Calcutta High Court (Appellete Side)

Amal Kumar Shee @ Amal Shee vs Baburam Naskar on 12 May, 2023

                     IN THE HIGH COURT AT CALCUTTA

                     (Criminal Revisional Jurisdiction)

                             APPELLATE SIDE



Present:

The Hon'ble Justice Shampa Dutt (Paul)

                             CRR 438 of 2020



                      Amal Kumar Shee @ Amal Shee

                                    Vs

                             Baburam Naskar




For the Petitioner                 : Mr. Md. Zohaib Rauf.




For the Opposite Party             : Mr. Satadru Lahiri,
                                     Mr. Safdar Azam,
                                     Mr. Syed Wasim Faruque.




Heard on                           : 19.04.2023

Judgment on                        : 12.05.2023
                                         2


Shampa Dutt (Paul), J.:



1.   The present revision has been preferred praying for quashing of

     proceedings of Case No. C-359 of 2017, under Section 138 of the

     Negotiable Instruments Act, 1881, pending before the Court of the

     Additional Chief Judicial Magistrate at Baruipur, South 24 Parganas,

     and the order dated 14.01.2019 passed therein.

2.   The petitioner's case is that the opposite party no. 2, filed a complaint

     before the Court of the Learned Additional Chief Judicial Magistrate,

     Baruipur, South 24 Parganas, on March 23, 2017, against the Petitioner

     and his sole proprietorship concern, which in short is as follows:-

        i.   That in pursuance of an agreement between the Petitioner and

             the opposite party no. 2, the opposite party no. 2 had supplied

             dried flowers to the petitioner allegedly according to the

             specification previously agreed upon vide bills dated 04.09.2016,

             23.09.2013, 03.10.2016 and 08.11.2016. Allegedly in discharge

             of his liabilities, the Petitioner had apparently issued a cheque

             being Cheque No. 000016 for a sum of Rs. 2,89,993/- drawn on

             HDFC Bank, Lenin Sarani Branch, in favour of Sri Mahalakshmi

             Dry Flowers, i.e. the sole proprietorship concern of the opposite

             party No. 2.
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ii.    The opposite party no. 2 had first deposited the said cheque with

       his banker on 08.11.2019, which was dishonoured due to

       "insufficiency of funds".

iii.   The opposite party No. 2 had thereafter, allegedly deposited the

       said cheque with his banker, i.e., Axis Bank, Joynagar Mazylpur

       Branch, on the Petitioner's advice, on 07.12.2016 which was

       dishonoured on 17.12.2016 and was returned to the opposite

       party No. 2 allegedly on 05.01.2017 with the remarks "fund

       insufficient".

iv.    Thereafter the opposite party no. 2 sent a Notice dated

       18.01.2017 under Section 138 of the Negotiable Instruments Act,

       1881, calling upon the Petitioner to pay the amount of Rs.

       2,89,993/- to the opposite party no. 2 which was delivered to the

       petitioner on 20.01.2017 and the petitioner, through his learned

       Advocate, replied to the learned Advocate of the opposite party

       no. 2, vide a letter dated 31.01.2017 which was received on

       02.02.2017, apparently calling upon the opposite party no. 2 for

       settlement.

 v.    The opposite party No. 2 further alleged that he contacted the

       petitioner over phone several times but the Petitioner did not

       respond.

vi.    It has been also alleged that the Petitioner sent two other Notices

       dated 14.02.2017 and 23.02.2017 "by fabricating a false story".
                                         4


      vii.   The opposite party No. 2 finally visited the petitioner at his Office

             on 06.03.2017 but the Petitioner did not pay the amount in

             question.

3.   Mr. Zohaib Rauf, learned counsel for the petitioner submits that

     the instant proceeding so instituted by the opposite party herein is a

     malicious one and the same was instituted in order to spite the

     petitioner on account of personal grudge of the opposite party.

4.   That it appears that along with the said petition of complaint, the

     petitioner also filed an Application for condonation of delay under

     Section 142 of the Negotiable Instruments Act, 1881, and the matter

     was fixed for hearing on the point of cognizance on 26.04.2017.

5.   The matter was adjourned due to a resolution of the local bar and was

     thereafter fixed on 30.08.2017. Thereafter, the opposite party no. 2

     remained absent on 30.08.2017 and 24.11.2017 without taking any

     steps and on 16.01.2018 and 29.03.2018, the opposite party no. 2

     resorted to dilatory tactics and prayed for adjournments from the

     learned Court.

6.   The opposite party no. 2, then filed an amendment application on

     11.10.2018 which was allowed on the same day without affording an

     opportunity of hearing to the opposite party no. 2 and the learned

     Advocate for the opposite party no. 2 filed an amended petition,

     without even serving a copy of the same to the Petitioner.
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7.   On 14.01.2019, the opposite party no. 2 filed a Supplementary

     Affidavit. On the same day, the application under Section 142 of the

     Negotiable Instruments Act, 1881, was allowed by the learned

     Magistrate, without granting an opportunity of hearing to the

     petitioner and without even a copy being served upon him.

8.   That it is humbly stated that while condoning delay the Court should

     not forget the opposite party altogether. That when courts condone the

     delay due to laches on the part of the applicant, it should at least

     grant an opportunity of hearing to the opposite party.

