[Cites 12, Cited by 0]

Tripura High Court

Sri Arun Kumar Dey (Aged About 59 Years) vs Sri Biswajit Guha on 12 December, 2025

                      HIGH COURT OF TRIPURA
                            AGARTALA

                 CRIMINAL PETITION 53 OF 2024


1. SRI ARUN KUMAR DEY (aged about 59 years),
Son of late Biraj Mohan Dey, resident of Arundhuti Nagar,
Police Line, P.O. A.D. Nagar-799003, P.S. A.D. Nagar,
District-West Tripura.

2. SRI TARUN KUMAR SAHA (aged about 58 years),
Son of late Haran Chandra Saha, resident of Milann Chakra,
P.O.A.D. Nagar-799003, P.S. A. D. Nagar, District-West Tripura.

3. SMT. SARASWATI PAUL (aged about 55 years), wife of late
Bijoy Krishna Paul, resident of Champaknagar, P.O. Birendranagar-
799045, P.S. Jirania, District-West Tripura.

4. SMT. MINAKSHI PAUL (aged about 39 years), daughter of late
Bijoy Krishna Paul, resident of Champaknagar, P.O. Birendranagar-
799045, P.S. Jirania, District-West Tripura.

5. SRI MILTAN PAUL (aged about 34 years), son of late
Bijoy Krishna Paul, resident of Champaknagar, P.O. Birendranagar-
799045, P.S. Jirania, District-West Tripura.

                                                        ---Petitioners.
                                   Versus
1. SRI BISWAJIT GUHA,
S/o late Bimal Chandra Guha, resident of 128/4A,
Hazra Road, Kolkata, P.S. Bhavanipur,
Pin-700026, West Bengal.

2. THE STATE OF TRIPURA.
                                                       ---Respondents.

BEFORE HON'BLE MR. JUSTICE S. DATTA PURKAYASTHA

For the Petitioners : Mr. Abhijit Sengupta, Advocate.

For the Respondents            : Mr. Rajib Saha, Addl. P.P.
Date of Argument               : 20.09.2025
Date of delivery of Judgment
and Order                      : 12.12.2025

                                     YES    NO
Whether fit for reporting      :
                                      





                       JUDGMENT & ORDER

The petitioner Nos. 1 & 2 along with another Bijoy Krishna

Paul, the predecessor of petitioner Nos. 3, 4 & 5 filed a complaint under

Section 138 of N.I. Act against the present respondent No.1 alleging

dishonour of cheque amounting to Rs. 75,00,000/- (Rupees seventy five

lakhs) issued in favour of M/s Ramthakur Bricks Company. It is also

alleged that the said cheque was issued by said respondent No.1 on

behalf of 'VIDA Engineering Company Ltd.'

2. The complaint on being transferred to the Court of learned

Addl. Chief Judicial Magistrate, West Tripura, Agartala, the said Court

took cognizance of offence under Section 138 of N.I. Act against the

respondent No.1 vide order dated 15.06.2019 and issued summons to

him fixing the next date for appearance of the said accused-respondent

No.1 and also for his examination under Section 251 of the Code of

Criminal Procedure [for short, the Code].

3. Later on, the respondent No.1 appeared and he was released

on bail. He thereafter filed an application on 22.06.2022 praying for his

discharge from the case challenging the maintainability of the proceeding

on the ground that he was not a managing partner of said 'VIDA

Engineering Company Ltd.', rather, he was the sole proprietor of the

same and in said company there is no existence of any such partnership.

He also took the plea that in the year 2013 a cheque book containing

some signed cheques were lost from his office located at Belonia.

Therefore, the matter was duly informed to the bank authority with a

request to close the account. He also asserted that there was no relation

or no correspondence, no documents exchanged between the parties and

no purchase order was ever issued by him to the complainant or to their

Firm to procure any brick.

4. Learned trial Court after hearing the parties on the said

petition finally allowed the same on 03.12.2024 holding that without

impleading the juristic person i.e. 'VIDA Engineering Company Ltd.',

the respondent No.1 could not be prosecuted and therefore, he was

discharged.

5. The said order dated 03.12.2024, passed in related NI 51 of

2018, is challenged by the petitioners in this criminal petition, mainly on

two grounds-- Firstly, that after cognizance of offence was taken by the

learned trial Court and process was issued, the said Court had no

jurisdiction to discharge the accused without exhausting the procedure

contained in Chapter XX of the Code; and secondly, that there is no

requirement at law for impleading the Company as accused in the case.

6. Notice upon the respondent No.1 was served through paper

publication, but he did not appear.

