Gauhati High Court
Son Kalita vs The State Of Assam And Anr on 15 February, 2024
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GAHC010030552024
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./171/2024
SON KALITA
S/O LATE DHIREN KALITA
RESIDENT OF VILLAGE BHAGABATIPARA, PS PALASHBARI, DIST
KAMRUP ASSAM
VERSUS
THE STATE OF ASSAM AND ANR
REPRESENTED BY PP ASSAM
2:SANGITA LUNIA
W/O DULIP LUNIA
RESIDENT OF BRP ROAD BHARALUMUKH
PS BHARALUMUKH DIST KAMRUP M ASSAM 78100
Advocate for the Petitioner : MR. A ALI
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
Date : 15.02.2024
Mr. A. Ali, learned counsel for the petitioner Sri Son Kalita.
2. The petitioner has filed this application under Section 482 read with
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Section 401 of the Code of Criminal Procedure, 1973 and under Article 227 of
the Constitution of India praying suspending or quashing of the impugned order
dated 30.05.2023 and all subsequent orders passed by the learned Sub Division
Judicial Magistrate (S) No. 2, Kamrup(M) at Guwahati and the entire proceeding
in connection with CR Case No. 7410c/2022 arising out of the impugned
Demand Notice dated 12.10.2022 with regard to alleged dishonor of the cheque
No. 095387 dated 18.09.2022.
3. It is submitted on behalf of the petitioner that the cheque amount is
mentioned in the Memorandum of Understanding marked as Annexure-A
executed between the petitioner and the informant/respondent No. 2 herein. A
close scrutiny of the memorandum and complaint petition clearly reflects that
the cheque amount is not similar. The cheque amount mentioned in the
Memorandum of Understanding is Rs.1,00,000/- (Rupees One Lac) whereas the
amount mentioned in the complaint petition is Rs.82,960/-(Rupees Eighty Two
Thousand Nine Hundred Sixty).
4. The petitioner has relied on the decision of Hon'ble the Supreme Court in
Dr. Dashrathbhai Trikambhai Patel Vs. Hitesh Mahendrabhai Patel & Anr.
reported in 2022 LiveLaw (SC) 830 wherein it has been observed that:
"16. The judgments of this Court on post-dated cheques when read
with the purpose of Section 138 indicate that an offence under the
provision arises if the cheque represents a legally enforceable debt
on the date of maturity. Te offence under Section 138 is tipped by
the dishonor of the cheque when it is sought to be encashed. Though
a post-dated might be drawn to represent a legally enforceable debt
at the time of its drawing, for the offence to be attracted, the cheque
must represent a legally enforceable debt at the time of encashment.
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If there has been a mental change in the circumstance such that the
sum in the cheque does not represent a legally enforceable debt at
the time of maturity or encashment, then the offence under Section
138 is not made out."
5. It is submitted a slew of cases have been initiated against the petitioner
and a Coordinate Bench of this Court has stayed the proceeding against the
petitioner in Criminal Petition No. 712/2023 and 713/2023 vide orders dated
17.07.2023.
6. I have considered the submissions of the petitioner. I have also scrutinized
the Memorandum of Understanding and the complaint petition. In the light of
the decision of Hon'ble the Supreme Court in Dr. Dashrathbhai Trikambhai Patel
Vs. Hitesh Mahendrabhai Patel's case(supra), the order dated 30.05.2023, in
taking cognizance against the petitioner in CR Case No. 7410/2022 is stayed
until the next date.
7. Heard Mr. B.B. Gogoi, learned Additional Public Prosecutor for the
respondent No. 1. The learned Additional Public Prosecutor has accepted notice
on behalf of the respondent No. 1, so, no formal notice is required to be issued.
However, sufficient copies of the petition be furnished during the course of the
day.
8. Issue notice to respondent No. 2 through registered post with A/D,
returnable on 04.03.2024.
9. Call for the scanned copies of the LCR.
List the matter on 04.03.2024.
JUDGE
Comparing Assistant
