The opposite party no.4 had withdrawn the complaint against the
petitioner by filing application under Section 257 of the Code of Criminal
Procedure. Section 257 of the Code of Criminal Procedure reads as follows:-
“Withdrawal of complaint.- If a complainant, at any time before a final
order is passed in any case under this Chapter, satisfies the Magistrate that
there are sufficient grounds for permitting him to withdraw his complaint against
the accused, or if there be more than one accused, against all or any of them, the
Magistrate may permit him to withdraw the same, and shall thereupon acquit the
accused against whom the complaint is so withdrawn.”
On perusal of the provisions of Section 257 of the Code of Criminal
Procedure, it is crystal clear that it is the privilege of the complainant to withdraw
the complaint against all or any of the accused persons and the learned
Magistrate has the discretion to permit the complainant to withdraw the same
and if the complaint is withdrawn, the result will be acquittal of the accused
persons. Since the present petitioner being the accused no.4 in the petition of
complaint is not the Managing Director of the company and since the specific
averments are not made in the petition of complaint about the involvement of the
petitioner in the transaction of issuance of the cheque in question and since the
dispute between the present petitioner and the complainant was settled
amicably out of court, I am of the opinion that learned Magistrate rightly
exercised his jurisdiction by permitting the complainant to withdraw the
complaint against the present petitioner under Section 257 of the Code of
Criminal Procedure. The reasons furnished by learned Chief Judge, City Sessions
Court, Calcutta, for setting aside the order of learned Magistrate cannot be
accepted on the ground that it is the prerogative of the complainant to proceed or
withdraw against a particular accused person even when the liabilities are joint
and several under the law.
Calcutta high court
Dated;1.6.2014.
C.R.R. No.4245 of 2013
Raju mohandas Mahtaney
Vs
primus retail pvt ltd
Citation;2015 (3) Crimes 624 Cal
The petitioner has preferred this criminal revision challenging the order
dated 16th July, 2013 passed by learned Chief Judge, City Sessions Court, in
Criminal Revision No.60 of 2013, whereby learned Judge of the court below set
aside the order dated 4th April, 2013 passed by learned Metropolitan Magistrate,
13th Court, Calcutta in Case No.C-23839 of 2011 under Section 138 of the
Negotiable Instruments Act, 1881.
It appears from the materials on record that the opposite party no.4 started
a criminal proceeding against the petitioner and the opposite parties no.1 to 3 on
the allegation of committing offence under Section 138/141 of the Negotiable
Instruments Act, 1881 before the Court of learned Metropolitan Magistrate, 13th
Court, Calcutta. It also appears from record that the opposite party no.4 being
the complainant filed an application under Section 257 of the Code of Criminal
Procedure before the court of learned Magistrate for withdrawal of the
complainant against the present petitioner and learned Magistrate allowed the
said application on 4th April, 2013. It appears from the order dated 4th April,
2013 passed by learned Magistrate in the said complaint case that the
complainant is permitted to withdraw the complaint against the present 2
petitioner and he is acquitted of the charge. This order of learned Magistrate was
challenged by the co-accused persons by filing criminal revision no.60 of 2013
before the learned Chief Judge, City Sessions Court, Calcutta. It appears from
the judgement and order dated 16th July, 2013 passed by learned Chief Judge,
City Sessions Court, Calcutta, in the said criminal revision no.60 of 2013 that
learned Chief Judge set aside the order of learned Magistrate on the ground that
the complainant cannot withdraw the complaint in a piecemeal manner against a
particular accused person when other co-accused persons are facing the trial on
the allegation of committing offence under Section 138 of the Negotiable
Instruments Act, 1881.
With the above factual matrix, Mr. Ayan Bhattacharya, learned counsel
appearing on behalf of the petitioner submits that the complainant has the right
to withdraw the complaint against all or any of the accused persons as laid down
in Section 257 of the Code of Criminal Procedure, 1973. Mr. Bhattacharya also
submits that the present petitioner being the accused no.4 in the petition of
complaint is a Director of the company against whom specific averments are not
made in the petition of complaint about the transaction of the business of the
company and as such, the other co-accused persons cannot be prejudiced if the
complaint is withdrawn by the complainant against the present petitioner.
According to Mr. Bhattacharya, learned Chief Judge, City Sessions Court,
Calcutta, acted illegally without considering the provisions of Section 257 of the
Code of Criminal Procedure in its proper perspective. 3
Mr. Pratim Priya Dasgupta, learned counsel appears on behalf of the
opposite party no.4 by filing vokalatnama before this court and supports the
argument advanced by Mr. Bhattacharya. Let the vokalatnama filed by Mr.
Dasgupta be kept with the record.
None appears on behalf of the opposite parties no.1 to 3 and 5 in spite of
service of notice and copy of the application on those opposite parties as reflected
from the affidavit of service filed on behalf of the petitioner on the previous date
of hearing.
