BISWANATH AGAR WALLA Vs. STATE

JUDGEMENT

(1.) THIS Rule relates to an order dated the 22nd of july, 1974 passed by the Metropolitan magistrate, 3rd Court, Calcutta whereby the learned Magistrate framed charges in case No. G. R. 521 of 1973 under section 420 I. P. C. and Section 420/109 I. P. C. against the petitioners.

(2.) THE prosecution case is that during November, 1970 to February, 1971, the petitioners representing Calcutta Cycle Importing Company of 80d, Bentinck Street, Calcutta had numerous transactions with T. I. and m. Sales limited in respect of cycles components and other accessories. In course of the transaction goods were supplied to the petitioners against cheques. The goods were sent from Madras and delivery orders were sent to the Branch Office of the T. I. and M. Sales Limited, hereafter referred to as the complainant company. The delivery orders were handed over to the petitioners against cheques with instruction to present the cheque for encashment at a future date. In course of the aforesaid transaction some cheques were encased hut many others were dishonoured. The complainant company pressed for payment of the outstanding cheques and declined to make over further goods. Thereupon the petitioners, Promode Kumar Agarwalla, in March, 1971, entreated the complainant company's agent to allow him a little further time and assured full payment of the outstanding cheques. On his assurance that cheques would be fully honoured if deposited after the 30th of April, 1971 and on his representation, further delivery orders of the goods were made over to the petitioners on 16th of March, 1971, and 26th of March, 1971, against receipt of two cheques, both dated the 30th of april, 1971 for Rs. 1816 40 and Rs. 1413. 30 respectively which were signed by sri Biswanath Agarwalla. The cheques were presented on the 4th of may, 1971 for encashment but were dishonoured. It, further, appears that endeavours were mode by the complainant to contact the firm of the petitioners but it was found that the business of Calcutta Cycle Importing Company at 30d, Bentinck Street, Calcutta, was closed and all stocks removed. Under the circumstances one A. Stephens, as the Regional Sales Manager of T. I. and M. Sales Limited filed a complaint on 31. 5. 1971, before the then chief Presidency Magistrate, Calcutta against the petitioners. On the said 31st of May, 1971, the learned Chief presidency Magistrate directed D. C. D. D. to take cognisance and investigate the case. On the 0th of September, 1971, the petitioners surrendered before the Court and were released on bail. On 31st of May, 1973, the police submitted charge sheet against the petitioners under section 120b read with section 420 I. P. C. on the 22nd of July, 1974 the learned Metropolitan Magistrate, 3rd Court after hearing the parties and perusing the documents as referred to under section 173 Cr. P. C. framed charges under section 420 against the petitioners, Promode Kumar Agarwalla and charges under section 420 read with section 109 I. P. C. against the petitioners Biswanath Agarwalla. The said order is challenged by tare petitioners.

(3.) MR. Prasun Ghose, learned Advocate in support of the Rule submitted that the materials on record were not sufficient to maintain the charges. Relying on the case of Sree Ram v. The state of Maharashtra, reported in a. I. R. 1961 S. C. 674, Mr. Ghose stated that the discretion of the Magistrate in framing charges was a judicial discretion and was liable to be set aside by a superior court. Although the aforesaid case of the Supreme Court was decided under section 207 (A) in a proceedings instituted on a police report the same, he submitted, also applied to the order of a Magistrate made tender section 251 (A ). Mr. Ghosh also referred to the case of Rathindra Nath v. The Deputy Superintendent of Police, Purulia, reported in A. I. R. 1972 s. C. 470 in which it was held that the issue of process is a matter for judicial determination. It was also held that the High Court in exercise of his inherent power the High Court can examine whether there is legal evidence justifying the conclusion of the lower court.