Page No.# 1/15 vs Gaurav Bora
2025 Latest Caselaw 770 Gua

Gauhati High Court

Page No.# 1/15 vs Gaurav Bora on 3 June, 2025

                                                                         Page No.# 1/15

GAHC010284262023




                                                                    2025:GAU-AS:7167

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

                               Case No. : Crl.Pet./1343/2023

            M/S MAA BAGALA AMUSEMENT HUB AND ANR
            A PARTNERSHIP FIRM REP. BY ITS MANAGING PARTNER- SHRI SANJIB
            DEKA, HAVING ITS REGISTERED OFFICE AT MAA BAGALA AMUSEMENT
            HUB (FROZEN PLANET), N/H 37, LOKHRA, LALUNGGAON, GUWAHATI-
            781035, ASSAM

            2: SHRI SANJIB DEKA
             S/O LATE JADAV CH. DEKA
            HAVING ITS RESIDENT ADDRESS AT HOUSE NO. 28
             MA ROAD
            MADHABDEVPUR
             REHABARI

            P.S. PALTAN BAZAAR
             GUWAHATI-781008
             DIST. KAMRUP (M)
            ASSA

            VERSUS

            GAURAV BORA
            S/O SHRI UPENDRA NATH BORA
            R/O BELTOLA, GUWAHATI-781028, P.O. BELTOLA, P.S. HATIGAON, DIST.
            KAMRUP (M), ASSAM



Advocate for the Petitioner   : MR. S P ROY, MS. V RAI,MS. P AGARWALA,JYOTISH DAS

Advocate for the Respondent : MS K SARMA (R-1), MR M SAHEWALLA (R-1),MS N RAHMAN

(R-1),MR G N SAHEWALLA (R-1),MR H K SARMA (R-1) Page No.# 2/15

:::BEFORE:::

HON'BLE MRS. JUSTICE MITALI THAKURIA

Date of hearing : 29.01.2025 Date of Judgment & Order : 03.06.2025

JUDGMENT & ORDER (CAV)

Heard Mr. S. P. Roy, learned counsel for the petitoners. Also heard Mr. G. N. Sahewalla, learned Senior Counsel assisted by Ms. N. Rahman, learned counsel for the respondent.

2. This is an application under Section 482 of Cr.P.C, for setting aside and quashing the N.I Case No. 1262/2023 under Section 138 of N.I. Act pending in the Court of learned JMFC, Kamrup (M), Guwahati, C.R. case No. 6708/2022 under Section 138 of N.I. Act pending in the Court of learned JMFC, Kamrup (M), Guwahati, N.I Case No. 4247/2023 under Section 138 of N.I. Act pending in the Court of learned JMFC, Kamrup (M), Guwahati, C.R. Case No. 4362/2022 under Section 138 of N.I. Act pending in the Court of learned JMFC, Kamrup (M), Guwahati and C.R. Case No. 7614/2022 under Section 138 of N.I. Act Page No.# 3/15

pending in the Court of learned JMFC, Kamrup (M), Guwahati.

3. The gist of the petitioner's case is that, the petitioner No. 1 (M/s Maa Bagala Amusement Hub), represented by its Managing Partner Shri Sanjib Deka (petitioner No. 2), has executed a Lease Deed dated 30.10.2015 with the respondent for taking on lease a vacant plot of land and the lease rent was fixed at Rs. 1,60,000/- (Rupees One lakh sixty thousand) per month, subject to a 15% increase after every 3(three) years and the petitioners have always made timely payments of lease rent for the said Lease Deed into the respondent's bank account via account payee cheques issued in the name of M/s Maa Bagala Amusement Hub. However, some dispute arose between the parties regarding the non-supply of earlier G.M.C. tax pay receipts paid by the respondent to G.M.C which caused hindrance to the petitioners in obtaining trade license from G.M.C to run their amusement hub, namely, "Frozen Planet". Ultimately, the said hub had to be closed down by the petitioners and a dispute arose between the parties regarding GST payment, which ultimately created a deadlock between the petitioners and the respondent.

4. To the utter shock and surprise, the petitioner No. 2, received a Court summon regarding 5(five) numbers of N.I complaint case under Section 138 of N.I. Act filed by the respondent against the petitioners before the Court of the learned JMFC pertaining to post dated cheques issued in the name of M/s OM Constructions, a proprietorship firm own by the petitioner No. 2.

