- (1.) This is an application under Section 482 of Code of Criminal Procedure filed by K. Balasubramanian /petitioner praying for quashing of the complaint case being No. C-31302 of 2009 pending before the learned Metropolitan Magistrate, 8th Court at Kolkata.
(2.) The factual background in a nutshell is that opposite party No.2 M/s Steer Overseas Private Limited filed the complaint case being No. C-31302 of 2009 under Section 138 of N.I. Act , 1881 against the petitioner alleging, inter alia, that the petitioner entered into a contract with the opposite party No. 2 for conducting business and in course of such business transaction a huge sum of money became due and payable by the petitioner to the O.P. No. 2. THE petitioner assured the o.p. No. 2 that he would clear off all such dues and on 22-2-2009 there was a detailed meeting between the petitioner and the o.p. No. 2 wherein the petitioner admitted his liability to pay a sum of Rs. 11,90,18,978/- subject to the verification of the payment made by the o.p. No. 2 to Krishnapatnam Port Co. Ltd. on behalf of the petitioner and that the petitioner was supposed to confirm the same within 28-2-2009. On 21- 2-2009 the petitioner in discharge of his part liability issued one post dated account payee cheque bearing No. 007334 dated 31-3-2009 drawn on Federal Bank Limited, Mount Road Branch, Chennai-600 002 for sum of Rs. 5 crore in favour of o.p. No. 2. O.P. No. 2 presented the said cheque within its validity period, the cheque was returned unpaid with the remark "Payment Stopped by Drawer" by the bank of the O.P. No. 2 vide return memo dated 6-4-2009. On 28-4-2009 a demand notice was served upon the petitioner by o.p. No. 2 but the said notice was returned back to the o.p. no.1 on 1-5-2009 stating "Addressee seven days absent" . In spite of such service and expiry of statutory period of 15 days , the petitioner failed to make any payment and as such the impugned proceeding was initiated before the leaned Chief Metropolitan Magistrate , Kolkata. THE said case was subsequently transferred to the file of learned Metropolitan magistrate, 8th Court, Kolkata for disposal. So this revisional application praying for quashing of the proceeding pending before the learned Metropolitan Magistrate, 8th Court, Kolkata. Mr. Sudipto Moitra, learned senior advocate appearing for the petitioner has contended that on the selfsame cause of action a case before the Chennai Court was started by the complainant and the proceeding before the learned Metropolitan Magistrate under Section 138 of N.I.Act has been filed suppressing the pendency of the case before the learned Court of Chennai. The petitioner was in custody in connection with the case pending before the learned Court of Chennai and during that period notice of demand was issued to him by the o.p. No. 2 knowing it well thatthe petitioner was in custody. The o.p. No. 2 had mala fide intention. He has further contended that the notice of demand was not served and cannot be treated that it was deemed to have been served . Furthermore, there is no averment in the complaint that the notice has been served. Mr. Moitra has cited decisions (D.Vinod. Shivappa vs-Nanda Belliappa, 2006 CrLJ 2897), (Mukat Bihari vs- State of Rajasthan, 2006 CrLJ 439), (Shakti Travel and Tours-vs- State of Bihar and another, 2002 9 SCC 415), (Rajendran vs- N.Mohanan and another, 2009 14 SCC 399), (C.C. Alavi Haji vs- Palin Muhammed and another, 2008 1 CalCriLR 69) in support of his contention. Therefore he has contended that the proceeding which has been initiated by the o.p. No. 2 and pending before the learned Metropolitan Magistrate, 8th Court Kolkata has not satisfied the minimum requirement of service of demand notice. The proceeding be quashed. Mr. Milon Mukherjee, learned senior advocate appearing for the o.p. No. 2 has contended that the complaint was filed in June, 2009. The petitioner submitted an application under Section 205 of Cr. P.C. on 23-11-2009. The said petition was allowed by the learned Metropolitan Magistrate with some condition. The order passed by the learned Metropolitan Magistrate was challenged by the petitioner by filing a revisional application before this Court. This Court by an order dated 31-3- 2010 directed the learned Metropolitan Magistrate to dispose of the matter within three months from the date of communication of the order. Mr. Mitra's client i.e. petitioner filed an application challenging the order passed by this Court on 12-7- 2010. The Hon'ble Apex Court rejected the application of the petitioner by an order dated 6-12-2010 and the same was communicated to the learned Metropolitan Magistrate on 27-12-2010. Mr. Mitra's client i.e. petitioner has filed this revisional application on 17-1-2011 . Mr. Mukherjee has contended that the contention of Mr. Mitra i.e. non-service of notice can be taken care of and dealt with after recording evidence in the matter pending before the learned Court below. Mr. Mukherjee has placed the decisions (Vinod Shivappa vs- Nanda Belliappa, 2006 2 CalCriLR 381) and (C.C. Alavi Haji vs- Palin Muhammed and another, 2008 1 CalCriLR 69) and has submitted that the petitioner came to know about the case as back as on 23-11-2009 when he took out an application under Section 205 of Cr. P.C. and submitted it before the learned Court below praying for dispensation of his appearance but he did not question the proceeding pending before the learned Metropolitan Magistrate. The petition praying for quashing of the proceeding may be rejected.
(3.) Perused the revisional application, taken stock of the rival contention of learned advocates of the parties and gone through the order passed by this Court in CRR No. 4653 of 2009 on 31-3-2010 as well as citations placed before this Court . It is relevant to quote para 4 of the revisional application:- " At the very initial stage of filing the aforesaid complaint case, the Learned 8th Metropolitan Magistrate issued summons and pursuant to the said summons the petitioner entered appearance through his Learned Advocate and applied for exemption of his personal appearance under Section 205 of the Code of Criminal Procedure . Such prayer was however allowed with a condition that he would have to appear at the time of plea under section 251 and examination under section 313 of Code of Criminal Procedure against which the petitioner had preferred a Criminal Revision and subsequently this Hon'ble Court was pleased to hold that plea would be recorded through his Learned Advocate but he would have to be present at the time of examination under section 313 of Code of Criminal Procedure . The High Court was also pleased to direct that the trial should be concluded within a period of three months. Thereafter the petitioner had moved the Hon'ble Apex Court against such direction and had also separately applied before the Hon'ble Apex Court for transferring the said case to the Court at Chennai. However such applications were dismissed by the Hon'ble Apex Court." On going through the record , it appears that the learned Magistrate dispensed with the personal appearance of the petitioner during day to day proceeding of the case in terms of provisions of Section 205 of Cr. P.C. on condition that the petitioner shall appear in Court for recording of his plea under Section 251 of Cr. P.C. and for his examination under Section 313 of the Code of Criminal Procedure . The petitioner challenged the said order of the learned Metropolitan Magistrate by filing CRR No. 4653 of 2009 . This Court by an order dated 31-3-2010 set aside the order passed by the learned Magistrate in part directing the Magistrate to examine the accused/petitioner under Section 251 of the Code through his learned counsel. This Court directed the trial Court to conclude the trial within a period of three months. Thereafter the petitioner had moved the Hon'ble Apex Court against such direction and had also separately applied before the Hon'ble Apex Court for transferring the said case to the Court at Chennai. However, said application were dismissed by the Hon'ble Apex Court.;