7. Learned counsel, Mr. A. Sengupta argues that in view of the

decision of the Constitution Bench of Hon'ble Supreme Court in case of

Expeditious trial of cases under Section 138 of N.I. Act 1881, In-Re

reported in (2021) 16 SCC 116, a Magistrate has no authority to

discharge any accused or close down the case except without following

the procedure as laid down in Chapter XX of the Code.

Mr. Sengupta, learned counsel also relies on another

decision of Hon'ble Supreme Court in case of Dhanasingh Prabhu Vrs.

Chandrasekhar & Anr., 2025 INSC 831 to justify his submission that a

Firm or the Company is not required to be impleaded in a case under

Section 138 of NI Act, rather, it can be proceeded against the person who

is responsible for the conduct of the said Firm or Company.

8. Mr. Rajib Saha, learned Addl. P.P. also in the same tune

submits that Magistrate has no power to discharge the accused once he

has issued the process requiring appearance of the accused.

9. This Court has taken into consideration the submissions of

both sides. To determine the challenge regarding the absence of authority

of the Magistrate to discharge the accused in a case under Section 138 of

the NI Act, the provisions of Sections 200 to 204 of CrPC assume

relevance.

10. As per the provision of Section 200 CrPC, a Magistrate

taking cognizance of an offence on complaint shall examine upon oath

the complainant and the witnesses present, if any, however the

Magistrate is not required to examine the complainant and the witnesses

when the complaint is made in writing by a public servant acting or

purporting to act in the discharge of his official duties or a Court or if the

Magistrate makes over the case for inquiry or trial to another Magistrate

under Section 192 of the Code.

11. Section 201 deals with the procedure where the complaint is

made to a Magistrate who is not competent to take congnizance of the

offence.

12. Section 202 of CrPC deals with the postponement of issue

of process. As per the said provision, any Magistrate, on receipt of a

complaint of an offence of which he is authorized to take congnizance or

which has been made over to him under Section 192, may, if he thinks

fit, and shall, in a case where the accused is residing at a place beyond

the area in which he exercises his jurisdiction, postpone the issue of

process against the accused, and either inquire into the case by himself or

direct an investigation to be made by a police officer or by such other

person as he thinks fit, for the purpose of deciding whether or not there is

sufficient ground for proceeding against the accused. In said inquiry, the

Magistrate may take evidence of witnesses on oath.

13. Section 203 prescribes that if, after considering the

statements on oath (if any), of the complainant and of the witnesses and

the result of said inquiry or investigation (if any), under Section 202, the

Magistrate is of the opinion that there is no sufficient ground for

proceeding, he shall dismiss the complaint, and in every such case he

shall briefly record his reasons for doing so. If the Magistrate does not

dismiss the complaint under Section 203, process is to be issued by the

said Court under Section 204 of the Code.

14. Earlier, in a case of Meters & Instruments (P) Ltd. & Anr.

Vrs. Kanchan Mehta, (2018) 1 SCC 560, it was held by the Hon'ble

Supreme Court that the principle of Section 258 of the Code will apply

and the Court can close the proceedings and discharge the accused on

satisfaction that the cheque amount with assessed costs and interest is

paid and if there is no reason to proceed with the punitive aspect. The

relevant paragraph Nos. 18.1, 18.2 and 18.3 of the said decision are

extracted hereunder:

"18.1. Offence under Section 138 of the Act is primarily a civil wrong. Burden of proof is on the accused in view of presumption under Section 139 but the standard of such proof is "preponderance of probabilities". The same has to be normally tried summarily as per provisions of summary trial under CrPC but with such variation as may be appropriate to proceedings under Chapter XVII of the Act. Thus read, principle of Section 258 CrPC will apply and the court can close the proceedings and discharge the accused on satisfaction that the cheque amount with assessed costs and interest is paid and if there is no reason to proceed with the punitive aspect.

18.2. The object of the provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has to be encouraged but is not debarred at later stage subject to appropriate compensation as may be found acceptable to the parties or the court.

18.3. Though compounding requires consent of both parties, even in absence of such consent, the court, in the interests of justice, on being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused."