5. It is further stated that the petitioner never issued any post dated cheques in the name of M/s OM Constructions for paying monthly lease rent to the respondent under the Lease Deed and there is no mention of any post dated cheques issued by M/s OM Constructions in the Lease Deed dated 30.10.2015, Page No.# 4/15

and the petitioners had made all rental payments through account payee cheques issued in the name of M/s Maa Bagala Amusement Hub and as such, the respondent has made up a concocted story to trap the petitioner No. 2 in a criminal case and thus, 5(five) complaint cases filed against the petitioners which are nothing but an abuse of process of law and as such, these cases should be set aside and quashed.

6. It is further stated that the petitioner No. 1 also deposited an amount of Rs. 4,80,000/- (Rupees Four lakhs Eighty thousand only) to the respondent as security money to be refunded as soon as lessee vacates the land on expiry of the said Lease Deed. The respondent also insisted the petitioners for paying GST which condition was not incorporated in the Lease Deed dated 30.10.2015 as "Goods and Services Tax" was only introduced in the year 2017 and the respondent failed to get himself registered under GST which is a serious violation on the part of the respondent and after almost 5 (five) years, the respondent got registration under GST but, even then till date, the respondent failed to raise even a single bill under the GST norms. Further, there was no amendment of Lease Deed in spite of the petitioner No. 2's repeated request to the respondent for making necessary amendment for payment of GST.

7. It is further stated that the contents of all 5(five) complaints lodged by the respondent are similar in nature wherein, it was alleged that at the time of execution of Lease Deed dated 30.10.2015, the petitioner No. 2/accused had voluntarily issued several numbers of post-dated cheques specifying the dates and amounts and these cheques were allegedly issued from M/s OM Construction, of which the petitioner No. 2 is the proprietor, for the purpose of securing payment of monthly rent. It is further alleged that, on good faith, the respondent accepted those post-dated cheques from the petitioner No. Page No.# 5/15

2/accused, which were to be drawn on IDBI Bank, Satyen Niwas, Pan Bazar Branch, and also on Oriental Bank of Commerce.

8. It is further alleged that the accused/petitioner No. 2 was paying monthly rent regularly up to October, 2018. However, from November, 2018, the accused/petitioner No. 1 had been irregular in paying the monthly rent and despite several request from the complainant/respondent, the accused/petitioner No. 2 failed to pay the amount and subsequently, he issued some post-dated cheques which were dishonored for insufficient balance in the account. However, the accused/petitioner No. 2 then request the complainant/respondent over the phone not to deposit the post-dated cheques on the ground that there was no sufficient balance in his account and after clarifying the arrear rent through different cheques, he took back all the post- dated cheques from the complainant/respondent. However, the accused/petitioner No. 2 paid the monthly rent arrear up to May 2021, but subsequently stopped paying monthly rent. Thereafter, the complainant/respondent approached the petitioner on several occasions to clear the dues, including tax liabilities, but the petitioner Nos. 1 and 2 failed to deposit the monthly rent along with the tax.

9. He further stated that all the averments made in the complaint cases lodged against the petitioners are false and the petitioners never issued any post-dated cheques in the name of M/s OM Constructions for paying monthly lease rent to the respondent under the Lease Deed dated 30.10.2015. Moreover, there is no mention of any post-dated cheques issued in the name of M/s OM Constructions in the Lease Deed. The petitioners had made all rental payments through account payee cheques in the name of M/s Maa Bagala Amusement Hub.

Page No.# 6/15

10. It is further stated that prior to signing the Lease Deed dated 30.10.2015, the petitioner No. 2 and the respondent were in talks to execute the Lease Deed in the name of the M/s OM Constructions, a proprietorship firm owned by the petitioner No. 2. As a result, the petitioner No. 2 had issued some post-dated cheques as a security cheques for the proposed Lease Deed between M/s OM Constructions and the respondent, which were never intended to be enchased. However, all lease rental amounts were subsequently paid via account payee cheques issued in the name of M/s Maa Bagala Amusement Hub.

11. Mr. S. P. Roy, learned counsel for the petitioners, further submitted in this regard that from the statement made in the complaint cases, it is seen that no offence under Section 138 of N.I. Act is attracted against the petitioners as there is no legally enforceable debt or other liabilities against the petitioner No. 1 (M/s Maa Bagala Amusement Hub), as none of the cheques describe in paragraph 5 of the above mentioned complaint cases were issued by the petitioner No. 1. Furthermore, it is submitted that the said cheques were returned not due to account being insufficient to honour the cheques or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, but only due to other reasons as stated in paragraph 6 of the complaint. Hence, no offence is committed by the petitioners under Section 138 of N.I. Act.