9.   The petitioner submits that the aforesaid Order so passed by the

     Learned Trial Court is factually incorrect, procedurally untenable and

     legally unsustainable and the aforesaid Order passed by the Trial

     Court being not in accordance with law ought to be set aside by this

     Hon'ble Court for the ends of justice.

10. The following judgments have been relied upon by the petitioner:-

        i.   State of Maharashtra vs Sharadchandra Vinayak Dongre

             and Ors., (1995) 1 SCC 42, on October 7, 1994.

                  "5. In our view, the High Court was perfectly justified
                  in holding that the delay, if any, for launching the
                  prosecution, could not have been condoned without
                  notice to the respondents and behind their back and

without recording any reasons for condonation of the delay. However, having come to that conclusion, it would have been appropriate for the High Court, without going into the merits of the case to have remitted the case to the trial court, with a direction to decide the application for condonation of delay afresh after hearing both sides. The High Court however, did

not adopt that course and proceeded further to hold that the trial court could not have taken cognizance of the offence in view of the application filed by the prosecution seeking permission of the Court to file a "supplementary charge-sheet" on the basis of an "incomplete charge-sheet" and quashed the order of the CJM dated 21-11-1986 on this ground also. This view of the High Court, in the facts and circumstances of the case is patently erroneous."

ii. Gautam Kumar De and Anr. vs Prime Movers Auto

Associates (P) Ltd. and Anr., CRR No. 3772 of 2008, on

March 25, 2009 of Calcutta High Court.

"6. Now the question is whether the proposed accused persons have right of audience in the matter of condonation of delay in making the complaint under section 138 of the NI Act. The proviso to clause

(b) to section 142 of the Act giving power to the Magistrate to condone the delay if sufficient causes are shown was not originally there in the said section 142 but has been introduced by amendment of the Act with effect from 6th February, 2003. However, when the petition of complaint was filed, the amendment has come into force, as such the prayer for condonation of delay was entertainable. Now a Division Bench of this Court way back in 1981 in Asiatic Oxygen and Acetylene Co. Ltd v. Registrar of Companies, West Bengal reported in 1981 (11) CHN 412 held at paragraph 7 as follows:--

"From the discussion of the rulings of the different High Courts it appears to us that the proper and legitimate course for taking cognizance of an offence after extension of the period of limitation as contemplated under section 473 Cr.PC is to give prior notice to the proposed accused of the petition of complaint and the reasons put forward in a petition under section 473 Cr.PC for extending the period of limitation so that the accused can be heard before the offence is taken cognizance of and the Court taking cognizance of the offence can avoid the necessity of

reviewing its own tentative decision. That procedure was not followed in the case before us while the learned Chief Metropolitan Magistrate recorded orders dated 18.8.78 and 6.3.80. The aforesaid orders were passed in violation of rules of natural justice. We, therefore, set aside the orders dated 18.8.78 and 6.3.80 passed by the Chief Metropolitan Magistrate in case No. C/1147 of 1978. The learned Chief Metropolitan Magistrate will, however, be at liberty to give notice to the accused named in the petition of complaint of the petition for condonation of delay filed by the complainant under section 473 Cr.PC and hear the proposed accused and thereafter to pass appropriate orders on the said petition"."

11. Mr. Satadru Lahiri, learned counsel for the opposite party has

submitted that the delay was only of 9 days and if the matter is

remitted for hearing the matter afresh, there will be further delay,

which will cause miscarriage of justice.

12. The relevant order in this case dated 14.01.2019 is as follows:-

".......................

Today is fixed for SA. Complainant is present and files affidavit in chief. Complainant produced the original documents and files the Xerox copies of those originals and original documents are returned to the complainant as prayed for by separate petition after perusal.

Examined the complainant under Section 200 Cr.P.C. and perused the petition of the complaint under Section 142 NI Act for condonation of delay dated 23.03.2017.

Delay is condoned and cause of delay is satisfactorily explained............."

Sd/-

Additional Chief Judicial Magistrate, Baruipur, South 24 Parganas,

13. It is seen that it's on record that the petition under Section 142 of N.I.

Act was allowed without hearing and also without even a notice being

issued to the petitioner, which is clearly against the interest of justice.

14. Section 142(b) of the Negotiable Instruments Act, lays down:-

"142 Cognizance of offences. --Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)--

(a) ..............................

(b) such complaint is made within one month of the date on which the cause of action arises under clause

(c) of the proviso to section138:

[Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period.]"

15. Accordingly in view of the judgment of the Supreme Court in State of

Maharashtra (Supra) the petitioner is entitled to get a right of hearing

in respect of the petition under Section 142 N.I. Act in the interest of

justice.

16. The order dated 14.01.2019 passed in C-359 of 2017, under Section 138

of the Negotiable Instruments Act, 1881, pending before the Court of the

Additional Chief Judicial Magistrate at Baruipur, South 24 Parganas, is

hereby set aside.

17. CRR 438 of 2020 is allowed.

18. The learned Magistrate shall hear the application under Section 142(b)

N.I. Act on due notice to the opposite party/accused therein and dispose

of the same expeditiously in accordance with law.