The main legal point established in the judgment is the requirement for the magistrate to apply judicial mind and determine the existence of a prima facie case before issuing summon in a criminal complaint.

ORDER

Ajoy Kumar Mukherjee, J. - None appeared on behalf of the opposite parties inspite of serving notice in compliance with order of this court dated 24.02.2022. Affidavit of service filed by the petitioner today be kept with the record. The matter is taken up for hearing. Heard Mr. P.P. Dasgupta, learned counsel for the petitioner. Pursuing to a petition of complaint filed by the opposite party No. 2, (herein after called as OP-2), the petitioner herein Abhijit Kavade, manager of HDFC Bank along with two other persons have been arrayed in complaint case No.C-16913/2011 before learned Chief Metropolitan Magistrate, Calcutta to answer the allegation revealed under sections 406/409/120B of the Indian Penal Code. The petitioner herein who has been described as accused No. 3, on the basis of summon issued against him, approached this court to quash the proceeding on some grounds.

2. The allegations levelled in the said complaint is that complainant/OP-2 placed an order for supply of paper mills equipments for modification of paper machine with accused No. 1 namely R.D. Desai, proprietor of D.S. Engineer on 30th September, 2009 for a sum of Rs. 75,69,380/-. In the said order it was specifically mentioned by the OP-2 that the accused No. 1 shall execute a performance bank guarantee which will be 10% of the purchase price and by virtue of such specific clause, the accused No.1 through his HDFC Bank Ahmadabad branch, where the accused No. 2 Biswanath Lyer and the petitioner herein /accused No. 3 are working as senior manager. Manager accordingly executed a bank guarantee for Rs. 8,30,000/-in favour of OP- 2/complainant duly signed by the petitioner herein /accused No. 3. It has been specifically mentioned by the bank authority that they would pay the guarantee amount to OP-2/complainant, if a written demand is made to the bank on or before September, 2011. OP-2/complainant vide letter dated 01.12.2010 demanded the guarantee money from the concerned bank through a demand draft, which issued in favour of OP-2 as the equipment purchased under order dated 30.09.2009 from accused No. 1 was not performing properly pursuant to which, the OP- 2/complainant had to suffer huge loss and damages.

3. However though the original bank guarantee was sent to the bank authority through courier service, but the bank mentioned that the original bank guarantee is not with the bank and the same is lying with accused No. 1 and hence the payment/guarantee money was not effected by the bank authority and for which the said complaint was filed.

4. Subsequent to filing of the aforesaid complaint, Chief Metropolitan Magistrate, Calcutta vide order dated 29.06.2011 was pleased to transfer the same to the court of the learned Metropolitan Magistrate, 14th Court, Calcutta for disposal. Subsequently the Metropolitan Magistrate 14th Court, Calcutta, vide his impugned order dated 27.07.2011, after taking cognizance, issued summon upon petitioner herein and other two accused persons.

5. Learned Counsel appearing on behalf of the petitioner submits that subsequent to receiving the copy of claim letter sent by OP-2 for the said guarantee money the petitioner/bank authority issued a letter dated 01.12.2011, requesting the accused No.1 to make arrangement of fund. He further submits that subsequent to receiving the claim letter and preparing the demand draft in favour for OP-2, the petitioner herein /bank authority on numerous occasions requested the OP-2 herein to send the original bank guarantee which was lying with him, but he did not pay any heed to that request. Finally through an e-mail correspondence, the OP-2 duly admitted that the original bank guarantee has been misplaced at their office and they are unable to find and /or locate the same. Therefore it is evident that there is a clear breach of contract on the part of OP-2 pursuant to which the petitioner herein cannot be held responsible for the alleged offence.

6. Mr. Das Gupta, on behalf of the petitioner attack