NEMAI CHAND BOSE Vs. MODI CEMENT LTD

JUDGEMENT

(1.) This revisional application is directed against an Order dt. 27.1.1999 passed by the learned Metropolitan Magistrate. 6th Court, Calcutta in Case No. C/2442/97.

(2.) The facts leading to the present revision may be shortly stated thus: The O.P. No. 1, MIs. Modi Cement Ltd., through its constituted Attorney, Tarapada Saha, lodged a complaint with the learned Chief Metropolitan Magistrate. Calcutta; against the petitioneraccused under section 138 of the Negotiable Instruments Act, 1881. It was alleged that the petitioner accused purchased diverse quantities of cement from the O.P. No. 1 on credit and a sum of Rs. 65,888.93 was due and payable from the petitioner accused to the Opposite Party No. 1 Cement Company. In liability and in payment of the aforesaid dues the petitioneraccused issued a cheque for Rs. 65,888.93 drawn on the State Bank of India, Memari but the cheque was returned dishonoured with remarks, out of funds by the bank. Despite due legal notice served upon the petitioner by the complainant to make the payment, the petitioner failed and neglected to pay up the said dues or sum of money covered by the cheque. Hence, the complaint. On the basis of the said complaint, the learned Chief Metropolitan Magistrate was pleased to take cognizance and transferred the case to the learned Metropolitan Magistrate. 6th Court, Calcutta. Then what the learned Metropolitan Magistrate 6th Court, did was, he issued summons to the accused (petitioner) for his appearance without examining the complainant on S/A under section 200, Cr. P.C. and when the petitioner accused actually made his appearance before the Court on 27.1.1999 in pursuance thereof and prayed for bail the learned Magistrate allowed the prayer and granted a bail of Rs. 1.000/- and fixed 18.3.1999 for plea. But later on the same day i.e. 27.1.1999 the learned Magistrate made another order to say that summons to the accused was issued inadvertently, that process could not at all be issued according to law without examining the complainant on S/A and hence, the learned Magistrate immediately recalled his own order made earlier on the day in respect of the bail fixed and 4.2.1999 for S/A directing the complainant to come ready as last chance. In February, 1999 the complainant was examined and on a consideration of his evidence and entire materials on record the learned Magistrate found that the complainant had made out a prima facie case and so, he ordered issuance of process against the petitioneraccused under Section 138, N.I. Act fixing 8.4.1999 for SIR and appearance.

(3.) Now, the twin grievance, the petitioneraccused has come up with are that the direction for appearance of the petitioner without examining the complainant on S/A under section 200, Cr. P.C. was illegal and vitiated the whole proceedings and next, that by recalling his own order granting bail to the petitioner, the learned Magistrate had violated the provision of section 362 of the Code of Criminal Procedure.