(1.) Mr. Amit Bhattacharyya learned Advocate appears on behalf of the petitioner and he files affidavit of service upon the opposite party/State. However, none appears on behalf of the O.P/State.
(2.) In this application under Section 401 read with Section 482 of Cr.P.C the petitioner has challenged the order dated 23.2.2006 passed by learned Metropolitan Magistrate, 9th Court, Calcutta in case No. C/6269 of 2004 pursuant to a proceeding under Section 138/141 of the Negotiable Instruments Act observing that Section 145 of N.I Act to be read together with Section 200 of Cr.P.C and, therefore, in spite of filing of affidavit by the complainant he directed that presence of the complainant was necessary for holding an enquiry and, therefore, he was pleased to fix 24th April, 2006 for enquiry. Against this order the present application has been preferred by the petitioner.
(3.) It is submitted by the learned Advocate for the petitioner that Section 145 of N.I Act overrides Section 200, Cr.P.C and, therefore, the Magistrate was bound to issue process against the accused persons without fixing a date for further enquiry under Section 200 of Cr.P.C. It is submitted by him that acceptance of the affidavit filed by the complainant under Section 145 of N.I Act would tantamount to enquiry under Section 200 of Cr.P.C. In connection with that Mr. Bhattacharyya cited a decision reported in (2004)2 Bankmann 326 (Percy Fernandes v. Smt. Anita Patrao). In addition to this, Mr. Bhattacharyya also cited a decision of our High Court reported in (2006)2 E Cr N 68 (Arun Kumar Mohata v. Manjushree Singhi).