The main legal point established in the judgment is the limitation on the court's power to recall the process and the necessity of complying with statutory provisions in the issuance of process under Section 138 of the Negotiable Instruments Act.

JUDGMENT :

Ananya Bandyopadhyay, J.

1. The instant revisional application has been filed by the petitioner for quashing of proceeding being C.R. Case No. 93/2008 under Section 138 of Negotiable Instruments Act pending in the Court of the Learned Additional Chief Judicial Magistrate, Jhargram, Paschim Medinipur.

2. Petitioner stated that the above mentioned case was initiated on the basis of one complaint filed by the opposite party no. 2 alleging inter alia that the petitioner happened to be his neighbour. The petitioner asked him to render financial assistance for running his business and on an assurance that he would be provided a good plot of land, the opposite party no. 2, handed him an amount of Rupees Five Lakhs Fifteen Thousand only out of which Rupees Thirty Thousand was repaid by the petitioner. Thereafter on persuasion of the opposite party no. 2, the petitioner issued a post dated Cheque being No. 383388 dated 22.02.08 of Rupees Eight Lakhs which on presentation for encashment was returned unpaid with the endorsement “full cover not received”. Thereafter on fulfillment of statutory requirement the complaint was made.

3. The petitioner stated that on receipt of summons from the Learned Court he entered his appearance and pleaded not guilty on being informed of the accusation and as such date was fixed for evidence.

4. At this state after examination of case record the petitioner came to know that the Learned Magistrate without taking cognizance of the offence as alleged, without complying with the provision of Section 200 of the Code of Criminal Procedure, 1973, issued process against him and also proceeded with the case.

5. The petitioner, then, on advice, filed an application before the Learned Magistrate praying for dismissal of the complaint and discharging him from the case on the ground of non compliance of Section 200 of the Code of Criminal Procedure, 1973 and for non-compliance of Section 145 of Negotiable Instrument Act on the part of the opposite party no. 2.

6. The said application was dismissed by the Learned Magistrate on 30.07.2010 inter alia holding that though the contention of the petitioner was true but process had been issued by his predecessor in office and there was no scope of recalling of summons once it was issued or to dismiss the complaint.

7. Learned Advocate for the petitioner submitted that –

i. The issuance of process in the instant case was illegal, improper and seriously prejudiced the petitioner.

ii. There was no statutory provision which enabled the Learned Magistrate to issue process on the complaint filed by a person in his personal capacity without taking cognizance first which was evident from the fact of non-compliance of the provisions of Section 200 of the Code of Criminal Procedure, 1973.

iii. Relevant statutory provision mandated the Learned Magistrate to comply with Section 200 of the Code of Criminal Procedure, 1973 before issuing process against any person shown as accused in the complaint.

iv. Initiation of proceeding by the Learned Magistrate was unwarranted and suffered from serious illegality.

v. The Learned Magistrate ought to have taken note of the fact that there was no compliance with Section 145 of Negotiable Instrument Act, 1973 before proceeding with the case.

vi. The compliance with Section 200 of the Code of Criminal Procedure, 1973 was not a mere formality but it was meant to serve several purposes more so it was at the stage which indicated that the Learned Magistrate had taken cognizance of the offence in other words he had applied his mind to the complaint and as such non compliance thereof vitiated the proceeding.

8. The Learned Advocate for the opposite party no. 2 submitted that the petitioner filed the present revisional application before this Hon’ble High Court challenging the order dated 18.02.2011 passed by the Learned Sessions Judge, Paschim Medinipur in criminal revision no. 284 of 2011 whereby order of the Learned Magistrate was affirmed and for the same re