Gauhati High Court
Crl.Pet./156/2018 on 2 March, 2023
Page No.# 1/16
GAHC010037192018
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
Crl. Pet. No. 156 of 2018
Sri Pradip Patangia, Age- 48 years,
S/o Sri Mukheswar Patangia,
P.O.-Dekargaon, P.S.- Tezpur,
District- Sonitpur, Assam
Pin - 784501.
..................Petitioner
-Versus-
Dr. Tarulata Saikia,
W/o Dr. Jayanta Kr. Das,
R/o- Village-Udmari Borjhar,
P.O.- Dekargaon, Mouza- Haleswar,
P.S.- Tezpur, District. - Sonitpur (Assam).
Pin - 784501
...............Respondent
Advocates for the appellant : Mr D C Kath Hazarika,
Ms J Kalita.
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Advocate for the respondent : Mr P K Singha
With
Crl. Pet. No. 242 of 2018
Sri Gul Kumar Kalita @ Papu Kalita, Age- 41 years,
S/o Late Hridaya Kalita,
R/O- Village- Mazgaon Tamuli Chuburi,
P.O. & P.S.- Tezpur,
District - Sonitpur, Assam,
Pin- 784001
..................Petitioner
-Versus-
Dr. Tarulata Saikia,
W/o Dr. Jayanta Kr. Das,
R/o- Village-Udmari Borjhar,
P.O.- Dekargaon, Mouza- Haleswar,
P.S.- Tezpur, District. - Sonitpur (Assam).
Pin - 784501
...............Respondent
Advocates for the appellant : Mr D C Kath Hazarika,
Ms J Kalita.
Advocate for the respondent : Mr P K Singha
BEFORE
HON'BLE MRS. JUSTICE MALASRI NANDI
Date of Judgment : 02.03.2023
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JUDGEMENT AND ORDER (CAV)
Heard Mr D C Kath Hazarika, learned counsel appearing on behalf of both the
petitioners and Mr P K Singha, learned counsel appearing on behalf of the respondent
2. Both the criminal petitions have been taken up together as they relate to the same set
of incidents.
3. The criminal petitions, being Criminal Petition No. 156 of 2018 and Criminal Petition No.
242 of 2018, are being filed under Section 482 CrPC, 1973, for quashing of Negotiable
Instrument proceeding, vide NI Case No. 6 of 2017 and NI Case No. 7 of 2017, pending in the
Court of learned Additional CJM, Sonitpur, Tezpur, to avoid the abuse of process of law and to
secure ends of justice.
4. The instant application, being Criminal Petition No. 156 of 2018 is filed by the petitioner,
Pradip Patangia for quashing of the written complaint dated 24.01.2017, against him under
Section 138 and 142 of the Negotiable Instruments Act, 1881 (hereinafter, referred to as "the
NI Act"), before the learned CJM, Sonitpur, Tezpur (Assam), which has been registered as NI
Case No. 6 of 2017, whereby the complainant has claimed for payment of alleged legally
enforceable debt.
5. The criminal petition, being Criminal Petition No. 242 of 2018, is being filed by the
petitioner Gul Kumar Kalita @ Papu Kalita for quashing of the complaint dated 24.01.2017,
filed by the respondent/complainant against him under Sections 138 and 142 of the NI Act,
before the learned CJM, Sonitpur, Tezpur (Assam), vide NI Case No. 07 of 2017, whereby the
complainant has claimed for payment of alleged legally enforceable debt.
6. The brief facts of the case is that the respondent/ complainant in consultation with her
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husband decided to buy a plot of land to build their dwelling house. The petitioner, Pradip
Patangia and his friend, Gul Kumar Kalita @ Pappu Kalita, who deal in lands, having come to
know about the respondent/complainant's desire for purchasing a suitable plot of land,
approached the respondent/complainant and her husband with an offer of sale of a plot of
land. They offered a plot of land measuring 2 kathas covered under Dag No. 525 of P.P. No.
124, situated at Harigaon. They told her that the owners of the said land had executed a
Power of Attorney No. 28 dated 28.02.2014, in favour of Gul Kumar Kalita, which was duly
registered before the Sr. Sub-Registrar, Sonitpur. By the said Power of Attorney, the owners of
the said land bestowed all the powers to Gul Kumar Kalita, to take decision upon the said
land. Thereafter, the complainant and her husband talked with both the petitioners and the
price of the land was fixed at Rs. 13,60,000/- (Rupees Thirteen Lacs Sixty Thousand) only.
The petitioners requested for advance money and the complainant and the petitioner, Gul
Kumar Kalita entered into an agreement for sale, which was duly notarized vide Sl. No.
