Page No.# 1/11 GAHC010122372024 2026:GAU-AS:1635 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet. No. 722/2024 1. Sri Ram Narayan Singh, S/o Late Rajendra Prasad Singh, R/o Daily Bazar, Near Buddha Mandir Road Tiniali, P.O. & P.S.- Duliajan, District - Dibrugarh, Assam. 2. Miss Ritushree Rashmi Singh, D/o Sri Ram Narayan Singh, R/o Daily Bazar, Near Buddha Mandir Road Tiniali, P.O. & P.S.- Duliajan District – Dibrugarh, Assam. ……………… Petitioners -VERSUS- 1. Sri Chandra Bahadur Viswakarma, S/o Late Manvir Bahadur Viswakarma, R/o Doh Hukuta, Duliajan, Kamalabari Road, District - Dibrugarh, Assam, Pin-786602. 2. The State of Assam, Represented by the Public Prosecutor, Assam. ……………… . Respondents Page No.# 2/11 BEFORE HON’BLE MR. JUSTICE MANISH CHOUDHURY Advocates : For the Petitioners : Mr. R. Chakravorty, Advocate For the Respondent no. 2 : Ms. S.H. Bora, Additional Public Prosecutor, Assam. Date on which judgment is reserved : Not applicable Date of Hearing : Not applicable Date of pronouncement of judgment : 30.01.2026 Whether the pronouncement is of the Operative part of the judgment ? : No Whether the full judgment has been Pronounced ? : Yes JUDGMENT & ORDER 1. This criminal petition under Section 482 read with Section 401, Code of Criminal Procedure is preferred by the two petitioners seeking quashing and setting aside of the criminal proceeding of a complaint case, N.I Case no. 219/2023, which is presently pending before the Court of learned Sub-Divisional Judicial Magistrate [S], Dibrugarh [‘the Trial Court’, for short]. 2. The background facts can be stated, briefly, as follows :- The respondent Page No.# 3/11 no. 1 herein as the complainant has instituted the complaint case before the Court of learned Chief Judicial Magistrate, Dibrugarh in the year 2023 arraying the two petitioners herein as accused no. 2 and accused no. 1 respectively. The complaint has been filed against the two accused persons alleging commission of an offence under Section 138 of the Negotiable Instruments Act, 1881. After registering the complaint as complaint case, N.I. Case no. 219/2023, the case record was forwarded to the Court of learned Sub-Divisional Judicial Magistrate [S], Dibrugarh for disposal. The initial deposition of the complainant under Section 200, CrPC was filed in the form of an affidavit. The Trial Court took cognizance on the complaint and finding sufficient ground for proceeding under Section 138, Negotiable Instruments Act against the two accused persons, that is, the petitioners herein, issued process to the petitioners for their appearance to answer the accusations made against them. 3. I have heard Mr. R. Chakravorty, learned counsel for the petitioners and Ms. S.H. Bora, learned Additional Public Prosecutor for the respondent no. 2, State of Assam. Despite service of notice upon the respondent no. 1- complainant, the respondent no. 1-complainant has not appeared before this Court. 4. It is the contention of the learned counsel for the petitioners that in so far as the petitioner no. 1, that is, accused no. 2 [hereinafter also referred to as ‘the accused no. 2’, at places, for ease of reference] is concerned, he was not a signatory to the cheques involved in N.I Case no. 219/2023. It has been contended that there is no legally enforceable debt towards the complaint in so far as the accused no. 2 is concerned and the said fact would be evident from a Page No.# 4/11 General Power of Attorney executed by the petitioner no. 2-accused no. 1 [hereinafter also referred to as ‘the accused no. 1’, at places] in favour of the complainant on 20.12.2021 and the Declaration executed by the complainant in presence of witnesses including the accused no. 2. By referring to the declaration, it is contended that a cheque book of Punjab National Bank, Duliajan Branch containing 20 nos. of cheque leaves ranging from cheque no. 132781 to cheque no. 132800 was handed over to the complainant and three cheques involved in N.I. Case no. 219/2023 were among those cheque leaves handed over to the complainant by the accused no. 1 to carry out transactions on her behalf with M/s Oil India Ltd. 5. In the complaint, the respondent no. 2-complainant has averred that there was a business relationship between the complainant and the accused no. 2 with regard to supply of a vehicle to M/s Oil India Ltd., Duliajan under contract and talk of business fructified into a business agreement between them. The complainant has alleged that he was made to invest a sum of Rs. 7,29,791/- on the basis of an agreement executed between him and the accused no. 1 on the strength of a power of attorney. The investment was made for and on behalf of the accused no. 1. But the accused no. 1 in collusion with the accused no. 2 violated the terms and conditions of the agreement and the Power of Attorney and withdrew an amount of about Rs. 12,00,000/- from M/s Oil India Ltd. and thereafter, misappropriated the same without making any payment to the complainant. When the complainant made demand for his invested amount, the accused no. 1 had sent the following cheques drawn on an account maintained by the accused no. 1 at Duliajan Branch of Punjab National Bank with the accused no. 2 to hand them over to the complainant :- Page No.