It is pertinent to point out that Mr. Anish Biswas, learned counsel
appeared on behalf of the opposite party no.1 to 3 on the previous date of hearing
that is on 21st March, 2014, but none appears on behalf of those opposite parties
on this date.
The opposite party no.4 had withdrawn the complaint against the
petitioner by filing application under Section 257 of the Code of Criminal
Procedure. Section 257 of the Code of Criminal Procedure reads as follows:-
“Withdrawal of complaint.- If a complainant, at any time before a final
order is passed in any case under this Chapter, satisfies the Magistrate that
there are sufficient grounds for permitting him to withdraw his complaint against
the accused, or if there be more than one accused, against all or any of them, the
Magistrate may permit him to withdraw the same, and shall thereupon acquit the
accused against whom the complaint is so withdrawn.”
On perusal of the provisions of Section 257 of the Code of Criminal
Procedure, it is crystal clear that it is the privilege of the complainant to withdraw
the complaint against all or any of the accused persons and the learned
Magistrate has the discretion to permit the complainant to withdraw the same
and if the complaint is withdrawn, the result will be acquittal of the accused
persons. Since the present petitioner being the accused no.4 in the petition of
complaint is not the Managing Director of the company and since the specific
averments are not made in the petition of complaint about the involvement of the
petitioner in the transaction of issuance of the cheque in question and since the
dispute between the present petitioner and the complainant was settled
amicably out of court, I am of the opinion that learned Magistrate rightly
exercised his jurisdiction by permitting the complainant to withdraw the
complaint against the present petitioner under Section 257 of the Code of
Criminal Procedure. The reasons furnished by learned Chief Judge, City Sessions
Court, Calcutta, for setting aside the order of learned Magistrate cannot be
accepted on the ground that it is the prerogative of the complainant to proceed or
withdraw against a particular accused person even when the liabilities are joint
and several under the law.
In view of my above findings, I am inclined to set aside the order passed by
learned Chief Judge, City Sessions Court, Calcutta. Accordingly, the criminal
revision is allowed. The judgment and order dated 16th July, 2013 passed by
learned Chief Judge, City Sessions Court, in Criminal Revision No.60 of 2013 is
set aside.
Let a copy of the order be sent down to the learned court below for favour
of information and necessary action.
Urgent photostat certified copy of this order, if applied for, shall be given to
the parties as expeditiously as possible.
(R. K. Bag, J.)
Print Page
petitioner by filing application under Section 257 of the Code of Criminal
Procedure. Section 257 of the Code of Criminal Procedure reads as follows:-
“Withdrawal of complaint.- If a complainant, at any time before a final
order is passed in any case under this Chapter, satisfies the Magistrate that
there are sufficient grounds for permitting him to withdraw his complaint against
the accused, or if there be more than one accused, against all or any of them, the
Magistrate may permit him to withdraw the same, and shall thereupon acquit the
accused against whom the complaint is so withdrawn.”
On perusal of the provisions of Section 257 of the Code of Criminal
Procedure, it is crystal clear that it is the privilege of the complainant to withdraw
the complaint against all or any of the accused persons and the learned
Magistrate has the discretion to permit the complainant to withdraw the same
and if the complaint is withdrawn, the result will be acquittal of the accused
persons. Since the present petitioner being the accused no.4 in the petition of
complaint is not the Managing Director of the company and since the specific
averments are not made in the petition of complaint about the involvement of the
petitioner in the transaction of issuance of the cheque in question and since the
dispute between the present petitioner and the complainant was settled
amicably out of court, I am of the opinion that learned Magistrate rightly
exercised his jurisdiction by permitting the complainant to withdraw the
complaint against the present petitioner under Section 257 of the Code of
Criminal Procedure. The reasons furnished by learned Chief Judge, City Sessions
Court, Calcutta, for setting aside the order of learned Magistrate cannot be
accepted on the ground that it is the prerogative of the complainant to proceed or
withdraw against a particular accused person even when the liabilities are joint
and several under the law.
Calcutta high court
Dated;1.6.2014.
C.R.R. No.4245 of 2013
Raju mohandas Mahtaney
Vs
primus retail pvt ltd
Citation;2015 (3) Crimes 624 Cal
The petitioner has preferred this criminal revision challenging the order
dated 16th July, 2013 passed by learned Chief Judge, City Sessions Court, in
Criminal Revision No.60 of 2013, whereby learned Judge of the court below set
aside the order dated 4th April, 2013 passed by learned Metropolitan Magistrate,
13th Court, Calcutta in Case No.C-23839 of 2011 under Section 138 of the
Negotiable Instruments Act, 1881.
