- (1.) The impugned order dated 16th April, 2013 passed by the learned Metropolitan Magistrate, 17th Court, Calcutta in case no. C/5793 of 2001 under Section 138 of the Negotiable Instrument Act (hereinafter referred to as "the Act") is challenged before me. Learned lawyer appearing for the petitioner is aggrieved by the impugned order whereby the learned Magistrate has directed the complainant to file fresh evidence in terms of Section 326(3) of the Criminal Procedure Code. She submits that the spirit of the Act is to ensure speedy conclusion of trial which is being defeated by the impugned order. She also submits that no worthwhile purpose would be served by filing fresh affidavit in the light of the fact that evidence of the complainant in proceeding under Section 138 of the Negotiable Instrument Act is recorded through affidavit filed under Section 145(1) of the said Act.
(2.) Learned counsel appearing for the opposite parties submits that the provision of Section 326(3) of the Code of Criminal Procedure is mandatory and cannot be ignored and relies on : NITINBHAI SAEVATILAL SHAH & ANOTHER v. MANUBHAI MANJIBHAI PANCHAL & ANOTHER, 2011 3 SCC(Cri) 788 and an unreported decision of this Court dated 8th May, 2010 in C.R.R. 41 of 2010.
(3.) I have considered the submissions of the parties.;