# 5/11 Sl. No. Cheque No. Cheque Date Amount 1. 132784 03.11.2023 Rs. 3,00,000/- 2. 132785 06.11.2023 Rs. 2,00,000/- 3. 132786 09.11.2023 Rs. 2,00,000/- 6. The afore-mentioned three cheques were part of the complaint and are part of the case record. It is evident that the three cheques were issued from a bank account maintained by the accused no. 1 at Duliajan Branch of Punjab National Bank. 7. The complainant has alleged that when the three cheques were presented for collection at his bank, the cheques were returned unpaid on the ground of insufficiency of fund in the account of the drawer accused no. 1. The complainant has stated that it was after following the statutory formalities prescribed in the Negotiable Instruments Act, 1881, as amended, he has to institute the complaint. In the complaint, the complainant has made a prayer for taking cognizance on the complaint for the offences under Sections 418/420, Indian Penal Code and Section 138 of the Negotiable Instruments Act, 1881, as amended. 8. The Trial Court after perusal of the contents of the complaint and on the basis of the initial deposition of the complainant in the form of affidavit and the documents annexed thereto including the three cheques, took cognizance only for the offence under Section 138, Negotiable Instruments Act, 1881, as Page No.# 6/11 amended, on 08.01.2024 and issued process against both the two petitioners, who have been arrayed as accused no. 2 and accused no. 1 respectively in the complaint. 9. From the statements and averments made in the complaint itself, it has emerged that the complainant had apparently entered into business transactions only with the accused no. 1. The complainant had alleged about disputes between him and the accused no. 1. The complainant has alleged that the accused no. 1 had conspired with the accused no. 1, who is her father, to cheat him. 10. The afore-mentioned three cheques which are part of the case record, were only issued by the accused no. 1 as a drawer of the cheque from Account no. 0016200100001227 maintained by her at Duliajan Branch of Punjab National Bank. Meaning thereby, the accused no. 1, that is, the petitioner no. 2 was the sole signatory of the alleged dishonoured cheques. The three cheques were issued by the accused no. 1 in her individual capacity and not either as a partner of any partnership firm or Director/Managing Director, etc. to bring in the provision of Section 141, Negotiable Instruments Act, 1881, as amended, into operation. 11. Section 138 and Section 139 of the Negotiable Instruments Act, 1881, as amended, have provided as under :- 138. Dishonour of cheque for insufficiency, etc., of funds in the account.— Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the Page No.# 7/11 discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless— [a] the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; [b] the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and [c] the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.—For the purposes of this section, ‘debt of other liability’ means a legally enforceable debt or other liability. 139. Presumption in favour of holder.— It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section138 for the discharge, in whole or in part, of any debt or other liability. 12. From the provisions of Section 138, Negotiable Instruments Act, 1881, as amended, it is evident that before any person can be prosecuted, the following conditions are required to be fulfilled :- Page No.# 8/11 [i] that the cheque is drawn by a person and on an account maintained by him with a banker; [ii] for the payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability; and [iii] the said cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account. 13. Section 139 of the Negotiable Instruments Act, 1881, as amended, has provided for presumption in favour of the holder of the cheque and against the drawer of a cheque. As per Section 139, Negotiable Instruments Act, 1881, as amended, it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to for the discharge, in whole or in part, of any debt or other liability. Therefore, as per the presumption under Section 139, the jurisdictional Court is obliged to presume that the cheque in question was issued by the drawer or accused for the discharge of a debt or liability. In view of such presumption, upon filing of the complaint along with the relevant documents including the cheque alleged to have returned unpaid, it prima facie establishes the case against the drawer and the onus of proof shits on the drawer or accused for rebutting the said presumption based on preponderance of probabilities. Rebuttal of the presumption under Section 139 can be made with reference to evidence of prosecution as well as of defence. But, the same is possible only at the stage of trial. Page No.