Page No.# 1/6 GAHC010004702014 2025:GAU-AS:14503 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./18/2014 RAJ KUMAR AGARWAL S/O LATE MADAN LAL AGARWAL, C/O TIRUPATI CYCLE AGENCY, S.K. MARKET, TIP TOP GALI, LAKHTOKIA, GUWAHATI-1 VERSUS BISWANATH AGARWAL and 2 ORS. PROPRIETOR OF M/S KABITA CYCLE STORE, BHUTAN ROAD, RANGIA, DIST. KAMRUP, ASSAM. Advocate for the Petitioner : MR.B DEKA, MRR K MOUR,MR.P DAS,MR.D K KOTHARI,MR.R K GUPTA Advocate for the Respondent : MR Z MUKIT, R1,R2, PP, ASSAM,,, BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR ORDER Date : 28-10-2025 Heard Mr. G. Kothari, learned counsel appearing for the Appellant. Also heard Ms. A. Begum, learned Addl. P.P. Assam appearing for the State/ respondent No. 3. None has entered appearance for respondent No. 1 & 2. Page No.# 2/6 2. The present appeal has been instituted assailing the judgment dated 03-09-2013 passed by the learned Sub-Divisional Judicial Magistrate (S)-II, Kamrup at Guwahati in C.R. Case No. 4247C/2007 dismissing the complaint and sent the respondent, herein, at liberty. 3. The brief facts requisite for adjudication of the issue arising in the present proceeding is noticed as under. The complainant/ Appellant, herein, had instituted a complaint case under Section 138 of NI Act, alleging therein that the respondent No. 1, herein, had issued a cheque in his favour which was dishonoured by the Bank due to insufficient funds in the account of the respondent. In the complaint, it was projected that the present Appellant was the proprietor of M/s Tirupati Supply Agency and the respondent No. 1, herein, was the proprietor of M/s Kabita Cycle Store. It was projected that between the parties there was a business transaction and accordingly, the respondent, herein, had accumulated a debt of Rs. 3,50,000/- (Rupees Three Lakhs Fifty Thousand) on account of purchase of cycle and accessories from the Appellant, herein. It was further projected that towards discharging the said liability a cheque bearing No. 891563 dated 11-05-2007 for an amount of Rs. Rs. 3,50,000/- (Rupees Three Lakhs Fifty Thousand) was issued in favour of the petitioner, herein. The petitioner, herein, had deposited the cheque for encashment on 11-05-2007, however, the same was returned unpaid and the reason assigned was “insufficiency of funds” in the Bank account of the respondent No. 1, herein. In the complaint petition, it was projected that a legal notice was issued to the respondent, herein, on 22-02-2006 and thereafter, on the respondent No. 1 not having paid the Page No.# 3/6 cheque amount, the complaint came to be instituted. The learned Trial Court upon conclusion of the trial, appreciating the evidences coming on record had drawn a conclusion to the effect that the cheque was dishonoured on the ground of insufficiency of funds, available in the Bank account of the respondent No. 1, herein, for honouring the same. Having drawn the said conclusion the learned Trial Court proceeded to examine as to whether the requirement under Section 138 of the NI Act was satisfied in the matter by the Appellant, herein. On such examination, it was found that the notice issued was received by the respondent, herein, on 04-06-2007 and the notice was dated 02-06-2007. The learned Trial Court upon appreciating the evidences coming on record which had demonstrated that the Appellant, herein, had issued the notice on 22-06-2007 (Exhibit-4), but the notice received by the respondent No. 1, herein, was dated 02-06-2007 proceeded to conclude that the notice received by the respondent on 04-06-2007, being dated 02-06-2007, held that the complaint filed on 25-07-2007 was beyond the period of limitation prescribed for filing of the complaint case and accordingly, proceeded to hold that the complaint case was not maintainable as there was no prayer for condonation of delay in filing the same. The respondent, herein, came to be acquitted of the charge under Section 138 of the NI Act and he was set at liberty. The Appellant being aggrieved has instituted the present proceeding. 4. I have heard the learned counsel for the parties and also perused the materials available on record. 5. The learned Trial Court upon considering the evidences coming on record had held Page No.