DEBI PROSAD DEY,J. - (1.) The application under Section 482 of the Code of Criminal Procedure has been filed for quashing the proceedings of case no. C-480 of 2008 under Section 406/34 of the Indian Penal Code pending before learned Judicial Magistrate, First Court, Sealdah, South 24 Parganas.
(2.) Despite service of notice opposite party no. 1 and 2 did not turn up to contest this application. Opposite party no. 2 / Madhusudan Das(herein after referred to as opposite party only) had filed an application before learned Magistrate at Sealdah for referring the same to the concerned police station under Section 156(3) of the Code of Criminal Procedure. The application was taken up by learned Magistrate and after considering the materials, cognizance was taken by learned Magistrate. After examination of the complainant and his witness, summons were issued against all the accused. All the accused named in the petition of complaint duly appeared before learned Magistrate and contested the case. In the meantime, the present petitioners being accused no. 2, 3 and 4 have filed this application for quashing the petition of complaint on the ground that learned Magistrate was not justified in issuing summons against the present petitioners since the petition of complaint did not disclose any cognizable offence. In fact, loan was advanced to the son of the complainant for purchasing a vehicle but the son of the complainant could not repay the entire loan amount and as such the vehicle was taken into custody of the accused company. Subsequently that vehicle was sold in auction for satisfaction of the loan amount. Ultimately, the entire loan amount could not be satisfied by the sale proceeds of such vehicle and as such, proceeding was started against the complainant and his son for realization of the rest amount before the arbitrator and the arbitrator decided that a sum of Rs. 1,21,522/- was still outstanding. The accused company thereafter filed execution proceeding for realization of the said amount and the said proceeding is still pending before the learned District Judge, Alipore, South 24 Parganas.
(3.) Learned senior Advocate appearing on behalf of the petitioner contended that learned Magistrate did not consider that mere retention of cheques does not amount to an offence under Section 405 of the Indian Penal Code. Secondly, learned Magistrate did not take into account the factual situation as stated herein above while issuing summons against the present petitioners and thereby committed gross miscarriage of justice by issuing summons against the present petitioners. In fact, the entire proceeding ought to be quashed since the petition of complaint actually does not disclose any offence far to speak of the involvement of the present petitioners in the commission of alleged offence.;