IN THE HIGH COURT AT CALCUTTA

CRIMINAL REVISIONAL JURISDICTION

APPELLATE SIDE

Present:-

HON’BLE JUSTICE CHAITALI CHATTERJEE DAS.

CRR 3770 OF 2008

RAM NARAYAN GUCHAIT

VS

THE STATE OF WEST BENGAL & ANR.

For the petitioner : Mr. Prabir Kr. Mitra, Sr. Adv.

Ms. Subhanwita Ghosh, Adv.

Amicus Curiae : Mr. Tanmoy Chowdhury.

Last heard on : 11.07.2025 Judgement on : 21.08.2025

CHAITALI CHATTERJEE DAS, J. :-

1. This is an application under Section 401 read with Section 397 and Section

482 of the Code of Criminal Procedure,1973 filed by the petitioner against an judgement and order dated September 4, 2008 passed by the Learned Additional Sessions Judge, 4th Court, Purba Medinipur in connection with criminal appeal no 23 of 2008, dismissing the appeal filed by the petitioner upholding the judgement and order passed by the Learned Judicial Magistrate, 3^rd Court, Purba Medinipur in C.R. case no 230 of 2006 passed on April 7, 2008 ,convicting the petitioner under Section 138 of Negotiable Instrument Act 1881 and sentencing the petitioner to suffer simple imprisonment for 2 years

and to pay a fine of Rs. 10 thousand in default to go further simple imprisonment for 6 months.

2. The case of the petitioner emanated from the complaint lodged by the Opposite Party no. 2 under Section 138 of the Negotiable Instrument Act 1881, on May 8, 2006 alleging inter alia that the petitioner used to do business on credit from Opposite Party no 2 and in order to discharge his liability had issued a cheque amounting Rs. 18, 35,000 to the Opposite Party no. 2 and the same was dishonoured while depositing with the banker due to “insufficiency of fund”. It was further alleged that in spite of giving demand notice the petitioner failed to pay the money. Cognizance was taken in the matter and summons was issued by the Learned Court and accordingly the petitioner had to face the trial. The Learned Court passed the order of conviction vide order dated April 7, 2008 against which criminal appeal was preferred before the Learned Session Judge, Purba Medinipur registered as Criminal appeal no 23 of 2008.The Learned Additional Session Judge 4^th Court affirmed the order of conviction passed by the Judicial Magistrate, 3^rd Court by an order dated September 4, 2007. Being aggrieved thereby this revisional application has been filed.

3. The Learned Advocate appearing on behalf of the petitioner submitted that in the complaint the firm was not made a party nor the firm was notified under Section 138-B of the Negotiable Instrument Act. The petitioner while deposing as P.W.1 mentioned about two companies namely “Bescon and Pure Coke” who got the contract for construction of the petrol Pump but the accused belong to neither “Bescon and Pure Coke” . It is the contention of the learned advocate that the complaint was not maintainable on account of such deficiency and in this regard the Learned Advocate relied upon the following decisions ; MonabenKetanbhai Shah & Anr. Vs. State of Gujrat & Anr. para 3,6,7,8,Maksud Saiyad vs State of Gujrat & Ors., (2008) 5 SCC 668Para 13, Sushil Shetty & Anr. Vs State of Arunachal Pradesh & Ors., (2020) 3 SCC page 240, para 7.5 and

8.2.

4. It was further argued that the proceeding under Section 138 Negotiable Instrument Act ought to have been tried summarily by the First Class Judicial Magistrate or by a Metropolitan Magistrate after following the provision as enumerated under Section 262 to 265 of Cr.Pc. The Learned Advocate in this regard relied upon the decisions in RE; Suo motu writ petition (CRL) no 2 of 2020 decided on April 16, 2021 expeditious trial of cases under Section

138 of NI Act. where in para 24.1 it was observed.

24.1 That the Magistrate before converting a complaint case from summary trial to summons case, the Magistrate has to record the reasons otherwise the purpose for which Section 143 of the act introduced could be defeated.

5. Accordingly it is submitted that on account of the deficiencies as discussed above and for non-compliance of the statuto