12. It is evident from the statement made in the paragraph 6 of the complaint cases that the cheques were dishonoured only due to "Other Reasons". It is clear that all the complaint cases were filed by the respondent only to harass the petitioner No. 2, as there was a dispute between the petitioner No. 2 and the respondent for non-issuance of assessment order by Guwahati Municipal Corporation (G.M.C) and non-payment of GST amount as stated in paragraph 7 Page No.# 7/15

of the complaint cases.

13. Mr. Roy, learned counsel further submitted that the respondent had filed a title suit being T.S No. 545/2022 against the petitioners, claiming a decree for eviction of the petitioners from the plot of land measuring about 2 Bighas, 3 Kathas, 16 Lechas covered by Dag Nos. 1432 & 1433 (new) and KP Patta Nos. 447 and 1634 of village Betkuchi, Mouza, Beltola under Revenue Circle, Dispur and also prayed for a decree for recovery of monthly rent for the month of June, 2021 till August, 2022 @ Rs. 2,11,600/- (Rupees two lakhs eleven thousand six hundred) per month, from the petitioners. The petitioners have also filed W.S. and the same is pending for disposal before the Court of learned Civil Judge No. 2, Kamrup (M), Guwahati, Assam.

14. In view of the above, this is a fit case wherein, all the criminal complaint cases registered under Section 138 of N.I. Act are liable to be set aside and quashed by invoking the power under Section 482 of Cr.P.C. In the present facts and circumstances, if these criminal proceedings are allowed to be survive, it would lead to an abuse of process of the Court and cause miscarriage of justice. Hence, warrants the interference of this Court by quashing all 5(five) numbers of criminal cases filed against the present petitioners.

15. Mr. Roy, learned counsel, further submitted that the respondent had already filed a civil suit on the same subject matter, which is pending for disposal. Wherein, the respondent has prayed not only for a decree of vacating the petitioners from the said plot of land but also for recovery of the arrear lease rental amount. Accordingly, he submitted that this is a civil case in nature, wherein, criminal colour has been given by the respondent. In that context, he further relied on the decision of the Division Bench of Hon'ble Supreme Court in Page No.# 8/15

R. Nagender Yadav vs. The State of Telangana & Anr ., report in (2023) 2 SCC 195 and emphasized on paragraph 17 of the said judgment, which reads as follows:

"17. While exercising its jurisdiction under Section 482 of Cr.P.C., the High Court has to be conscious that this power is to be exercised sparingly and only for the purpose of prevention of abuse of the process of the court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not, depends upon the nature of the act alleged thereunder. Whether the essential ingredients of a criminal offence are present or not, has to be judged by High Court. A complaint disclosing civil transaction may also have a criminal texture. But the High Court must see whether the dispute which is in substance of a civil nature is given a cloak of a criminal offence. In such a situation, if civil remedy is available and is in fact adopted, as has happened in case on hand, the High Court should have quashed the criminal proceeding to prevent abuse of process of Court."

16. Furthermore, he also cited the decision of the Hon'ble Apex Court passed in the case of Rajiv Thapar Kapoor & Anr. Vs. Madan Lal Kapoor , reported vide (2013) 3 SCC 330 and emphasized on paragraph 23 of the said judgement, which reads as follows:

"23. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:-

(i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?

(ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.

(iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?

(iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?

Page No.# 9/15

If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused.

17. Accordingly, Mr. Roy, learned counsel for the petitioner, submitted that this is a fit case wherein, all 5(five) numbers of complaint cases registered under Section 138 of N.I. Act can be set aside and quashed by invoking the power under Section 482 of Cr.P.C.

18. Mr. G. N. Sahewalla, learned Senior Advocate, submitted in this regard that the present petition for quashing is not at all maintainable wherein, the prayer for quashing of 5(five) complaint cases has been made under 1(one) petition. As the cause of action of all the complaint cases are different and hence, under 1(one) petition, the petitioners cannot pray for quashing of 5(five) complaint cases which is not maintainable in the present form. He further submitted that all the complaint cases were filed observing all necessary formalities as required under the law and notices were also issued to the petitioners before filing/instituting all the complaint cases.

