‘One cannot suffer for fault of advocate’; order of Magistrate quashing the complaint set aside

Calcutta High Court: A Single Judge Bench comprising of Md. Mumtaz Khan, J. allowed a revision petition against the order of the Magistrate whereby the petitioner’s complaint filed under Section 138 of the Negotiable Instruments Act, 1881 was quashed.

The complaint filed by the petitioner was quashed in the exercise of power under Section 204(4) CrPC for want of requisites. Additionally, the Magistrate had also passed an order of acquittal of the accused under Section 256. The petitioner was asked to submit the requisites necessary to issue summons against the accused. However, after giving repeated opportunities, there was no submission of requisites by the petitioner. Even the show cause notice was not responded to. Resultantly, the Magistrate passed the above-mentioned order. Aggrieved thereby, the petitioner preferred the instant revision.

The High Court perused the record and was of the view that the order impugned was not sustainable. It was noted that one of the requisites to be submitted was the processing fee. Section 204(4) provides for dismissal of the complaint for non-payment of process fee. Moreover, the matter was at the stage of issue of summons. The accused had neither appeared in the case nor it was at the stage of evidence. Thus, the Magistrate was in error for exercising power under Section 256 and recording acquittal. Furthermore, as far as an order under Section 204(4) was concerned, the petitioner had shown sufficient cause for not being able to submit the requisites. The reason was shown to be fraud played by its advocate for which complaint had been registered with the police and also a complaint was given to the Bar Council. A copy of both the complaints were produced before the Court. The Court was of the view that one could not be allowed to suffer for fault of the advocate. In the opinion of the Court, the order impugned required interference. Therefore, in light of the above, the order passed by the Magistrate under Sections 204(4) and 256 CrPC was quashed. The complaint was restored to the file. The revision was allowed accordingly. [ACME Paints and Resin (P) Ltd. v. Deb Paints (P) Ltd., 2018 SCC OnLine Cal 7054, dated 28-09-2018]

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