- (1.) In this criminal revisional application the petitioner prays for quashing of complaint case no. C/716/11 of 2011 (TR 188/11) under Section 138 of the Negotiable Instruments Act,1881 now pending before the learned Judicial Magistrate, 2nd Court, Alipore, 24 Parganas (South). The petitioner is the accused no. 2 in the said complaint. The brief facts of the caseare as follows:- a. That the complainant is one Debasish Ghosh who is the absolute owner of premises no. 31, Jatindas Road, Police Station: Lake, Kolkata- 700 029; b. That the accused no.1 is the husband of the petitioner and a business relationship subsisted between the accused no.1 and the complainant. This business relationship also covered the promoting and development of around 10 cottahs property situated at 31, Jatindas Road, Police Station: Lake, Kolkata-700 029; c. Pursuant to the agreement between the complainant and the accused no.1, Swapan Chatterjee, the complainant paid a sum of Rs. 8,00,000/- to the firm of the accused no.1 and the accused no.2. However, the project did not materialise and in discharge of their alleged liability of Rs. 8,00,000/-, the accused persons issued an account payee cheque no.257161 of the said amount of Rs. 8,00,000/-. d. The cheque dated 15th June, 2010 drawn on State Bank of India, Ruby Park Branch, 198, Rajdanga Road, Kasba, Kolkata-700 017 returned with the memo dated 22nd November, 2010 with the remarks payment stopped by drawer. e. Subsequently, the complainant caused to be issued demand notice through his lawyer dated 03rd December, 2010 and the said demand notice returned with the endorsement ' not claimed'.
(2.) Hence, the complaint under Section 138 of the N.I. Act. Sri Gupta, Ld. Counsel appearing on behalf of the petitioner has principally canvassed the following points before this Court.
(3.) That the learned Magistrate failed to discharge jurisdiction vested in him by law by neglecting to peruse the cheque in dispute as annexed to the petition of complaint. The learned Magistrate further failed to examine the statement made in the petition of complaint as well as in the evidence-in-chief of the complainant. According to Sri Gupta a bare perusal the complaint will show that the cheque has been used by only person and process could not have been issued against two persons viz; Swapan Chatterjee, the accused no.1 and Madhumita Chatterjee, accused no.2 who is the present petitioner.;