Siddhartha Chattopadhyay, J. - (1.) Challenge in this revisional application is to the orders dated 09.08.2016 and 08.03.2017 passed by the learned Magistrate, whereby the cognizance was taken and process was issued.
(2.) The present private opposite party has filed a complaint case before the learned C.M.M. being case No. CS/0103371 of 2016 against the accused persons and the present petitioner has been arraigned as accused no. 1 on the following allegations. According to the private opposite party in the year 2013 the accused no. 2 to 7, on behalf of the accused No. 1, gave a proposal to the opposite party no. 2 for transacting by way of bill discounting facility which was subsequently accepted by opposite party no. 2 in the year 2013 and in 2014 the opposite party no. 2 handed over some blank cheques as security so that in case of failure in payment through bill discounting facility, the petitioner after formal intimation, can realise the due upon filling up and placing those cheques with its banker. It is further alleged that bill discounting was duly signed by both parties with a credit period of 60 days and an additional grace period of 30 days. The complainant further stated in the said complaint that the credit limit for the said sum became I.N.R. 1,50,00,000 which was further extended to I.N.R. 2,30,00,000 and all the bill discounting was honoured within the stipulated time. The complainant alleged that accused persons (present petitioners) were requested to return all the security deposit cheques and without any evidentiary basis, alleged that the accused also stated that the cheques had already been destroyed. In the year 2004 there was substantial transaction between the parties and upon the happening of an event the complainant alleges that the accused no. 6, who transacted on behalf of the petitioner, assured to repay the claim within time. Ultimately, he miserably failed to do so and there was an adjustment that the claim was settled at I.N.R. 70,00,000. It was also allegedly agreed that out of I.N.R. 24,00,000 outstanding claim, they would make a payment of I.N.R. 4,00,000 immediately and the rest amount would be adjusted under various orders within next 6 months. In terms of the assurance of the accused persons (present petitioner) initially I.N.R. 8,00,000 was adjusted on various invoices. It has been further alleged by the complainant that private opposite party on August 2, 2016 presented the cheques. The opposite party no. 2 was surprised to know that a high value cheque was dishonoured in its bank account. Upon enquiry the complainant alleges that the cheque bearing no. 515207 for I.N.R. 56,29,884 was presented for encashment without the knowledge of the present opposite party no. 2. According to the complainant, those cheques were entrusted to the petitioner no. 2 towards security and not as a debt. After filing of the complaint before the learned C.M.M. it was assigned to the Court of learned Metropolitan Magistrate of this Court at Calcutta. The said Court had examined opposite party no. 2 and another witness and thereafter directed for investigation by the officerin-charge of Hare Street Police Station. After getting the said complaint, the officer-in-charge of Hare Street Police Station had issued notice to the present petitioner under Section 41A of Cr.P.C. and they have replied in writing. In spite of that without considering their written reply, the O.C. Hare Street Police Station has submitted a report before the learned trial Court and the trial Court has issued process. Challenging that part, they have come before this Court. According to the present petitioner, the learned trial Court has failed to appreciate the position of criminal law and issued the process against them mechanically. Mere bald allegations in the complaint, which are completely berefet of evidence, learned trial court ought not to have issued the process.
(3.) By filing affidavit in opposition the private opposite party has admitted the cordial relationship and business transaction by and between them. They have taken a plea that post-dated cheques were issued as security which could not be utilized under any circumstances. They also mentioned that it was agreed that those cheques could only be utilized in case of failure in payment. They claimed that the present petitioners had intimated the private opposite party that the cheques of 2013 have been destroyed. They asserted that cheques were issued in connection with channel finance system as security. By filing an affidavit in reply the present petitioner contended that cheque in question was never handed over to the petitioner as security. They have drawn the attention of this Court referring para 10 of the petition of complaint wherein the private opposite party had admitted that there was never any dishonour and such practice of handing over security cheque was discontinued on consent of the accused company in March 2014. They have drawn the attention of Annexure P-16 and mentioned the same in paragraph 6 of their affidavit in reply.;