Gauhati High Court
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Page No.# 1/3
GAHC010150602025
2025:GAU-AS:11462
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : AB/1598/2025
ABDUL SALAM SHAH
S/O- LATE MOMIR UDDIN SHAH, VILL- BORO BAGHJHAPA, PS SUKCHAR,
DIST- SOUTH SALAMARA MANKACHAR, ASSAM
VERSUS
THE STATE OF ASSAM
REP BY THE PP, ASSAM
Advocate for the Petitioner : MR. ASHADUZ ZAMAN AHMED, MR. S S A RAHMAN,MR. M
HUSSAIN
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MRS. JUSTICE SHAMIMA JAHAN
ORDER
27.08.2025
Heard Mr. S.S.A. Rahman, learned counsel for the petitioner and Mr. D. P.
Goswami, learned Addl. P.P., Assam for the State.
By this application filed under Section 482 of the BNSS, 2023 the
petitioner, viz., Abdul Salam Shah has prayed for pre-arrest bail in connection
with Sukchar P.S. Case No.41/2025 registered under Sections
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61(2)/318(4)/316(2) of the BNS.
The F.I.R. dated 21.06.2025 lodged by one Sofiqul Islam reveals that the
petitioner had gone to his house and had told him to purchase roof top solar
plates and on 23.06.2024 the informant had paid him Rs.1,61,000/- and the
petitioner promised that he would give 32 numbers of solar plates within one
week but the informant states that after taking the said amount of money the
accused person i.e. the petitioner neither gave him the solar plates not
refunded the money. On the said allegations the police registered the case
under the aforesaid sections of law.
Mr. S. S. A. Rahman, learned counsel for the petitioner submits that the
instant case purely reveals a civil matter and no cheating as such is present in
the instant F.I.R. The learned counsel has placed reliance on a judgment
rendered by the Hon'ble Apex Court in Delhi Race Club (1940) Ltd. Vs.
State of Uttar Pradesh [Criminal Appeal No.3114/2024 decided on
23.08.2024] wherein the Apex Court has observed that when some particular
amount is due or payable to any party, a civil suit is a proper remedy instead of
filing a criminal case.
Mr. Goswami, learned Addl. P.P., on the other hand, submits that the
witnesses have stated that money was taken by the petitioner from the
informant for sale of solar power plates and have further promised to give him
the rest of the solar power plates but the petitioner neither gave solar plates
nor refunded the money.
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I have heard the learned counsel for the parties and have gone through
the records.
It is settled position of law that to constitute an offence under cheating a
prior intention is required. In the instant case, it is seen in the F.I.R. that the
petitioner had sold the solar power plates to the informant with the promise
that he would give 32 numbers of the same within one week but then it was not
given to the informant. It is also stated in the F.I.R. that the informant had
waited to get back his money and as such he lodged the F.I.R. little late.
The petitioner was granted interim pre-arrest bail vide order dated
15.07.2025 and in compliance of the directions contained therein he had gone
and appeared before the Investigating Officer, who had recorded his statement.
In view of the above, the interim order granting pre-arrest bail is hereby made
absolute subject to the condition that the petitioner shall abide by the
conditions incorporated in the order dated 15.07.2025.
Anticipatory Bail Application stands disposed of.
JUDGE
Comparing Assistant
