S.P.Talukdar, J. - (1.) The instant case relates to an application under section 401 read with section 482 of the Criminal Procedure Code.
(2.) By filing such application the petitioners sought for quashing of the; proceeding arising out of the Order dated 30th September, 2005 passed by the learned Judicial Magistrate, Bidhannagar, 24-Parganas (N) in connection with Case No.C-85 of 2005 corresponding to Trial Case No.T-662 of 2005 under section 138 of the Negotiable Instruments Act.
(3.) Grievances of the petitioners may briefly be stated as follows; On the basis of a petition of complaint filed on behalf of the present opposite party, learned Additional Chief Judicial Magistrate, Bidhannagar, District 24-Parganas (N), by order dated 26.08.2005 took cognizance of the offence under section 138 of the Negotiable Instruments Act and then made over the case to the learned Court of Judicial Magistrate for disposal. It was alleged in the said petition of complaint that accused No.1, being a partnership firm, 'Tec Mark Combines', was the authorised wholesale distributor under the complainant and in course of business transaction complainants supplied various type of products worth about Rs. 25 lakhs and on demand of the proceeds the accused company issued cheque of the said amount drawn on Central Bank of India, Howrah Branch. The said cheque while presented to the banker of the complainant being the City Bank, Chowringhee Branch for encashment, was dishonoured with Bank endorsement 'payment stopped by drawer' and despite the notice of demand for payment of the said amount nothing was paid. The said petition of complaint was moved on 26.08.2005. Cognizance was taken of the offence alleged to have been committed being under section 138 of the N.I. Act and, thereafter, it was transferred to the learned Court of Judicial Magistrate, Bidhannagar for disposal. The learned Transferee Court on receipt of the case record issued process upon accused No.2, i.e., the present petitioner No.1 and withheld issuance of summons upon the present petitioner No.2/accused No.l and, thereafter, by order dated 30.09.2005 fixed the date for recording plea under section 251 of the Criminal Procedure Code. Thus, none of the Courts examined the complainant or any witness on behalf of the complainant in compliance with section 200 of the Code of Criminal Procedure. The petition of complaint did not contain any averment connecting the petitioner No.1 /accused No.2 with the alleged offence. There was no specific allegation that the accused petitioners were in any way responsible for day-to-day business of the accused company. In absence of any prima facie case against the petitioners, learned Additional Chief Judicial Magistrate was not justified in taking cognizance and learned Transferee Court misdirected itself the impugned proceedings against the petitioners/ assused persons. The cause of action for initiating of the impugned proceedings arose outside the territorial jurisdiction of learned Judicial Magistrate, Bidhannagar inasmuch as the concerned cheque was drawn upon the Bank situated at Howrah and the Bank of the drawee is situated at Chowringhee at Kolkata as averred in the petition of complaint.;