15. Prior to that a three-Judge bench of the Hon'ble Supreme

Court in a case of Adalat Prasad Vrs. Rooplal Jindal & Ors., (2004) 7

SCC 338 held that after taking cognizance of the complaint and

examining the complainant and the witnesses, if the Magistrate is

satisfied that there is sufficient ground to proceed with the complaint, he

can issue process by way of summons under Section 204 of the Code and

thereafter there is no scope for the accused to approach the Court by

making an application for dismissal of the complaint under Section 203

of the Code on reconsideration of the materials available on record as

already the phase of taking decision under Section 203 by the Magistrate

is already over. In said Adalat Prasad (supra), another previous decision

of the Hon'ble Supreme Court in the case of K.M. Mathew Vrs. State of

Kerala, (1992) 1 SCC 217 was held not to denote a good law as in said

case it was held that Magistrate had the power to drop the proceeding or

rescind the process even it was issued under Section 204 of the Code on

reconsideration of the complaint on the ground that there was no offence

for which accused could be tried. Even, another three-Judge bench of

Hon'ble Supreme Court thereafter in a case of Subramanium

Sethuraman Vrs. State of Maharashtra & Anr., (2004) 13 SCC 324

clearly held that once a plea of the accused is recorded in a summons

case, it is not open to the accused person to seek a discharge. The case

involving a summons case is covered by Chapter XX of the Code which

does not contemplate a stage of discharge like Section 239 which

provides for a discharge in a warrant case and therefore, once the plea of

the accused is recorded under Section 252 of the Code, the procedure

contemplated under Chapter XX has to be followed which is to take the

trial to its logical conclusion.

16. The correctness of the decisions of the Hon'ble Supreme

Court in case of Meters & Instruments (supra), Adalat Prasad (supra)

and Subramanium Sethuraman (supra) were examined by the

Constitution bench in case of Expeditious trial of cases under Section

138 of NI Act, In-Re as mentioned earlier.

17. The Constitution bench finally held that the findings in

Meters & Instruments (supra) did not lay down the correct law and the

judgment in Adalat Prasad and Subramanium Sethuraman (supra) had

interpreted the law correctly. The relevant paragraph Nos. 24.1 to 24.8 of

the said decision of are reproduced here-in-below:

"24.1. The High Courts are requested to issue practice directions to the Magistrates to record reasons before converting trial of complaints under Section 138 of the Act from summary trial to summons trial.

24.2. Inquiry shall be conducted on receipt of complaints under Section 138 of the Act to arrive at sufficient grounds to proceed against the accused, when such accused resides beyond the territorial jurisdiction of the court.

24.3. For the conduct of inquiry under Section 202 of the Code, evidence of witnesses on behalf of the complainant shall be permitted to be taken on affidavit. In suitable cases, the Magistrate can restrict the inquiry to examination of documents without insisting for examination of witnesses.

24.4. We recommend that suitable amendments be made to the Act for provision of one trial against a person for multiple offences under Section 138 of the Act committed within a period of 12 months, notwithstanding the restriction in Section 219 of the Code.

24.5. The High Courts are requested to issue practice directions to the trial courts to treat service of summons in one complaint under Section 138 forming part of a transaction, as deemed service in respect of all the complaints filed before the same court relating to dishonour of cheques issued as part of the said transaction.

24.6. The judgments of this Court in Adalat Prasad [Adalat Prasad v. Rooplal Jindal, (2004) 7 SCC 338 : 2004 SCC (Cri) 1927] and Subramanium Sethuraman [Subramanium Sethuraman v. State of Maharashtra, (2004) 13 SCC 324 : 2005 SCC (Cri) 242] have interpreted the law correctly and we reiterate that there is no inherent power of trial courts to review or recall the issue of summons. This does not affect the power of the trial court under Section 322 of the Code to revisit the order of issue of process in case it is brought to the court's notice that it lacks jurisdiction to try the complaint.

24.7. Section 258 of the Code is not applicable to complaints under Section 138 of the Act and findings to the contrary in Meters & Instruments [Meters & Instruments (P) Ltd. v. Kanchan Mehta, (2018) 1 SCC 560 : (2018) 1 SCC (Civ) 405 :

(2018) 1 SCC (Cri) 477] do not lay down correct law. To conclusively deal with this aspect, amendment to the Act empowering the trial courts to reconsider/recall summons in

respect of complaints under Section 138 shall be considered by the Committee constituted by an order of this Court dated 10-3-

2021 [Expeditious Trial of Cases Under Section 138 of NI Act 1881, In re, 2021 SCC OnLine SC 354] .

24.8. All other points, which have been raised by the Amici Curiae in their preliminary report and written submissions and not considered herein, shall be the subject-matter of deliberation by the aforementioned Committee. Any other issue relating to expeditious disposal of complaints under Section 138 of the Act shall also be considered by the Committee.

18. In view of the above position of law, it is held that learned

Magistrate committed error in discharging the respondent No.1 on his

application filed challenging maintainability of the proceeding. Once the

Magistrate has issued summons to him asking his appearance, said Court

was to follow the procedure laid down in Chapter XX of the Code and to

take the proceeding to its logical end. Therefore, the impugned order is

liable to be set aside.

19. So far the second point of challenge of the petitioners

regarding the maintainability of the proceeding is concerned, the same is

kept open to be decided by the learned trial Court at the time of final

hearing of this case, since it is already held by this Court that the

impugned order was passed by the said Court without having the