227/2015. On the date of execution of the sale deed, the respondent/complainant paid a sum
of Rs. 3,60,000/- (Rupees Three Lacs Sixty Thousand) only vide Cheque Nos. 119616 &
119617, drawn on SBI, Tezpur Branch, in favour of the petitioner, Gul Kumar Kalita. Both the
petitioners had given the understanding that the amount would be shared equally even if the
cheque were issued to only one of them. The petitioners further agreed and assured to
obtain necessary permission from the concerned offices.
7. The petitioners during the first week of October, 2015, approached the
respondent/complainant and offered to sell another plot of land measuring 1 katha covered
under Dag No. 524 of P.P. No. 124, which is adjacent to the earlier land.
The respondent/complainant found the offer suitable and agreed to purchase the same. The
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price of the said land was fixed at Rs. 6,80,000/- (Rupees Six Lacs Eighty Thousand) Only.
The petitioners were doing the dealings together. A request for advance money was made
and an agreement between the respondent/complainant and the petitioners was entered into
on 01.12.2015, which also duly notarized vide Sl. No. 1323/2015, dated 03.12.2015. On the
date of execution of the said deed, the complainant paid a sum of Rs. 2,00,000/- (Rupees
Two Lakhs) only, in cash which was duly received by the petitioners. The petitioners agreed
to obtain necessary permission from the concerned offices.
8. In between this period, both the petitioners requested for some more amount and
accordingly, through different cheques, amounts were further paid. The
respondent/complainant requested the petitioners to give in writing in regard to the different
payments received by them on different dates in connection with the said agreement of the
land. Both the petitioners executed an agreement dated 01.12.2015, wherein they gave the
details of the money received and mentioned the cheque number(s) and Bank, through which
they had received the total amount of Rs. 13,60,000/- (Rupees Thirteen Lacs Sixty Thousand)
Only. The agreement was duly notarized before the Public Notary, vide Sl. No. 1324/2015
dated 03.12.2015. Thus, both the petitioners jointly received the entire amount from the
respondent/complainant towards the sale agreement dated 21.05.2015.
9. Subsequently, the respondent/complainant enquired about the sale permission and
about the execution of the sale deed. The petitioners kept on promising that within a couple
of months' time, the permission would be received from the concerned offices. The
respondent/complainant believed the words of the petitioners and waited for months. On
17.10.2015, the petitioners in collusion with officials of Sub-Registry Office, Tezpur, deceived
the respondent/complainant, inducing her to believe that the registration process for
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execution of the sale of agreed land was being done in accordance with law. Both the
petitioners induced the respondent/complainant to such fake belief just to grab the sale
consideration amount fraudulently,. Since after discovery of the fraudulent act on the part of
the petitioners and also on discovery of the fact that also there were some disputes
pertaining to the land to be sold, the respondent/complainant asked both the petitioners to
refund the entire amount so far received. Thereafter, the petitioners executed one deed of
cancellation on 04.06.2016, cancelling all the agreements for sale of land and agreed to
refund the entire amount taken jointly by them. The petitioners handed over three post-dated
cheques for a total amount of Rs. 14,60,000/- (Rupees Fourteen Lacs Sixty Thousand)Only.
The reason behind the issue of post-dated cheques were that at the relevant time of
cancellation of the deed, the petitioners did not have sufficient amount in their accounts to
cash the said cheque amount.
10. The petitioner, Gul Kumar Kalita, just to clear their legally enforceable debt towards the
respondent/complainant had issued one cheque bearing No. 000014 for an amount of Rs.
7,00,000/-only drawn on the HDFC Bank, Tezpur Branch, dated 16.08.2016. The petitioner,
Pradip Patangia issued one cheque for an amount of Rs. 7,00,000/- (Rupees Seven Lacs)
Only, drawn on the State Bank of India, Tezpur Branch, dated 16.08.2016 and another
cheque for Rs. 60,000/- (Rupees Sixty Thousand) Only. On 16.08.2016, the
respondent/complainant enquired about the banker of the petitioner, Pradip Patangia as well
as the bank account of the petitioner Gul Kumar Kalita, as to the availability of fund to cash
the cheque amounts handed over to the respondent/complainant, but to her utter shock and
surprise, the respective bank officials verbally informed the respondent/complainant that
there were not sufficient funds maintained in their accounts to get the cheque amounts.