It appears from the materials on record that the opposite party no.4 started
a criminal proceeding against the petitioner and the opposite parties no.1 to 3 on
the allegation of committing offence under Section 138/141 of the Negotiable
Instruments Act, 1881 before the Court of learned Metropolitan Magistrate, 13th
Court, Calcutta. It also appears from record that the opposite party no.4 being
the complainant filed an application under Section 257 of the Code of Criminal
Procedure before the court of learned Magistrate for withdrawal of the
complainant against the present petitioner and learned Magistrate allowed the
said application on 4th April, 2013. It appears from the order dated 4th April,
2013 passed by learned Magistrate in the said complaint case that the
complainant is permitted to withdraw the complaint against the present 2
petitioner and he is acquitted of the charge. This order of learned Magistrate was
challenged by the co-accused persons by filing criminal revision no.60 of 2013
before the learned Chief Judge, City Sessions Court, Calcutta. It appears from
the judgement and order dated 16th July, 2013 passed by learned Chief Judge,
City Sessions Court, Calcutta, in the said criminal revision no.60 of 2013 that
learned Chief Judge set aside the order of learned Magistrate on the ground that
the complainant cannot withdraw the complaint in a piecemeal manner against a
particular accused person when other co-accused persons are facing the trial on
the allegation of committing offence under Section 138 of the Negotiable
Instruments Act, 1881.
With the above factual matrix, Mr. Ayan Bhattacharya, learned counsel
appearing on behalf of the petitioner submits that the complainant has the right
to withdraw the complaint against all or any of the accused persons as laid down
in Section 257 of the Code of Criminal Procedure, 1973. Mr. Bhattacharya also
submits that the present petitioner being the accused no.4 in the petition of
complaint is a Director of the company against whom specific averments are not
made in the petition of complaint about the transaction of the business of the
company and as such, the other co-accused persons cannot be prejudiced if the
complaint is withdrawn by the complainant against the present petitioner.
According to Mr. Bhattacharya, learned Chief Judge, City Sessions Court,
Calcutta, acted illegally without considering the provisions of Section 257 of the
Code of Criminal Procedure in its proper perspective. 3
Mr. Pratim Priya Dasgupta, learned counsel appears on behalf of the
opposite party no.4 by filing vokalatnama before this court and supports the
argument advanced by Mr. Bhattacharya. Let the vokalatnama filed by Mr.
Dasgupta be kept with the record.
None appears on behalf of the opposite parties no.1 to 3 and 5 in spite of
service of notice and copy of the application on those opposite parties as reflected
from the affidavit of service filed on behalf of the petitioner on the previous date
of hearing.
It is pertinent to point out that Mr. Anish Biswas, learned counsel
appeared on behalf of the opposite party no.1 to 3 on the previous date of hearing
that is on 21st March, 2014, but none appears on behalf of those opposite parties
on this date.
The opposite party no.4 had withdrawn the complaint against the
petitioner by filing application under Section 257 of the Code of Criminal
Procedure. Section 257 of the Code of Criminal Procedure reads as follows:-
“Withdrawal of complaint.- If a complainant, at any time before a final
order is passed in any case under this Chapter, satisfies the Magistrate that
there are sufficient grounds for permitting him to withdraw his complaint against
the accused, or if there be more than one accused, against all or any of them, the
Magistrate may permit him to withdraw the same, and shall thereupon acquit the
accused against whom the complaint is so withdrawn.”
On perusal of the provisions of Section 257 of the Code of Criminal
Procedure, it is crystal clear that it is the privilege of the complainant to withdraw
the complaint against all or any of the accused persons and the learned
Magistrate has the discretion to permit the complainant to withdraw the same
and if the complaint is withdrawn, the result will be acquittal of the accused
persons. Since the present petitioner being the accused no.4 in the petition of
complaint is not the Managing Director of the company and since the specific
averments are not made in the petition of complaint about the involvement of the
petitioner in the transaction of issuance of the cheque in question and since the
dispute between the present petitioner and the complainant was settled
amicably out of court, I am of the opinion that learned Magistrate rightly
exercised his jurisdiction by permitting the complainant to withdraw the
complaint against the present petitioner under Section 257 of the Code of
Criminal Procedure. The reasons furnished by learned Chief Judge, City Sessions
Court, Calcutta, for setting aside the order of learned Magistrate cannot be
accepted on the ground that it is the prerogative of the complainant to proceed or
withdraw against a particular accused person even when the liabilities are joint
and several under the law.
In view of my above findings, I am inclined to set aside the order passed by
learned Chief Judge, City Sessions Court, Calcutta. Accordingly, the criminal
revision is allowed. The judgment and order dated 16th July, 2013 passed by
learned Chief Judge, City Sessions Court, in Criminal Revision No.60 of 2013 is
set aside.
Let a copy of the order be sent down to the learned court below for favour
of information and necessary action.
Urgent photostat certified copy of this order, if applied for, shall be given to
the parties as expeditiously as possible.
(R. K. Bag, J.)
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