19. He further submitted that the presumption under Section 139 of N.I. Act can only be taken at the stage of trial and rebuttal of presumption cannot be considered at the time of taking cognizance if there is sufficient prima facie materials to take cognizance for an offence under Section 138 of N.I. Act. In that context, he also relied on the decision of the Hon'ble Supreme Court reported vide (2020) 12 SCC 500 (Shiv Kumar Alias Jawahar Saraf vs. Ramavtar Agarwal) and emphasized on paragraph 4 of the said judgment, which reads as follows:

Page No.# 10/15

"4. Mr. Mahesh Jethmalani, learned senior counsel appearing for the appellant contends that Judicial Magistrate First Class could have examined the materials filed along with the complaint and from the materials which were brought on the record it was clear that there was no legally enforceable debt, hence there was no case for taking cognizance of the offence and registering the criminal complaint. He referred to the agreement dated 21.10.2014 Annexure P-2 between the parties. The learned counsel for the appellant has also referred to the judgment of the High Court and specifically paragraphs 23 and 32. The High Court in paragraphs 23 and 32, which has been relied and referred by counsel for the appellant, observed:

"23. The presumption available under Section 139 of NI Act has to be rebutted and that rebuttal can only be done after adducing evidence. This, by itself clearly reflects that the rebuttal presumption cannot be looked into at the stage of the Court taking cognizance of the offence and registering the case: all that Court would have to see is whether there is a prima facie case made out meeting the conditions precedent as envisaged under Section 138 of NI Act, which in the instant case, in the opinion of this Court, the Respondent has in fact been able to establish and fulfill all such ingredients.

32. As has been stated in the preceding paragraphs since there is a presumption to be drawn of there being a debt or liability in part or in whole of the drawer to the holder of the instrument, the Court below cannot be said to have faulted upon in taking cognizance and in registering the offence. Since it is a rebuttal presumption and all the contentions and averments made by the counsel for the Petitioner being his defence, it would be open for him to raise all these grounds at the stage of leading evidence including the defence of existence of legally enforceable debt or liability. However, there can be no doubt that at the time of filing of complaint there was always initial presumption which would be in favour of the complainant."

We are in full agreement with the opinion of the High Court expressed in the above noted paragraphs which has been referred by the learned counsel for the appellant. It is well settled that the rebuttal can be made with reference to the evidence of the prosecution as well as of defence.

20. He also cited the decision of the Hon'ble Supreme Court reported vide (2020) 3 SCC 794 (Rajeshbhai Muljibhai Patel vs. State of Gujarat and Anr.) (supra) and emphasized on paragraph 22 of the said judgement which is held as under:

"22. The High Court, in our view, erred in quashing the criminal case in C.C.No.367/2016 filed by appellant No.3-Hasmukhbhai under Section 138 of Page No.# 11/15

N.I. 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 N.I. Act in favour of the holder of cheque that is the complainant-appellant No.3. The nature of presumptions under Section139 of the N.I. Act and Section 118(a) of the Indian Evidence Act are rebuttable. Yogeshbhai has of course, raised the defence that there is no illegally enforceable debt and he issued the cheques to help appellant No.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 N.I. 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 N.I. Act ought not to have been quashed by the High Court by taking recourse to Section 482 Cr.P.C. Though, the Court has the power to quash the criminal complaint filed under Section 138 of the N.I. Act on the legal issues like limitation, etc. Criminal complaint filed under Section 138 of the N.I. Act against Yogeshbhai ought not have been quashed merely on the ground that there are inter se dispute between appellant No.3 and respondent No.2. Without keeping in view the statutory presumption raised under Section 139 of the N.I. Act, the High Court, in our view, committed a serious error in quashing the criminal complaint in C.C.No.367/2016 filed under Section 138 of N.I. Act.

21. He further submitted that if there is any default in payment in case of post-dated security cheques, Section 138 of N.I. Act will be attracted, to substantiate the plea, he also placed reliance on another judgment of the Hon'ble Supreme Court reported in (2023) 1 SCC 578 (Dashrathbhai Trikambhai Patel vs. Hitesh Mahendra Patel) and emphasized on paragraph 16, which reads as follows:

"16. Based on the above analysis of precedent, the following principles emerge:

16.1 Where the borrower agrees to repay the loan within a specified timeline and issues a cheque for security but defaults in repaying the loan within the timeline, the cheque matures for presentation. When the cheque is sought to be encashed by the debtor and is dishonoured, Section 138 of the Act will be attracted;

16.2 However, the cardinal rule when a cheque is issued for security is that between the date on which the cheque is drawn to the date on which the cheque matures, the loan could be repaid through any other mode. It is only Page No.# 12/15

where the loan is not repaid through any other mode within the due date that the cheque would mature for presentation; and 16.3 If the loan has been discharged before the due date or if there is an 'altered situation', then the cheque shall not be presented for encashment.

22. Relying the above mentioned judgments, it is submitted by Mr. Sahewalla, that there can be no reason for quashing of 5(five) criminal complaint cases by invoking the power under Section 138 of N.I. Act, wherein, the learned JMFC have taken cognizance in all the complaint cases.

