BIJAY KUMAR BHATTAR Vs. TRIMURTI ASSOCIATES PVT LTD

JUDGEMENT

(1.) A proceeding relating to an offence punishable under section 138 of the Negotiable Instruments Act was instituted against the petitioner and two others on the basis of a complaint made to the Court by the opposite party No. 1 being represented by one of its erstwhile Director Pawan Kumar Agarwal. After the said Pawan Kumar Agarwal left the company he was substituted by one Sri Vinay Kumar Gupta. Against such substitution petitioner moved the Sessions Court as well as the High Court but they lost there. Thereafter, the said Sri Vinay Kumar Gupta tendered his evidence by way of affidavit annexing therewith the Board Resolution whereby he was authorized to represent the complainant company. Since the Trial Court rejected the objection raised by the accused against acceptance of such evidence, hence this criminal revision challenging the said order.

(2.) At the time of hearing of this application a supplementary affidavit has been filed on behalf of the petitioner accompanied by certified copy of the entire order sheets relating to the impugned case, viz. the Case No. C/313/1996 pending before the learned Metropolitan Magistrate, 11th Court, Calcutta and it was urged the same were not available when the main criminal revision was moved and consideration of the same are very much essential for just decision of the case. It was played that the said supplementary affidavit be treated as the part of the main criminal revision when this Court allowed such prayer.

(3.) Now, with reference to the certified copy of the order sheets filed along with the supplementary affidavit it was pointed out before this Court that in connection with the said case by an order passed on May 18, 2001, the Trial Court acquitted the accused persons under section 256 of the Code due to the non-appearance of the complainant and on the self-same, day the complainant filed an application for recalling of such order of dismissal but that application was rejected by the learned Court on June 1, 2001. It has been further pointed out subsequently the proceeding relating to the Complaint, Case No. C/313 of 1996 which has been ended in acquittal of the petitioner as aforesaid has been restored pursuant to an order passed in connection with Criminal Revision No. 148 of 2001 by the learned Judge, VIII Bench, City Sessions Court, Calcutta, and the said order was communicated to the Trial Court on 7th of May, 2002 and accordingly the trial relating to the aforesaid complaint case which was ended in acquittal once again commenced. Both in the averment made in the supplementary affidavit as well as in the submissions made by the learned Counsel appearing on behalf of the petitioner it was categorically urged that the petitioner was never aware of any such revisional application in which the aforesaid order of acquittal, passed by the Trial Court on 18th of May, 2001 was reversed. It was submitted not only the said order was passed by the learned Judge, City Sessions Court, VIII Bench, Calcutta without the knowledge of the accused persons in whose favour the order of acquittal was passed, and without giving them any opportunity of hearing, the said order was otherwise illegal and without jurisdiction. It was contended since the aforesaid order under section 256 of the Code amounts to an order of acquittal and is an appealable order and appeal lies before the Hon'ble High Court, the learned Judge, 8 Bench, City Sessions Court, Calcutta, in exercise of its revisional jurisdiction is not legally empowered to interfere with such an order of acquittal and to reverse the same. Mr. Moitra submitted since the order of the Revisional Court is absolutely illegal and without jurisdiction all consequential orders, namely, the commencement of trial before the learned Metropolitan Magistrate, 11th Court, Calcutta as well as all orders passed in connection therewith cannot be sustained. It may be noted following the filing of the aforesaid supplementary affidavit and submissions of the learned Counsel appearing on behalf of the petitioner that the aforesaid criminal revision being Criminal Revision No. 148 of 2001 was heard and disposed of ex parte, setting aside the order of acquittal of the, present petitioner, without any notice to them this Court called for the records relating to the said criminal revision, accordingly the same has been brought and perused by this Court.