# 4/6 that the cheque bearing No. 891563 dated 11-05-2007 for Rs. 3,50,000/- (Rupees Three Lakhs Fifty Thousand) was issued by the respondent No. 1, herein, in discharge of his legally enforceable liability. The said aspect of the matter has not been disputed. Having drawn the said conclusion, the learned Trial Court proceeded to consider as to whether the cheque was dishonoured for insufficiency of funds in the Bank account of the respondent No. 1, herein. On considering the evidences coming on record, the learned Trial Court drew a conclusion to the effect that the cheque in question was dishonoured on account of insufficiency of funds in the Bank account of the respondent No. 1, herein. Having drawn the said conclusion, the learned Trial Court proceeded to consider as to whether the demand notice issued by the Appellant, herein, regarding dishonouring of the cheque was received by the respondent No. 1, herein. The learned Trial Court found that the Appellant, herein, during his deposition as PW-1 had deposed that he had issued the demand notice in respect of dishonour of the cheque through his advocate on 22-06-2007 by speed post. A copy of the said notice was produced and the same was marked as Exhibit-4. The learned Trial Court further found that the respondent No. 1, herein, during his deposition had deposed that he had received notice dated 04-06-2007 and the notice so received by him was dated 02-06-2007 and not 22-06-2007 as stated by the Appellant. The copy of the notice dated 02-06-2007 was exhibited as Exhibit-A by the respondent No. 1, herein. During the cross-examination of the respondent No. 1, herein, by the Appellant, he was not put any question with regard to the receipt of the demand notice in respect of the dishonouring of the cheque on 04-06-2007. Exhibit-A was not disputed during such cross-examination of the respondent, herein, by the Appellant, herein. Page No.# 5/6 Further, the advocate issuing the legal notice exhibited as Exhibit-A by the respondent No. 1, herein, was not examined during the trial and accordingly, no clarification has come on record with regard to the dates mentioned in the Exhibit-4 as well as Exhibit-A, notices. It is to be noted that both the notices dated 02-06-2007 and 22-06-2007, are replica of each other. 6. In view of the said position emanating from the evidences coming on record and the Appellant, herein, having not disputed the Exhibit-A notice dated 02-06-2007, the learned Trial Court proceeded to hold that the complaint being filed on 25-07-2007, the demand notice being received by the respondent No. 1, herein, on 04-06-2007 and the legal notice being dated 02-06-2007, the complaint was filed beyond the period of limitation prescribed. The learned Trial Court further held that the Appellant, herein, in his complaint had not prayed for condoning the delay in lodging the complaint case. 7. The conclusion as drawn by the learned Trial Court in the matter on being considered in the light of the evidences coming on record, this Court finds that the Appellant, herein, had not got the issue with regard to the actual date on which the notice came to be issued, clarified by examining his advocate who had issued the notice. Said position gets further fortified from the deposition of the Appellant, herein, as PW-1, during his cross-examination, wherein he had deposed that his advocate had issued that notice dated 02-06-2007, on his instruction. Accordingly, the notice being found issued by the Appellant on 02-06-2007 and the same having been received by the respondent, herein, on 04-06-2007, the filing of the complaint case on 25-07-2007 was admittedly beyond the period of limitation and there was no prayer for condonation of the delay Page No.# 6/6 occasioning in the matter. 8. Accordingly, this Court is of the considered view that the conclusion drawn by the learned Trial Court of the Complaint being instituted beyond the period of limitation by the Appellant, herein, would not mandate any interference. Accordingly, the acquittal of the respondent No. 1, herein, from the charge under Section 138 of the NI Act would also not mandate any interference. 9. Accordingly, the judgment dated 03-09-2013 passed by the learned Sub-Divisional Judicial Magistrate (S)-II, Kamrup at Guwahati in C.R. Case No. 4247C/2007, would not mandate any interference. 10. In view of the above, the present appeal is held to be devoid of any merit and the same is, accordingly, dismissed. 11. Registry to send back the TCR along with a copy of this order for information and necessary action. JUDGE Comparing Assistant