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Immediately, the respondent/complainant lodged the FIR against both the petitioners before
the Tezpur Police Station, vide Tezpur PS Case No. 1414 of 2016, under Sections 420/406/468
IPC. On the basis of the said FIR, the concerned Police arrested the petitioner, Pradip
Patangia, who later secured bail. Subsequently, the petitioner Gul Kumar Kalita @ Pappu
Kalita, approached before the learned Sessions Judge, Sonitpur, for granting pre-arrest bail,
which was rejected. Then he approached before this Court and interim bail was granted with
a direction to give an undertaking to refund the cheque amount to the complainant.
Subsequently, the respondent/complainant presented the said cheque to her banker, namely,
Indian Overseas Bank, Tezpur Branch, under genuine belief that this time the cheque will be
honoured in terms of the undertaking given before this Court. But, surprisingly, the cheque
was dishonoured, due to "Cheque Stop Instruction". The said intimation memo was received
by the respondent/complainant on 11.11.2016. Then the complainant sent a legal notice to
the petitioners through her Advocate by registered post under Section 138 of the NI Act,
bringing to his knowledge the dishonor of the cheque due to Cheque Stop Instruction.
Despite information, the petitioners had not paid the amount till filing of the complaint before
the learned trial Court.
11. Thereafter, the respondent/complainant finding no other alternative has approached
before the learned trial Court by filing a case under Section 138 of the NI Act, against both
the petitioners.
12. It is submitted by the learned counsel for the petitioners that in the proceeding in
question, the respondent/complainant brought on record the agreement dated 01.12.2015,
and 04.06.2016, as which the respondent claimant has relied upon and procured cheque
0000014, dated 16.08.2016, drawn on HDFC Bank, Tezpur Branch for 7 lacs and another 7
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lacs, vide Cheque No, 305949, dated 16.08.2016, drawn on SBI Branch, which are void as
because they were unauthorized persons to settle the dispute through compromise on behalf
of the owners of the land with intending purchaser of the land, i.e., with the
respondent/claimant, by inducting a stranger to the contract.
13. It is also submitted by the learned counsel for the petitioners that during the course of
defence argument on charge, the learned counsel for the petitioner has pointed out to the
learned trial court, regarding aforesaid agreements as brought on record are not enforceable
by law and same are void. Further, it has drawn up attention of the learned Court that the
respondent/complainant procured the said cheque on the basis of aforesaid contracts, which
are immaterial and have no significance on the statutory proceeding which are inadmissible
under Section 145 of the NI Act. Hence, the charge framed against the present petitioners
are considered to be an abuse of the process of the Court, and the impugned criminal
proceedings bearing NI Case No. 06/2017, dated 24.01.2017 and NI Case No. 07/2017, dated
24.01.2017, respectively, should be set aside.
14. In support of his submission, the learned counsel for the petitioners has placed reliance
on the following caselaws:-
1) (2010) 3 SCC 83; (Mandvi Cooperative Bank Limited vs. - Nimesh B
Thakore)
2) (2022) SCC Online SC 1312; (Ram Kumar Vs. State of Rajasthan & Others.)
15. On the contrary, learned counsel for the respondent/claimant has submitted that the
petitioners have raised disputed questions of facts. Those cannot be adjudicated by this Court
in a petition under Section 482 CrPC
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16. It is further submitted that once the cheque has been issued by the petitioners there is
a presumption under Section 139 of NI Act that the same has been issued in discharge of
legally enforceable liability and therefore, once the petitioners have admitted their signatures
on the impugned cheques they could not confront their liability to pay. It is further submitted
that the notice of demand was given as required under Section 138 of Act and therefore,
within time and therefore, no illegalilty has been committed by the learned trial Court in
framing of charge. In support of his submission, the learned counsel for the respondent has
cited the following caselaws:-
1) AIR 1998 SC 1400; (Tarsem Singh vs. Sukhminder Singh)
2) (2002) 6 SCC 426; (I.C.D.S. Ltd. vs. Beena Shabeer & Anr. )
3) (2004)24 GLH 726; (Chetanbhai Vasantbhai Mistary Vs. State of
Gujarat).
4) AIR 2010 SC 1898; (Rangappa vs. Sri Mohan)
5) (2012) 7 SCC 621 ( Sangeetaben Mahendrabhai Patel vs. State of
Gujarat & Anr.)
6) (2015) 3 SCALE 832 (HMT Watches Ltd. vs. M. A. Abida & Ors.)
17. I have considered the submissions of learned counsel for both the parties. I have also
perused the scanned copy of record of NI Case No. 6 of 2017 and NI Case No. 7 of 2017.
