Page No.# 1/5 GAHC010195552023 2026:GAU-AS:12149 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.L.P./39/2023 M/S ASSAM TRADE AND AGENCIES REP. BY ITS PROPRIETOR, SRI DURGESH CHAND CHOUDHURY, S/O LATE RAM AVTAR CHOUDHURY, R/O ARYANECK LANE NO. II OF BARPETA ROAD TOWN, P.O. AND P.S.- BARPETA TOWN, DIST.- BARPETA, ASSAM. VERSUS THE STATE OF ASSAM AND ANR. REP. BY THE P.P., ASSAM. 2:BINOY BHUSAN DUTTA S/O LAKSHMI DUTTA R/O HOUSE NO. 10 NEAR EURO KIDS K.R.C. ROAD KANAKLATA ROAD KUMARPARA P.O. AND P.S.- BHARALUMUKH GUWAHATI- 781009 DIST.- KAMRUP (M) ASSAM Advocate for the Petitioner : MR. B J GHOSH, MR. DILIP DEY Advocate for the Respondent : PP, ASSAM, MR K DAS (r-2),MRS. R T DAS (r-2),MR. S DAS (r-2) Page No.# 2/5 BEFORE HON’BLE MRS. JUSTICE SHAMIMA JAHAN ORDER 24.08.2026 Heard Mr B J Ghosh, learned counsel for the petitioner. Also heard Mr K Baishya, learned Additional Public Prosecutor for the State of Assam. 2. By this application filed under Section 378 (4) of the CrPC, the petitioner has prayed for grant of special leave to prefer an appeal against the order of acquittal passed in NI Act Case No. 49 of 2016. 3. The case of the petitioner is that he is a businessman by profession and had a good relationship with the respondent No. 2, and that during business transaction, he paid to the respondent No. 2, an amount of Rs. 25,06, 380/- and the respondent No. 2, for paying back the said amount, issued a cheque vide Cheque No. 598941 dated 19.05.2016, in favour of the company of which the petitioner was the proprietor. It is the further case of the petitioner that he deposited the said cheque of the State Bank of India in his account on 21.05.2016, before the Union Bank of India for encashment, but the said cheque stood dishonoured due to insufficiency of fund. Thereafter, the petitioner issued notice to respondent No. 2, but the same was returned with the stipulation that respondent No. 2 had changed the address. For non-payment of the aforesaid amount, the petitioner had instituted a case under the Negotiable Instruments Act, 1881. 4. The learned Trial Court had determined 6 (six) points for adjudication and the points as well as the findings of the Trial Court are enumerated below:- i) Whether the case is maintainable in the present form? To this point, Page No.# 3/5 the learned Trial Court had returned the finding that the petitioner could not show or place any documents that he was the proprietor of the company, namely, M/s Assam Trade and Agencies. As such, the first point was decided against the petitioner. ii) Whether the respondent No. 2 had drawn the cheque for the discharge in whole or in part of any debt or other liability? To this point, the learned Trial Court held that the cheque was, in fact, given in the name of the company and further that, even if respondent No. 2 had taken the plea that cheque was given to one N Choudhury, but the same could not be proved in the case. This point was decided in favour of the complainant. iii) Whether the cheque was returned by the Bank on account of insufficiency of fund? To this point, the learned Trial Court held that respondent No. 2 was successful in rebutting the presumption with regard to the cheque return memo, and on that count, the point was decided in favour of respondent No. 2. iv) Whether the respondent No. 2 received a demand notice sent by the petitioner? To this point also, the Trial Court returned a finding that respondent No. 2 could rebut the presumption of law, i.e., the notice was not served upon him. This point was also in favour of respondent No. 2. v) Whether the respondent No. 2 failed to pay the cheque amount to the petitioner within the stipulated time? To this point, the Trial Court held that since the notice was not served upon the respondent No. 2, there was no question of payment. Page No.# 4/5 vi) Whether respondent No. 2 had committed an offence under Section 138 of the NI Act? To this, the learned Trial Court held that since the petitioner failed to prove the ingredients of Section 138 of the NI Act, the said issue was decided in favour of the respondent No. 2. 5. It is noticed that the Trial Court had held that respondent No. 2 had drawn the cheque for discharging his liability or in other words, for discharging his debt towards the petitioner. This shows that respondent No. 2 was indebted towards the petitioner and he had to return Rs. 25,06,380/- to the petitioner. It is also established by the witnesses examined in the instant case, more specifically, the employees of the Bank that the cheque could not be entertained and was returned by the Bank on the ground of insufficient fund. Although the Trial Court had stated that respondent No. 2 could rebut the presumption and that the petitioner could not rebut from his side, cannot override the fact that the cheque was returned by the Bank on the ground of insufficient fund. Further the fact as to whether the notice was served upon the respondent No. 2, it be stated that the particular address, i.e., Kumarpara, Bharalumukh, Guwahati, House No. 10, was, in fact jotted on the envelope. Although it has been stated that another address was pasted over the envelope in white paper, cannot go to the benefit of respondent No. 2, inasmuch, as the address given by the petitioner was present on the envelope. As such, it can be held that the notice was sent to the respondent No. 2 at his correct address and there was no fault on the part of the petitioner. Furthermore, it is an established fact that the petitioner was the proprietor of M/s Assam Trade and Agencies. 6. In view of the same, this Court deems it fit that special leave to appeal be granted to the petitioner for challenging the acquittal order dated 28.06.2023, passed by Chief Judicial Magistrate, Barpeta, in NI Case No. 49 of 2016. Page No.# 5/5 7. The Criminal Leave Petition is as such, allowed and the Registry is directed to register the connected criminal appeal and list the matter for admission. 8. The Criminal Leave Petition is disposed of, accordingly. JUDGE Comparing Assistant