Calcutta High Court (Appellete Side)
Indrajit Basak vs Subrata Maitra & Anr on 14 August, 2018
Author: Md. Mumtaz Khan
Bench: Md. Mumtaz Khan
1 11 14.08.2018
C.R.R. 754 of 2018 SB Ct. No. 42 Indrajit Basak Vs. Subrata Maitra & Anr.
Mr. Sibaji Kumar Das Mr. Anit Dey ..... For the Petitioner Mr. Ashok Kumar Jha ...... For the O.P. 1 The instant revision has been preferred by the petitioner /accused person under section 482 read with Section 401 of the Code of Criminal Procedure and is directed against the order dated March 12, 2018 passed by the learned Additional Sessions Judge, Fast Track, 4th Court, Barrackpore, North 24 Parganas in Criminal Revision No. 260 of 2016 wherein the order dated 27.05.2016 passed by the learned Judicial Magistrate, 3rd Court, Barrackpore, North 24 Parganas in Complaint Case No. C-343 of 2013 under Section 138 of the Negotiable Instrument Act was under challenge.
The learned Advocate appearing for the petitioner submits that Opposite Party No. 1 filed a complaint under Section 138 of Negotiable Instrument Act against this petitioner. Petitioner after receipt of notice appeared in that case and his plea under Section 251 Cr. P.C. was recorded and case was fixed for evidence. Thereafter, complainant / opposite party no. 1 did not appear and as such he was directed to show cause but neither he appeared nor filed any show cause though directed and accordingly, the learned Magistrate dismissed the complaint and acquitted the petitioner/accused under Section 256 of Code of Criminal Procedure. According to the learned Advocate for the petitioner, against the order of acquittal under Section 256 of Code of Criminal Procedure only appeal lies but instead of preferring an appeal Opposite Party preferred a revision before the learned Sessions Judge and the learned Sessions Judge allowed the said revision. 2 According to the ld. Advocate for the petitioner, ld. Sessions Judge was not justified in entertaining the revision and accordingly, the order passed by the ld. Sessions Judge suffers from material irregularity and illegality and liable to be set aside.
Learned Advocate appearing for the Opposite Party No. 1 admits that after recording the plea of the accused / petitioner case was proceeding for evidence and due to non taking of steps by complainant the complaint was dismissed and accused was acquitted under Section 256 of Code of Criminal Procedure. He also agrees that against the order of acquittal u/s. 256 CrPC only appeal lies but due to mistake revision was preferred. He submits that the Opposite Party No. 1 now intends to prefer appeal against the order of acquittal passed by the learned Magistrate.
Dismissal of the complaint and acquittal of the accused under Section 256 of Code of Criminal Procedure is a final order and against the said order only appeal lies. Instead of preferring any appeal, petitioner preferred revision which was not permissible under the law. Learned Court below was not justified in entertaining the revision against the final order passed under Section 256 of Code of Criminal Procedure. There appears irregularity and illegality in the impugned order which requires interference of this Court. Accordingly, the impugned order passed by the learned Court below in Criminal Revision No. 260 of 2016, is quashed and set aside. Thus, this revision is disposed of.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties upon compliance of requisite formalities.
(Md. Mumtaz Khan, J.)