to avoid further delay, I am inclined to dispose of this matter on

              merit.



                       The petitioner has filed this application under Article 227 of

              the Constitution of India feeling aggrieved by the judgment and

              order dated 03.03.2015 passed by the learned Additional District

              and Sessions Judge, 2nd Fast Track Court, Bichar Bhawan, Calcutta

              in Criminal Revision Case No. 152 of 2014 thereby the learned

              Judge dismissed the criminal revision and affirmed the order dated

              29.08.2014 and 31.10.2014 passed in Complaint Case No. C/13023

              of 2009 and directed to appear before the learned Court of 12 th

              Metropolitan Magistrate, Calcutta wherein case is pending for non-
                            2




payment of cheque amounting to Rs. 2,06,125/- (Rupees two lakh

six thousand one hundred twenty five only) drawn on UTI Bank Ltd.

in connection with personal loan agreement no. 815675100040600.



      It appears from the record that the complainant examined the

prosecution witness. After completion of the evidence, date was

fixed for examination of the accused under Section 313 of the Code

of Criminal Procedure, when present petitioner fails to lead any

defence witness on the date fixed.



       It is the contention of the petitioner that he had not received

any demand notice as the petitioner was out of India that is in,

Mascot, Oman. Accordingly, petitioner filed an application under

Section 311 of the Code of Criminal Procedure praying for

examination of petitioner as defence witness along with documents

but such prayer was rejected by the learned Trial Court on

29.08.2014

and after examination of the petitioner under Section

313 of the Cr.P.C. a date was fixed for delivery of judgment on

31.10.2014 but petitioner could not appear before the learned Court

below on the date fixed for judgment. Consequently, Learned

Magistrate issued warrant against the petitioner/accused to secure

his attendance. Accordingly, petitioner filed revision application

challenging such orders dated 29.08.2014 and 31.10.2014 before

the Learned Chief Judge, City Sessions Court, Calcutta and the

same was subsequently transferred to the Learned Additional

District and Sessions Judge, 1st Fast Track Court at Bichar

Bhawan, Calcutta for disposal.

Upon hearing and consideration of the matter, the Learned

Judge dismissed the application on contest and affirmed the orders

dated 29.8.2014 and 31.10.2014. According to petitioner, judgment

and order under challenge is totally incorrect, bad, illegal and

perverse as because accused should have given opportunity to

adduce defence evidence for proper adjudication of the case and for

end of justice.

Considering the facts of the petitioner and on perusal of the

record as well as impugned orders passed by the learned Additional

District and Sessions Judge, 2nd Fast Track Court, Bichar Bhawan,

this Court finds that the petitioner did not avail chance to adduce

defence witness on the date fixed on 23rd July, 2013, 8th January,

2014 and 5th July, 2014 and on all those days petitioner sought for

adjournment, hence the case was fixed for examination under

Section 313 of the Code of Criminal Procedure and thereafter for

hearing of argument of the parties. Petitioner came up with the

application under section 311 of the Cr.P.C. but same was rejected

on 29.08.2014. After closing of argument, a date was fixed for

delivery of judgment on 31.10.2014 but on that day petitioner also

fails to appear on the plea that he could not get reservation to come

to Kolkata from Jaipur. Accordingly, the Learned Trial Court has

issued a warrant of arrest to secure his attendance as such revision

application filed by the petitioner before the Learned Court below.

The said revision application has been finally dismissed after

affirming the said impugned orders under the grounds that the

revision application is not maintainable under section 397 (2) of the

Code of Criminal procedure and throughout the proceeding

petitioner tried to delay the proceeding.

Petitioner fails to adduce defence witness on several dates

fixed by the learned Trial Court and his intension to file application

under Section 311 of the Code of Criminal Procedure is only

appearing to drag the matter intentionally. It is not that the

petitioner did not get opportunity to adduce defence witness but he

had not availed. Petitioner also cross-examined the witnesses

adduced by the opposite party no. 1. Furthermore, the rejection of

application under section 311 of the Code of Criminal Procedure is

an interlocutory order within the meaning of Section 397 (2) of the

Code of Criminal Procedure as it does not decide any substantive

right of litigating parties. Hence, no revision lies against such order.

I am relying on judgments of Supreme Court passed in :-

(1) Sethuraman Vs. Rajamanickam1

Wherein the Apex Court observed that :-

"refusing to call the documents and rejecting the application

under Section 311 Cr.P.C. are interlocutory orders as such, the

revision against those orders was clearly barred under Section

2009 (65) ACC 607 (SC)

397 (2) of the Cr.P.C."

(2) Swapan Kumar Chatterjee v. Central Bureau of

Investigation2, wherein the Apex Court observed that :-

"an application under Section 311 Cr.P.C. ought not to be

allowed where:

(a). the application has been filed as an abuse of the process of

law;

(b). The prosecution's evidence was closed long back;

(c). The reasons for non-examination of the witnesses earlier

are not satisfactory."

Accordingly, I do not find any infirmity or illegality or error

in the Judgment dated 03.03.2015 passed by the learned Additional

District and Sessions Judge, 2nd Fast Track Court, Bichar Bhawan,

Calcutta in Criminal Revision Case No. 152 of 2014.

C.R.R. No. 1034 of 2015 and the connected application are,

thus, disposed of with above observation without any order as to

costs. Interim orders, if any, stand vacated.

The Concerned department is directed to communicate this

order to the learned Trial Court immediately.

Photostat certified copy of this order, if applied for, is to be

(2019) 14 SCC 328

given as expeditiously to the parties on compliance of all formalities.

(Ajay Kumar Gupta, J.)