JUDGMENT :

(Bibek Chaudhuri, J.) : –

1. The petitioners being the accused persons of GR Case No.1524 of 2015 arising out of Hare Street P.S Case No.397 dated 3rd July, 2015 under Section 406/420/120B of the Indian Penal Code (hereinafter described as the IPC) presently pending before the court of the learned Chief Metropolitan Magistrate, Calcutta have invoked the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure praying for quashing of the above mentioned proceedings pending against them.

2. Followings are the undisputed factual circumstances which laid to the dispute between the petitioners and the opposite party No.2:

a) The petitioners are the partners of Shree Raj Steal Products having its office at 20 Mullick Street within P.S – Burrabazar, Kolkata- 700007.

b) The opposite party No.2 is a businessman dealing with sale and supply of iron and steel materials including CR Coil. The petitioners placed an order for supply of 60.52 M.T of C.R Coil with the opposite party No.2. The opposite party No.2 sold said materials at a consideration price of Rs.24,24,723/- only and supplied the materials to the petitioners. The petitioners also issued five cheques dated 10th June, 2013, 21st June, 2013, 11th July, 2013, 22nd July, 2013 and 30th July, 2013 of different amounts, total being the entire consideration price for 60.52 Mt. C.R Coil. The opposite party No.2 presented the said cheques to the banker for encashment but the said cheques were dishonoured and returned to him. Subsequently, the petitioners paid a sum of Rs.8 lakh to the opposite party No.2 and at present the outstanding dues payable by the petitioners in favour of opposite party No.2 is Rs.16,24,723. The opposite party No.2 requested the petitioners repeatedly to make payment of such outstanding dues, but the petitioners went on delaying all the said payment of the said sum of one pretext or the other.

c) It is also an undisputed fact that the opposite party No.2 filed a complaint under Section 138/141 of the Negotiable Instrument Act against the petitioners after the cheques being dishonoured. The said petition of complaint was however returned to the opposite party No.2 by the learned Metropolitan Magistrate vide order dated 31st March, 2015 relying upon decision of the Hon’ble Supreme Court in the case of Dashrath Rupsingh Rathod vs. State of Maharashtra for filing the same to the court having jurisdiction.

d) The opposite party No.2 however did not file the said complaint under Section 138/141 of the Negotiable Instrument Act before the court having jurisdiction. On the contrary he filed a petition of complaint under Section 156(3) of the Code of Criminal Procedure alleging, inter alia, that petitioners entered into a criminal conspiracy to misappropriate the outstanding dues payable to the opposite party No.2 and thereby committed cheating upon him.

3. The learned Chief Metropolitan Magistrate sent the said petition of complaint to the Officer-in-Charge of Hare Street P.S directing him to treat the same as FIR and start a specific case against the petitioners. Accordingly, Hare Street P.S Case No.397 dated 3rd July, 2015 under Section 406/420/120B of the IPC was registered against the petitioners.

4. The petitioners has challenged the legality and validity of Hare Street P.S Case No.396 dated 3rd July, 2015 corresponding to GR Case No.1524 of 2015 by filing the instant application under Section 482 of the Code of Criminal Procedure on 28th January, 2016 and prayed for quashment of the proceeding.

5. It is submitted by Mr. Ayan Bhattacherjee, learned Advocate for the petitioners that the opposite party No.2 did not mention in the petition of complaint that he on the self same issue filed a complaint case under Section 138/141 of the Negotiable Instrument Act. The said complaint case was however returned to the complainant/opposite party No.2 with a direction to file the same before the court having jurisdiction on the basis of the judgment of th