Page No.# 1/5 GAHC010110392025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./610/2025 VIKASH CHOUDHARY S/O DHANESHWAR CHOUDHARY R/O T.N. COURT APARTMENT, TARUN NAGAR, CHRISTIAN BASTI, DIST. KAMRUP (M), GUWAHATI, ASSAM, PIN-781005. VERSUS PAWAN KR SINGH S/O RAM CHANDRA SINGH R/O H. NO. 05, BY LANE 08, TARUN NAGAR, ABC, P.S. BHANGAGARH,P.O.CHRISTIAN BASTI, DIST. KAMRUP (M), GUWAHATI, ASSAM, PIN-781005. Advocate for the Petitioner : MR. M K DAS, O ASSUMI Advocate for the Respondent : MR. V N UPADHYAY, MS P MISHRA,MR P DAS BEFORE HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER Date : 09.12.2025 Heard learned counsel Mr. M.K. Das for the petitioner Vikas Choudhary who has filed this application under Section 528 of the BNSS with prayer for quashing the order dated 20.06.2024 passed by the learned JMFC, Kamrup (M) in connection Page No.# 2/5 with CR case No. 6792/2022, pending in the court of the learned JMFC, Kamrup (M). 2. Mr. P. Das, learned counsel appears for the respondent, Pawan Kumar Singh. 3. I have considered the submissions at the bar with circumspection. 4. It is submitted that a case has been initiated by the respondent owing to dishonour of cheque amount of Rs.1 Crore 61 lacs. During the pendency of the proceedings, the petition was filed under Section 143-A of the Negotiable Instruments Act (NI Act for short). The complainant/petitioner of this case through the petition under Section 143-A of the NI Act had prayed for an initial deposit of 20% of the cheque amount which was rejected by the court. 5. The complainant/petitioner is aggrieved by the order of the learned Trial court stating that the trial court has rejected the petition on the ground that the respondent has taken a plausible defense during the stage of offence explanation wherein he has categorically denied his signature on the two cheques in question. The accused/ respondent has also denied receiving the legal notice. It is submitted on behalf of the petitioner that the learned Trial Court has ignored the fact that the bank has already verified the signatures and sent the return memos, which clearly indicates insufficiency of funds. The report memo as well as the consignment report are marked as Annexure-1 series of the instant petition. It is submitted that the learned Trial Court has ignored the defense tactics adopted by the respondent. The learned counsel for the petitioner has relied on the decision of the Hon’ble Supreme Court in the case of Rakesh Ranjan Shrivastava vs. State of Jharkand & Ors. reported in (2024) 4 SCC 419 wherein it has been held that: “27.2.While deciding the prayer made under Section 143A, the Court must record brief reasons indicating consideration of all the relevant factors. Page No.# 3/5 27.3 The broad parameters for exercising the discretion under Section 143A are as follows: 27.3.1 The Court will have to prima facie evaluate the merits of the case made out by the complainant and the merits of the defence pleaded by the accused in the reply to the application. The financial distress of the accused can also be a consideration. * * * * * 27.3.3 If the defence of the accused is found to be prima facie plausible, the Court may exercise discretion in refusing to grant interim compensation. 6. Per contra, learned counsel for the respondent has laid stress in his argument that the trial court did not take into consideration the fact that the signatures have been denied. Initially the bank balance has to be considered and thereafter the signatures are verified by the bank. It is submitted that both the petitioner and the respondent are in a fiduciary relationship as the petitioner is the CA of the respondent. 7. It is further submitted that the service of notice cannot be presumed to be served under the General Clauses Act as the track consignment report cannot be relied upon without proper scrutiny. The track consignment report clearly reveals that notice was served on Ms. G. Devi, a relative and the notice was sent through DTDC, a private courier company. It is further submitted that this case is at the premature stage and the evidence has to be scrutinized and the question of prima facie case can only be considered after examination of PW-1. 8. The learned counsel for the respondent has also relied on the decision of the Rakesh Ranjan Srivastava (supra), wherein it has been observed that: “ There is no doubt that the word “may” ordinarily does not mean “must”. Ordinarily, “may” will not be construed as “shall”. But this is not an inflexible rule. The use of the word “may” in certain legislations can be construed as “shall”, and the word “shall” can be construed as “may”. It all depends on the nature of the power conferred by the relevant provision of the statute and the effect of the exercise of the power. The legislative intent also plays a role in the Page No.# 4/5 interpretation of such provisions. Even the context in which the word “may” has been used is also relevant.” * * * * * “ When the court deals with an application under Section 143A of the N.I. Act, the Court will have to prima facie evaluate the merits of the case made out by the complainant and the merits of the defence pleaded by the accused in the reply to the application under sub-section (1) of Section 143A. The presumption under Section 139 of the N.I. Act, by itself, is no ground to direct the payment of interim compensation. The reason is that the presumption is rebuttable. The question of applying the presumption will arise at the trial. Only if the complainant makes out a prima facie case, a direction can be issued to pay interim compensation. At this stage, the fact that the accused is in financial distress can also be a consideration. Even if the Court concludes that a case is made out for grant of interim compensation, the Court will have to apply its mind to the quantum of interim compensation to be granted. Even at this stage, the Court will have to consider various factors such as the nature of the transaction, the relationship, if any, between the accused and the complainant and the paying capacity of the accused. If the defence of the accused is found to be prima facie a plausible defence, the Court may exercise discretion in refusing to grant interim compensation. We may note that the factors required to be considered, which we have set out above, are not exhaustive. There could be several other factors in the facts of a given case, such as, the pendency of a civil suit, etc. While deciding the prayer made under Section 143A, the Court must record brief reasons indicating consideration of all the relevant factors.” 9. After considering the submissions at the bar and after going through the petition and the objections filed by the respondent, it is clear that this case is at the initial stage. 10. I have also considered the submission that the petitioner has submitted that the entire cheque amount with an additional amount of Rs.16 lacs has Page No.# 5/5 already been paid to the respondent. 11. At this stage, this court is unable to consider the merits of the case and the evidence garnered so far. This Court deems it appropriate that the petition can be taken up afresh for consideration, and therefore, the order dated 20.06.2024 is set aside and the learned trial court is directed to consider the petition under Section 143-A of the NI Act, or the petitioner may file a fresh petition under Section 143-A of the N.I. Act. 12. In terms of the above observation, the criminal petition stands disposed of. JUDGE Comparing Assistant