JUDGMENT
D.P. Sengupta, J.
1. The present revisional application has been directed against an order dated 6.8.2001 passed by the learned Metropolitan Magistrate, 13th Court, Calcutta in Case No. C/474/2001.
2. The present opposite party No.l filed a petition of complaint against the petitioner before the learned Chief Metropolitan Magistrate, Calcutta alleging Commission of an offence under Section 138 of the N.I. Act, The learned Magistrate took cognizance of the offence and process was Issued against the petitioner. The proceeding is now pending in the Court of learned Metropolitan Magistrate, 13th Court, Calcutta.
3. The present petitioner filed an application before the learned Magistrate with a prayer that since a police case, which was registered with Chinsurah police station at the instance of the present petitioner, is pending Investigation under Sections 420/406 IPC against present opposite party/ complainant, the proceeding under Section 138 N.I. Act should be dropped in view of the provision of Section 258 of the Code of Criminal Procedure, The said application was rejected by the learned Magistrate and hence this revision.
4. A perusal of Section 258 Cr.PC makes it clear that Section 258 Cr.PC does not apply to cases Instituted on complaint. It applies only to summons cases Instituted otherwise than upon a complaint. So, the learned Magistrate committed no wrong in rejecting the petition filed by the present petitioner/accused under Section 258 of the Code of Criminal Procedure.
5. In the FIR registered with Chinsurah PS at the instance of the present petitioner it was alleged that the petitioner (informant in the police case) issued a post dated cheque of Rs. 1,00,000/- being No. BA/4-915269 dated 23.11.2000 drawn on Allahabad Bank, Chinsurah Braneh in favour of the present complainant/OP. Thereafter for the convenience of the complain-ant/OP and at his request the aforesaid cheque was replaced by the present petitioner, who Issued two post dated cheques in favour of the complainant. The present petitioner was also assured by the complainant that he would return the earlier cheque bearing No. BA/4-915269 drawn on Allahabad Bank, Chinsurah Branch. But the complainant/OP refused to return the earlier cheque when he was requested by the petitioner to return the same.
Finding no other alternative the petitioner Issued a letter to the Managers of Allhabad Bank. Chlnsurah as also of United Bank of India, Bowbazar Branch with a request to “stop payment” in the said two accounts.
6. It is the contention of the petitioner’s learned Advocate that after the said case was registered the present proceeding under Section 138 of the N.I. Act was initiated when the cheque bearing No. 846231 dated 24.12.2000 was dishonoured by the United Bank of India, Bowbazar Branch. It is the submission of the learned Advocate of the petitioner that institution of the complaint case under Section 138 of the N.I Act is later in point of time than the police case which was registered earlier at the instance of the present petitioner. Such registration of the police case, which was very much within the knowledge of the present complainant/OP, was totally suppressed by the complainant in the petition of complaint under Section 138 N.I. Act. In such circumstances it is prayed that the proceeding under Section 138 NI Act should not be allowed to continue since a police case is pending investigation over the same dispute.
7. Mr. Arup Chatterjee, learned Advocate appearing for the complainant/ OP submits that the subject mater of dispute in the two cases are quite different and at this initial stage this Court should not Interfere with the proceeding in any way.
8. I have heard the learned Advocates of the respective parties. I have also persuade the relevant papers and documents which are annexed to this application. On a persual of the petition of complaint under Section 138 N.I. Act it appears that the concerned cheque involved in the said proceeding is 846321 dated 24.12.2000 which was dishonoured by UBI, Bowbazar Branch. On the otherhand the main allegation made in the FIR is that as per oral promise the complainant/OP refused to return the eailler cheque drawn by the present petitioner on the Allahabad Bank, Chinsurah Branch. So, on persual of both the complaint as also the FIR, I find that one does not have any connection with the other.
9. After persuing the petition of complaint under Section 138 of NI Act I find that a prima facie case is made out, which is sufficient for proceeding further in this matter. In my view, it will not be proper for this Court to Interfere with the proceeding at this initial stage.
The present revislonal application accordingly fails and the same is dismissed.
The learned Magistrate is directed to proceed with the trial and conclude the same with utmost expedition.
Let an urgent xerox certified copy of the order be given to the learned advocate for the parties at an early date if applied for.