Page No.# 1/5 vs M/S Kamakhya Udyog
2025 Latest Caselaw 4887 Gua

Gauhati High Court

Page No.# 1/5 vs M/S Kamakhya Udyog on 21 May, 2025

Author: Parthivjyoti Saikia

Bench: Parthivjyoti Saikia

                                                                         Page No.# 1/5

GAHC010128082014




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

                                 Case No. : Crl.Pet./913/2014

            M/S NYIMI ENTERPRISE and ANR.
            REP. BY ITS PROPRIETOR SMTI. CHAMPA TARING W/O DR. OLLIC TARING
            R/O NYOKUM, LAPANG ITANAGAR, PAPUM PARE, ARUNACHAL
            PRADESH.

            2: SMTI. CHAMPA TARING
            W/O DR. OLLIC TARING R/O NYOKUM
             LAPANG
             ITANAGAR
             PAPUM PARE
            ARUNACHAL PRADESH

            VERSUS

            M/S KAMAKHYA UDYOG
            REP. BY ITS PROPRIETOR SRI OM PRAKASH LOHIA R/O A.R. COMPLEX, S.J.
            ROAD, ATHGAON, GUWAHATI-01 UNDER BHARALUMUKH POLICE
            STATION, IN THE DIST. KAMRUP, ASSAM.



Advocate for the Petitioner   : MR.B KALITA, MS.C DAS,MR.D GOGOI,MR.A M BORA

Advocate for the Respondent : MR.M K SAH, ,MD.S ALI,
                                                                            Page No.# 2/5



                                     :: BEFORE ::
                 HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                     O R D E R

21.05.2025

Heard Mr. A.M. Bora, the learned senior counsel assisted by Mr. V.A. Choudhury, the learned counsel appearing for the petitioners. Mr. M.K. Sah, the learned counsel appearing for the sole respondent.

2. This is an application under Section 482 of the Code of Criminal Procedure (CrPC) praying for quashing the criminal proceedings of C.R. Case No.130/2014 pending in the court of learned Sub-Divisional Judicial Magistrate Sadar-II, Kamrup at Guwahati.

3. The petitioners used to purchase different materials from the respondent. They sometimes paid full considerations. Sometimes, they paid partly. Sometimes, they used to issue cheques to the respondent. On some occasions, the cheques issued by the present petitioners were dishonoured by the Bank for insufficient funds and for stop payment instructions of the petitioners. No case under the Negotiable Instrument Act was filed by the respondent. Ultimately, the respondent filed the instant Complaint Case against the petitioners alleging that they had conspired together to cheat the respondent and also committed criminal breach of trust.

4. The learned trial court took cognizance of the offences under Sections 120-B, 420, 406 and 506 of the Indian Penal Code read with Section 34 of the said Code.

5. Moving the criminal petition, Mr. Bora has relied upon a decision of the Supreme Court that was delivered in Neelu Chopra v. Bharti, (2009) 10 SCC 184. Paragraphs 9 and 10 of the said judgment are quoted as under:

Page No.# 3/5

"9. In order to lodge a proper complaint, mere mention of the sections and the language of those sections is not the be all and end all of the matter. What is required to be brought to the notice of the court is the particulars of the offence committed by each and every accused and the role played by each and every accused in committing of that offence.

10. When we see the complaint, the complaint is sadly vague. It does not show as to which accused has committed what offence and what is the exact role played by these appellants in the commission of offence. There could be said something against Rajesh, as the allegations are made against him more precisely but he is no more and has already expired. Under such circumstances, it would be an abuse of the process of law to allow the prosecution to continue against the aged parents of Rajesh, the present appellants herein, on the basis of a vague and general complaint which is silent about the precise acts of the appellants."

6. Mr. Bora has submitted that the respondent did not file any case under the provision of Negotiable Instrument Act and to cover up that faux pas, the complaint case was filed just to put pressure upon the petitioners for recovery of money.

7. Mr. Sah, on the other hand, submits that since the start of the business relationship between the respondent and the petitioners, the latter had the criminal intention to cause loss to the former.

8. I have considered the submissions made by the learned counsel of both sides.

9. The guidelines for consideration of a petition under Section 482 of the CrPC (now Section 528 of the BNSS, 2023 ) has been laid down by the Hon'ble Supreme Court in State of Haryana v. Bhajan Lal, AIR 1992 SC 604. Paragraphs 102 and 103 of the judgment read as under:

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not Page No.# 4/5

prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

10. Reverting to the case in hand, I have decided to agree with Mr. Bora. The complaint case was filed because the petitioners failed to pay money, for the goods purchased, to the respondent. They did not file any case under the Negotiable Instrument Act when the cheques given by the petitioners were bounced in the Bank. This Court has reason to hold that there are no elements for a prima facie criminal case against the petitioners. The respondent has the liberty to approach the civil court for seeking relief. Allowing this criminal proceeding to continue before the trial court would be nothing but an abuse of the process of the court.

11. This is a fit case for exercising the power under Section 482 of the CrPC. Accordingly, the criminal proceedings of C.R. Case No.130/2014 pending in the court of learned Sub-Divisional Judicial Magistrate Sadar-II, Kamrup at Guwahati, are set Page No.# 5/5

aside.

The criminal petition is disposed of.

JUDGE

Comparing Assistant