# 9/11 14. In a criminal petition preferred under Section 482, CrPC, an accused person seeking quashing of a criminal proceeding is not allowed to introduce any document in support of his case. The parameters of exercising inherent powers available to this Court under Section 482, CrPC have been well delineated in the decision of State of Haryana vs. Bhajan Lal, [1992] supp [1] SCC 335. Only in the event the document sought to be introduced by the accused is found to be one of unimpeachable character then only the same can be looked into. The documents, that is, the General Power of Attorney dated 20.12.2021 and the ATM Card-cum-Declaration, which the petitioner no. 2 has brought on record to further her case in this criminal petition are not ones which fall in the category of documents of unimpeachable character. Mere denial regarding existence of debt or liability by the drawer or accused by introduction of such documents are not to be gone into by this Court exercising the inherent jurisdiction under Section 482, CrPC. 15. As the Trial Court has taken cognizance of the offence under Section 138, Negotiable Instruments Act, 1881, as amended, such cognizance can be taken against the drawer of the cheque. Therefore, the person who is the signatory to the cheque is drawn by that person on an account maintained by him and the cheque has been issued for the discharge, in whole or in part, of any debt or other liability and the said cheque has been returned by the bank unpaid, such person can be said to have committed an offence. 16. In such view of the matter, this Court finds that the criminal proceeding, N.I Case no. 219/2023, in so far as the petitioner no. 2 is concerned, cannot be interfered with at this stage. It, however, remains open for the petitioner no. 2 Page No.# 10/11 to take such defence as available in the proceeding of N.I Case no. 219/2023. 17. It is settled that criminal liability on account of dishonour of a cheque primarily falls on the drawer, if it is a company, then on the drawer company and is also extended to the concerned offices of the company by virtue of Section 141 of the Negotiable Instruments Act. A penal provision is to be strictly construed and there is no vicarious liability in criminal law unless the statute takes that the principle of vicarious liability within its fold. Section 141 of the Negotiable Instruments Act is an instance of specific provision that in case an offence under Section 138 is committed by a company, the criminal liability for dishonour of a cheque will also extend to the officials of the company mentioned therein. Section 141 contains the conditions which are to be satisfied before the liability can be extended. If the prescribed conditions are not fulfilled, then the liability cannot be extended. The provision contained in Section 141 is a departure from the rule in criminal law against vicarious liability. To bring in the concept of such constructive liability there has to be requisite pleadings in the complaint. The complaint filed in N.I. Case no. 219/2023 is lacking in the requisite pleadings to rope in the accused no. 2 as a person to have committed the offence under Section 138 in aid of the principle of constructive liability. 18. It has already been found out that the accused no. 1 was the sole signatory in the cheque and the cheque was drawn on a bank account individually maintained by the accused no. 1 only. In the absence of the requisite pleadings as regards the provisions of Section 141, Negotiable Instruments Act, 1881, as amended, more so, when there was only a single signatory and it was issued in individual capacity, the arraignment of the Page No.# 11/11 accused no. 2 by alleging that he conspired with the accused no. 1 is sustainable in law. Section 138 of the Negotiable Instruments Act does not speak about the joint liability in the absence of the requisite conditions prescribed in Section 141 of the Negotiable Instruments Act, 1881. 19. In the above facts and circumstances, the criminal proceeding initiated against the petitioner no. 1 is an abuse of the process of law and its further continuation would perpetuate the illegality. 20. In view of the discussion made above and for the reasons assigned herein, this criminal petition is to be partly allowed to the extent indicated above. For the purpose of clarity, it is made clear that the criminal proceeding, N.I Case no. 219/2023, in so far as the petitioner no. 1 is concerned, stands quashed and set aside. In so far as the petitioner no. 2 is concerned, the prayer for quashing and setting aside of the criminal proceeding, N.I Case no. 219/2023, is declined. Meaning thereby, the proceedings of N.I Case no. 219/2023 will continue before the Trial Court. JUDGE Comparing Assistant Digitally signed by Pallabi Das Date: 2026.02.06 22:50:57 +05'30'