Sidharu Muchahary v. Sambhu Charan Barman

JUDGMENT AND ORDER (CAV) Heard Mr. G. Baishya, learned counsel appearing for the petitioner. Also heard Mr. M.U. Mahmud, learned counsel representing the respondent.

¶2This is an application under Section 482 of the CrPC praying for quashing the proceedings of NI Complaint Case No.18/2021 pending in the court of learned Addl. Chief Judicial Magistrate, Bongaigaon.

¶3The petitioner issued a cheque of ₹31 lakhs to the respondent. The cheque was presented to the Bank for encashment. On 05.01.2021, the Bank returned the cheque on the ground of "other reasons". Thereafter, the respondent issued a demand notice to the present petitioner, as required by the proviso (b) of Section 138 of the NI Act. The notice did not return back. The respondent presumed under Section 27 of the General Clauses Act that the notice was served upon the petitioner. Thereafter, the complaint case was filed against the petitioner.

¶4By filing the present petition, the petitioner claim that he is a permanent resident of his present address and no demand notice was served upon him. Therefore, the entire proceeding is vitiated because of non-compliance of statutory provisions.

¶5I have considered the submissions made by the learned counsels of both sides.

¶6In State of Haryana v. Bhajan Lal, AIR 1992 SC 604 the Supreme Court has laid down the guidelines as to when the power under Section 482 of the CrPC can be exercised by the High Court. Paragraph 102 of the Page No.# 3/5 judgment reads 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 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 Page No.# 4/5 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."

¶7The power to quash proceeding under Section 482 of the CrPC is exercised when there are no materials to proceed against the petitioners even if the allegations in the complaint are prima facie accepted as true.

¶8In the case in hand, the issue raised by the petitioner is a factual issue and that can be ascertained only by adducing evidence. The respondent shall be liable to prove before the trial court that the demand notice was served upon the petitioner. Similarly, the petitioner is at liberty to prove before the trial court that no demand notice was served upon him.

¶9I find that this is not a fit case for exercising power under Section 482 of the CrPC. Therefore, I hereby hold that the present petition is devoid of any merit.

¶10The present petition is dismissed. The earlier interim order stands vacated. Page No.# 5/5 The criminal petition is disposed of.

JUDGE Comparing Assistant

PageoNo.#o1/5 GAHC010152692022 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oCrl.Pet./766/2022ooooooooo SIDHARUoMUCHAHARYo S/O-oLATEoTHOPSAoMUCHAHARY,oR/O-oVILLAGEoNO.o1,oLADANGURI,oP.O.o LADANGURI,oP.S.oBIJNI,oDIST.oCHIRANG,oBTADo(ASSAM),oPIN-o783390. VERSUSo SAMBHUoCHARANoBARMANo S/O-oLATEoSUREANDRAoCHANDRAoBARMAN,oR/O-oDHALIGOANoMAINo GATE,oP.O.oANDoP.S.oDHALIGOAN,oDIST.oCHIRANG,oBTAD,oASSAM,oPIN-o 783390. AdvocateoforotheoPetitionerooooo:oMRoGoBAISHYAo AdvocateoforotheoRespondento:oMR.oMoUoMAHMUDo(r-1)oo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo ::kPRESENTk:: HON'BLEkMR.kJUSTICEkPARTHIVJYOTIkSAIKIA o For the Petitioner : Mr. G. Baishya, Advocate. oooooooooo For the Respondent : Mr. M.U. Mahmud, oooooooooooooooooooooooooooooooooooooooooooooooooooooooooo Advocate. oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo oooooooooo Date of Hearing : 05.01.2024. Date of Judgment : 01.03.2024. Page No.# 2/5