Gautam Ch. Barman vs The State Of Assam And Anr
2021 Latest Caselaw 235 Gua

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GAHC010015942019




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                  Case No. : Crl.Pet./98/2019

            GAUTAM CH. BARMAN
            S/O. LT. NABIN CH. BARMAN, R/O. B.K. KAKATI ROAD, OPP. D.G.P. OFFICE
            BYE LANE, P.O. ULUBARI, GUWAHATI-781007, P.S. PALTANBAZAR,
            KAMRUP (M), ASSAM.



            VERSUS

            THE STATE OF ASSAM AND ANR.
            REP. BY THE PP, ASSAM.

            2:TAPASH BARUAH

             S/O. LT. DHIREN BARUAH
             C/O. T.P. CAR BAZAR
             NEAR L.P. SCHOOL
             DR. B.K KAKOTI ROAD
             KACHARI BASTI
             P.O. ULUBARI
             GUWAHATI-781007
             P.S. PALTANBAZAR
             KAMRUP (M)
             ASSAM

Advocate for the Petitioner   : MR. A K JAIN

Advocate for the Respondent : PP, ASSAM
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                                       BEFORE
                     HONOURABLE MRS. JUSTICE RUMI KUMARI PHUKAN

                                                   ORDER

Date : 27-01-2021

Heard the submission of learned counsel for the parties.

2. None appears for the respondent no. 2 despite name being shown in the cause list.

3. In view of the nature of prayer made in this petition and as the matter is pending since 2019 despite service notice upon the respondents, the matter is taken up for disposal at the admission stage itself.

4. The petitioner herein lodged a complaint before the Court of learned JMFC, Kamrup (M), Guwahati under Section 138 of the NI Act read with Section 420 of the IPC which was registered as Criminal Case No. 1000/2015 and the learned trial court took the cognizance of offence under the said Section of law.

5. However, in course of trial, charge under Section 138 NI Act was framed, it was a case of dishonor of two cheques that was issued by the respondent no. 2. The case proceeded for trial till the stage of argument.

6. At the argument stage the petitioner filed a petition under Sections 216 and 217 of the Cr.P.C. for adding Section 420 as additional charge in the proceeding of the said case. The learned trial court by an order dated 17.10.2017, rejected the prayer of the petitioner by relying on the decisions rendered by the Hon'ble Supreme Court.

7. The said order was assailed before the Revisional Court and the same was also dismissed. The petitioner is before this Court with the present petition, under Section 482 read with Section 401 of the Cr.P.C. for quashing of the order of the trial court as well as the Revisional Court dated 06.04.2018.

8. I have accordingly gone through the impugned orders of both the forums.

9. It is to be noticed that the entire complaint of the present petitioner was for dishonor of cheque that was issued by the respondent no. 2. The learned trial court on the petition filed by the petitioner while relying on the decision of the Hon'ble Supreme Court has observed that "the expression an amount of Page No.# 3/4

money........... is insufficient" appearing in Section 138 of the Act is a genus and dishonour for reasons such as account closed, payment stopped, referred to drawer are only species of that genus. Just as dishonor of a cheque on the ground that account has been closed is a dishonor failing in the first contingency referred to in Section 138, so also dishonor on the ground that the signatures do not match or the image is not found, which too implies that the specimen signatures do not match the signatures on the cheque would constitute a dishonor within the meaning of Section 138 of the Act."

10. The aforesaid finding of the court was also affirmed by the Revisional court by observing that to constitute an offence under Section 420 of the IPC, there must be some deception of any person fraudulently or dishonestly, on the part of the accused persons, but the same is not the case of the complainant.

11. In the instant case the Court was of specific opinion that the charges under Section 138 of the NI Act is made out against the accused/respondent and it is a special act pertaining to dishonor of cheque whereas Section 420 of IPC pertains to cheating and as such the essential ingredient of which is quite different from that of Section 138 of NI Act and there is a no specific averment in the complaint itself that such loan was availed by the accused/respondent on such inducement etc. vide Annexure 1.

12. The complaint petition totally silent on such inducement and there was a simple averment that such cheques were issued by the respondent No.2 to the complainant against the loan taken from the complainant. The cheque was returned to the complainant with the remark "Drawer Signature Authority Differs From". That being so, the Court being duly satisfied by the averments, charges under Section 138 of NI Act was framed skipping Section 420 of the IPC.

13. The only contention that has been raised by the present petitioner, who is the complainant in the said case that the accused has admitted his signature appearing on the cheques in his statement given under Section 313 Cr.P.C. and the bank official has stated that the signature is different in the said cheques issued by him and hence there is an element of cheating on the part of the accused/respondent no. 2, cannot be accepted in absence of any such evidence averred in the complaint or in the evidence.

14. Going by the language of Section 216 Cr.P.C., it is clear that it is up to the Court only who can alter the charges if such materials are produced during the course of trial to frame additional charges or to alter the charges at any point of time prior to the judgment.

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15. Going by the documents annexed, the complaint etc., it reveals that the learned trial court has rightly rejected the prayer of the petitioner and the same has already been affirmed by the learned Revisional Court. There being no illegality and irregularity in the order of the learned trial court there is a least scope to interfere with the impugned order by invoking the extraordinary power under Section 482 of Cr.P.C. Such a power is to be invoked when there is a misuse of power and/or miscarriage of justice and same cannot be exercised in a routine manner when there is no such illegality or irregularity found.

15. In the result, this Criminal Petition stands disposed of with a direction to the learned trial court to proceed with the matter and dispose of the same as per law.

JUDGE

Comparing Assistant