23. Upon hearing the submissions made by the learned counsel for both sides, it is seen that the issue raised by the petitioners is that there is no legally enforceable debt lies against the petitioner Nos. 1 and 2, as all the post-dated cheques which were alleged to have been dishonoured were issued not in the name of the petitioner No. 1 but, those were issued in the name of M/s OM Constructions and the said company is no way related to the Lease Deed agreement executed between the petitioners and the respondent. It is also claim of the petitioners that the lease rental amount were paid by them through account payee cheque in the name of the petitioner No. 1 i.e., M/s Maa Bagala Amusement Hub.

24. Furthermore, the petitioners made another plea that the respondent had already instituted a title suit for paying for a decree by eviction of the petitioners from the land which was leased out in favour of the petitioner No. 1 and also prayed for recovery of arrear rent amount. Accordingly, it is submitted that 5(five) complaint cases which were instituted by the respondent is not maintainable, rather it would be an abuse of process of the Court and also cause miscarriage of justice, if the same are allowed to be proceeded with.

25. On the other hand, it is the case of the respondent that the cause of Page No.# 13/15

action of all 5(five) cases are different and hence, the petitioners cannot pray for quashing of all the complaint cases under single petition. Further, relying on some decisions of the Hon'ble Apex Court, it is also submitted by the learned Senior Advocate Mr. Sahewalla that, the question of rebuttal of presumption etc., will come only at the stage of trial and not at the stage of taking cognizance. Wherein, the learned Court's below had already taken cognizance finding a prima facie case against the petitioners. Furthermore, it is also the case of the petitioner that post-dated security cheques which were dishonoured by drawing bank can also attract the case under Section 138 of N.I. Act.

26. Upon considering the submissions made by the learned counsel for both sides, also on perusal of the pleadings of the parties as well as the annexures filed along with the petition, it is evident that there is no dispute regarding the issuance of post-dated security cheques by the petitioner No. 2. Further, it is also not disputed that there was a lease deed agreement between the parties and pursuant to said lease deed agreement, the petitioner No. 2 was paying monthly rental amount to the respondent. The dispute arose when the petitioners allegedly failed to pay the monthly rental amount for which, the respondent had to deposit the post-dated security cheques issued by the petitioner No. 2. However, it is seen that those post-dated security cheques were issued by the petitioner No. 2 in the name of M/s OM Constructions and not in the name of the petitioner No. 1 i.e., M/s Maa Bagala Amusement Hub. But, at the same time, it cannot be denied that M/s OM Construction is a proprietorship firm owned by the petitioner No. 2.

27. In case of Rajeshbhai Muljibhai Patel vs. State of Gujarat and Anr. (supra) as relied by the respondent, the Hon'ble Apex Court has expressed the view that the issue of non-existence of enforceable debt etc., lies on the Page No.# 14/15

accused to rebut the presumption by adducing evidence and the disputed question of facts involved in the case needs to be adjudicated after the parties adduced evidence. In the present case also, the petitioner claim that no legally enforceable debt lies on the OM Constructions, which is not a party to the lease agreement. But, on the other hand, it is an admitted fact that the post dated cheques were issued in favour of the respondent by the petitioner No. 2 in the name of M/s OM Constructions which is a proprietorship firm of the petitioner No. 2. So, these facts can be decided or adjudicated only at the time of trial. But, it is seen that the Court has taken cognizance, finding a prima facie case against the petitioners under Section 138 of N.I. Act.

28. That apart, it is also seen that the cause of action for all the criminal complaint cases are different and the cases were instituted after dishonour of post-dated security cheques by the petitioner No. 2. Hence, it also cannot be denied that under single petition, there cannot be prayer for quashing of all 5(five) criminal complaint cases, given that the cause of action for all 5(five) complaint cases are admittedly different.

29. The petitioner also took the plea that the respondent No. 2 had instituted a civil suit for eviction and for recovery of arrear rental amount which is already pending for disposal. But, only for the pendency of a suit, the complaint cases cannot be quashed when there is existence of criminal liability. However, in the event of decree for recovery of any arrear rent, may be adjusted with the compensation amount in case of conviction of criminal cases.

30. In view of entire decision made above, it is seen that the learned Court below had taken cognizance, finding a prima facie case against the petitioners. As discussed above, the petitioners will get ample opportunity to rebut the Page No.# 15/15

presumption under Section 139 of N.I. Act at the time of trial. However, this Court is of the opinion that there cannot be any reason to quash or set aside all the criminal complaint cases by invoking the power under Section 482 of Cr.P.C.

31. With the above observation, the present criminal petition stands dismissed and disposed of.

JUDGE

Comparing Assistant