18. Having heard the learned counsel for the parties and having perused the record, it is
fruitful to have a glance on the relevant provisions of NI Act, which appear necessary for the
disposal of this petition. Section 138 of the NI Act reads as under:-
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"Where any cheque drawn by a person on an account maintained by him with a banker for
payment of any amount of money to another person from out of that account for the
discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid,
either because of the amount of money standing to the credit of that account is insufficient to
honour the cheque or that it exceeds the amount arranged to be paid from that account by
an agreement made with that bank, such person shall be deemed to have committed an
offence and shall, without prejudice to any other provision of this Act, be punished with
imprisonment for [a term which may be extended to two years'], or with fine which may
extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless--
(a) the cheque has been presented to the bank within a period of six months from the date
on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a
demand for the payment of the said amount of money by giving a notice; in writing, to the
drawer of the cheque, [within thirty days] of the receipt of information by him from the bank
regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the
payee or, as the case may be, to the holder in due course of the cheque, within fifteen days
of the receipt of the said notice."
Section 142 of Negotiable Instruments Act reads as under :
"(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of
1974),-
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(a) no court shall take cognizance of any offence punishable under section 138 except upon a
complaint, in writing, made by the payee or, as the case may be, the holder in due course of
the cheque;
(b) such complaint is made within one month of the date on which the cause of action arises
under clause (c) of the proviso to section 138:
[Provided that the cognizance of a complaint may be taken by the Court after the prescribed
period, if the complainant satisfies the Court that he had sufficient cause for not making a
complaint within such period;]
(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first
class shall try any offence punishable under section 138.
(2) The offence under section 138 shall be inquired into and tried only by a court within
whose local jurisdiction-
(a) if the cheque is delivered for collection through an account, the branch of the bank where
the payee or holder in due course, as the case may be, maintains the account, is situated; or
(b) if the cheque is presented for payment by the payee or holder in due course, otherwise
through an account, the branch of the drawee bank where the drawer maintains the account,
is situated."
19. On a bare look at the aforesaid provisions it reveals that under Section 138 of the NI
Act, where a cheque is issued by the drawer in the discharge of any debt or any other liability
is returned by the bank unpaid, because the amount standing to the credit of that account is
insufficient to honour the cheque,the said person is deemed to have committed an offence,
subject to proviso to Section 138 which provides that the cheque should have been presented
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to the bank within the period of six months from the date of which it is drawn or within the
period of its validity, whichever is earlier.
20. The payee must also make a demand for the payment of the said amount by giving a
notice in writing to the drawer of the cheque within 30 days of the receipt of the information
by him from the bank regarding the return of the cheque unpaid, despite this demand, the
drawer fails to make the payment within fifteen days of the receipt of the notice, a cause of
action arises for prosecuting him for the offence punishable under Section 138 of the Act.
Section 142 provides that the court shall take cognizance of an offence punishable under
Section 138 of the Act upon receipt of a complaint in writing made by the payee or, as the
case may be, the holder in due course of the cheque. Such complaint must be made within
one month of the date on which the cause of action arises under Clause (c) of the proviso to
Section 138. However, discretion is given to the court to take cognizance of the complaint
even after the prescribed period, if the complainant satisfies the court that he had sufficient
cause for not making the complaint within such period.
21. It is not disputed that the drawer of the cheque makes himself liable for prosecution
under Section 138 of the Act if he fails to make the payment within fifteen days of the receipt
of the notice given by the drawee. His failure to make the payment within the stipulated
period gives rise to a cause of action to the complainant to prosecute the drawer under
Section 138 of the Act.
22. Having regard to the conditions which are required to be fulfilled before summoning any
personto face the trial with regard to Section 138 of the Negotiable Instruments Act, prima
facie it appearsthat those requirements/conditions have apparently been fulfilled.
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23. What is emerging from the materials on record is that the signatures of the petitioner,
Pradip Patangia on the cheque cheque bearing No. 305949, dated 16.08.2016, drawn on SBI,
and Gul Kumar Kalita on cheque cheque bearing No. 000014 dated 16.08.2016, drawn on the
HDFC Bank, Tezpur Branch are not disputed by the petitioners. The petitioners have also not
disputed that there are transactions between the parties. Therefore, once the petitioners
have admitted that the cheques bear their signature there is presumption that there exists a
legally enforceable debt or liability under Section 139 of the N.I. Act. However, such a
presumption is rebuttable in nature and the accused is required to lead the evidence to rebut
such presumption.
