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TMI Blog2022 (4) TMI 764X X X X Extracts X X X X X X X X Extracts X X X X ..... n a printed order without even knowing what is written in the order. There is no whisper in the entire complaint put by OP-2 that the complaint relates to any dishonour of cheque to attract section 138 of the Negotiable Instrument Act 1881(N.I. Act). Without going through the contents of the complaint Magistrate found prima facie case under section 138 of N.I. Act. From the sum and substance of the complaint it appears that complainant had tried to make out in his complain No.C-16913/11, a case under section 406/409/120B of the Indian Penal Code and not a single word has been used in the entire complaint in connection with dishonour of any cheque, so that it can attract section 138 of N.I. Act. It is by now well-settled that although the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired and the same cannot be surrogated to a mechanical process. Revision application allowed. - CRR 4130 of 2011 - - - Dated:- 5-4-2022 - Hon ble Justice Ajoy Kumar Mukherjee For the Petitioner : Mr. Pratim Priya Dasgupta, Mr. Amit Dey ORDER AJOY KUMAR MUKHERJEE, J. 1. None appeared on behalf of the opposite parties inspite of serving notice in compliance with order of this court dated 24.02.2022. Affidavit of service filed by the petitioner today be kept with the record. The matter is taken up for hearing. Heard Mr. P.P. Dasgupta, learned counsel for the petitioner. Pursuing to a petition of complaint filed by the opposite party No. 2, (herein after called as OP-2), the petitioner herein Abhijit Kavade, manag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cerned bank through a demand draft, which issued in favour of OP-2 as the equipment purchased under order dated 30.09.2009 from accused No. 1 was not performing properly pursuant to which , the OP- 2/complainant had to suffer huge loss and damages. 3. However though the original bank guarantee was sent to the bank authority through courier service, but the bank mentioned that the original bank guarantee is not with the bank and the same is lying with accused No. 1 and hence the payment/guarantee money was not effected by the bank authority and for which the said complaint was filed. 4. Subsequent to filing of the aforesaid complaint, Chief Metropolitan Magistrate, Calcutta vide order dated 29.06.2011 was pleased to transfer the same t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011 passed by the magistrate concerned that there was a total non-application of judicial mind on the part of the magistrate. Moreover, the dispute between the parties is purely civil in nature and the same has been given colour of criminal proceeding by filing the said complaint. In fact the complainant /OP-2 herein has not approached before the court with clean hands and as such the same is liable to be quashed. 7. However before going to investigate into the merit of the submissions made on behalf of the petitioner/accused No. 3, I find that there is a basic aspect of the matter which is apparent at the face of the record and without deciding the same, the core aspect of the merit cannot be gone into. It appears that pursuant to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Indian Penal Code and not a single word has been used in the entire complaint in connection with dishonour of any cheque, so that it can attract section 138 of N.I. Act. Curious enough even without understanding the complaint affidavit or document, magistrate had put his signature in the order, which contains that he perused the petition of complaint as well as affidavit and documents and after considering all these he found that a prima facie case under section 138 of N.I. Act appears to exists and accordingly he issued summon to the accused persons including the present petitioner. This is most unfortunate part of the case which destroys the very basis of taking cognizance by the magistrate due to sheer negligence and insensitive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istrate concerned has understood the term taking cognizance as delivery system in the post office without application of mind. Unfortunately this is never the intention of the legislature, as is evident from the provision of section 190(a) of Code of Criminal Procedure which shows learned magistrate can proceed on curtain direction upon receiving the petition of complaint of facts which constitute such offence. Magistrate never considered whether the allegations levelled in the complaint constitutes offence under section 138 of N.I. Act and whether prima facie case persists which is pre-eminently required and the same cannot be surrogated to a mechanical process. 10. In view of above the way the order dated 27.07.2011 was passed is pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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