Once a party is discharged in a proceeding, they cannot be summoned again without a challenge to that discharge order, as per the procedural requirements of the law.

JUDGMENT :

(Shampa Dutt (Paul), J.)

1. The present revision has been preferred praying for quashing of the proceedings as against the petitioner of complaint Case No. C-0075104 of 2016 (previously numbered as 4696 of 2012) under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881 as amended pending before the learned Metropolitan Magistrate 19th Court at Calcutta and order dated 01.07.2016 and order dated 18.01.2017 passed by the learned Metropolitan Magistrate 19th Court at Calcutta in Complaint Case No. C-0075104 of 2016 (previously numbered as 4696 of 2012).

2. The petitioner’s case is that a complaint was initiated under Sections 138/141 of the Negotiable Instruments Act, 1881 by the opposite party against the petitioners.

3. In spite of service the opposite parties are not represented.

4. Mr. Dhiraj Trivedi, learned counsel has represented the petitioners.

5. On hearing Mr. Trivedi and on perusal of the materials on record, the following facts are before this Court:-

i. Initially the proceedings was numbered as C-4696/12.

ii. Vide order dated 17.03.2012, on inquiry the learned Metropolitan Magistrate, 5th Court, Calcutta, held as follows:-

“However at the time of issuance of the cheque in question, it cannot be said the accused persons who were not directors of accused no. 1/Pabanso India Pvt. Ltd. can be held liable U/s 138 read with Section 141 of the NI Act. Accordingly process cannot be issued against accused no. 6 and 7 and they are discharged from the case.

However materials on the record suggest that all other accused persons have committed an offence U/s 138 of the NI Act read with Section 141 of the NI Act and accordingly issue summons against accused no. 1 to 5.”

iii. The accused no. 6 & 7 are the petitioners herein.

iv. It is submitted that thereafter the case was transferred to the learned Judicial Magistrate at Surat for trial and disposal. Subsequently on coming into force of Ordinance on 15.06.2015, the said case was once again transferred back to the Court of the Chief Metropolitan Magistrate at Calcutta-700001 and renumbered as Case No. 00175104 of 2016 and was subsequently transferred to learned Metropolitan Magistrate 19th Court at Calcutta for trial and disposal. Thereafter the opposite party no. 1 adduced evidence by an affidavit as per provision of Section 145 of the said Act on 01.07.2016 and the learned Magistrate without taking into consideration the previous orders and the fact that the name of the petitioners had been expunged from the array of the accused persons and that they had been discharged from the above case by an order dated 17.03.2014, mechanically issued process against the petitioners on 01.07.2016.

v. Prayer for expunging the names of the petitioners on the ground of order dated 17.03.2012 was rejected vide order dated 18.01.2017, wherein the Court held as follows:-

“It is a fact that vide order dated 17.03.12 ld.

Metropolitan Magistrate, 5th Court, Calcutta was pleased not to issue process against the accused no. 6 and 7 and they were accordingly discharged from the case and thereafter, the said case was transferred before the Ld. Metropolitan Magistrate of Surat (Gujrat) and when the said record was retransferred Ld. C.M.M., Calcutta was pleased to take cognizance of the same and then it was transferred to this Court for disposal of the case and accordingly process was issued against all the accused persons. Thereafter, the said accused no. 6 took bail on 06.12.16 and since the date of taking bail he did not whisper a single word in respect of expunging his name from the cause title of the instant case. In my opinion when the process has already been issued by this Court, this Court does not have any power to review or recall its own order. Hence the instant petition stands rejected.”

vi. The Court then issued warrant of arrest.

6. The said order is under challenge in this revision.

7. Admittedly its on record that the petitioners had been discharged vide order dated 17.03.1