24. In the case of K.N. Beena vs. Muniyappan; (2001) 8 SCC 458, it is observed that
under Section 118 of the N.I. Act, unless the contrary is proved, it is to be presumed that the
negotiable instruments (including a cheque) had been made or drawn for consideration. It is
further observed and held that under Section 139, the Court has to presume, unless the
contrary is proved, that the holder of the cheque received the cheque for discharge, in whole
or in part, of a debt or liability. It is further observed that thus in complaints under Section
138, the Court has to presume that the cheque had been issued for a debt or liability. This
presumption is rebuttable. However, the burden of proving that the cheque has not been
issued for a debt or liability is on the accused.
25. In the case of Rangappa vs. Sri Mohan, (2010) 11 SCC 441 Hon'ble Supreme Court held
as under:-
"Section 139 of the Act is an example of a reverse onus clause that has been included in
furtherance of the legislative objective of improving the credibility of negotiable instruments.
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While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of
cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in
the course of litigation. However, it must be remembered that the offence made punishable
by Section 138 can be better described as a regulatory offence since the bouncing of a
cheque is largely in the nature of a civil wrong whose impact is usually confined to the private
parties involved in commercial transactions. In such a scenario, the test of proportionality
should guide the construction and interpretation of reverse onus clauses and the defendant
accused cannot be expected to discharge an unduly high standard or proof."
26. In Kisan Rao vs. Shankargouda, (2018) 8 SCC 165 after considering the decision of
Hon'ble Supreme Court in the case of Kumar Exports vs. Sharma Carpets, (2009) 2 SCC 513,
it is observed by Hon'ble Supreme Court that the accused may adduce evidence to rebut the
presumption, of section 139 of N I Act but mere denial regarding existence of debt shall not
serve any purpose.
27. Coming back to the facts in the present case and considering that the petitioners have
not denied their signatures on the cheques in question and that even according to the
petitioners, agreement was made between the parties for cancellation of execution of deed
for sale of land, there is a presumption under Section 139 of the NI Act that there exists a
legally enforceable debt or liability. Of course, such presumption is rebuttable in nature and
the same could only be done by adducing evidence at trial, but at this stage as the minute
appreciation of evidence is not to be done complaint could not be quashed on this score.
Therefore, at this stage of trial, the respondent/complainant is entitled for the presumption as
provided under Section 139 of the NI Act.
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28. The Hon'ble Supreme Court in the case of Rajeshbhai Muljibhai Patel Vs. State of
Gujarat; (2020) 3 SCC 794, it was held as under:-
"The High Court, in our view, erred in quashing the criminal case in CC No. 367 of 2016 filed
by Appellant 3 Hasmukhbhai under Section 138 of the NI Act. As pointed out earlier,
Yogeshbhai has admitted the issuance of cheques. When once the issuance of cheque is
admitted/established, the presumption would arise under Section 139 of the NI Act in favour
of the holder of cheque that is the complainant Appellant 3. The nature of presumptions
under Section 139 of the NI Act and Section 118(a) of the Evidence Act are rebuttable.
Yogeshbhai has of course, raised the defence that there is no legally enforceable debt and he
issued the cheques to help Appellant -3 Hasmukhbhai for purchase of lands. The burden lies
upon the accused to rebut the presumption by adducing evidence. The High Court did not
keep in view that until the accused discharges his burden, the presumption under Section
139 of the NI Act will continue to remain. It is for Yogeshbhai to adduce evidence to rebut
the statutory presumption. When disputed questions of facts are involved which need to be
adjudicated after the parties adduce evidence, the complaint under Section 138 of the NI Act
ought not to have been quashed by the High Court by taking recourse to Section 482 CrPC.
Though, the Court has the power to quash the criminal complaint filed under Section 138 of
the NI Act on the legal issues like limitation, etc. criminal complaint filed under Section 138 of
the NI Act against Yogeshbhai ought not to have been quashed merely on the ground that
there are inter se disputes between Appellant -3 and Respondent-2. Without keeping in view
the statutory presumption raised under Section 139 of the NI Act, the High Court, in our
view, committed a serious error in quashing the criminal complaint in CC No. 367 of 2016
filed under Section 138 of the NI Act."
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29. In view of the aforesaid legal propositions as well as the factual matrix of the case, this
Court does not find any merit in this petition. Thus, the criminal petitions being Criminal
Petition No. 156 of 2018 and Criminal Petition No. 242 of 2018 are dismissed. However, the
learned trial Court is directed to proceed with both the complaint cases and dispose of the
same in accordance with law. Nothing stated above shall be construed as an expression of an
opinion on merit of the matters and the learned trial Court shall be free to come at its own
conclusions, having regard to the evidence adduced by the parties.
30. Both the criminal petitions accordingly, stand disposed of.
31. Stay order, if any, be vacated accordingly.
JUDGE
Comparing Assistant
