Page No.# 1/4 GAHC010102132026 2026:GAU-AS:12822 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./739/2026 SHRI ROBI BORUAH S/O BIJOY BORUAH, R/O BORUAH COMPLEX, RAILWAY STATION ROAD BANIPUR, NEAR BYE LANE 1, BANIPUR, DHAKERI GAON, DIBRUGARH, ASSAM, PIN-786003 VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM 2:CHOLAMANDALAM INVESTMENT AND FINANCE COMPANY LIMITED REPRESENTED BY ITS DIRECTOR HAVING ITS REGISTERED OFFICE AT DARE HOUSE NO 2 NSC BOSE ROAD PARRYS CHENNAI TAMIL NADU PIN- 60000 Advocate for the Petitioner : MR P R SARMA, Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY ORDER Date : 03.09.2026 1. Heard Mr. P R Sarma, learned counsel for the petitioner. Also heard Mr. K Baishya, learned Additional Public Prosecutor, Assam Page No.# 2/4 appearing for the respondents. 2. By way of the present petition under section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the petitioner seeks quashing of NI Case No. 2534/2025, pending before the learned Additional Chief Judicial Magistrate Kamrup (M), Guwahati, as well as the process issued therein. 3. The principal grounds urged are that the cheque was issued as a security cheque and was subsequently filled up for an amount allegedly not payable by the petitioner; it is a secured property; and that the parties had agreed to opt for arbitration. 4. These are essentially questions, concerning the nature of the transaction, the liability underlying the cheque and the effect of subsequent correspondence. They involve disputed questions of fact and cannot, in absence of incontrovertible material, be conclusively decided, in exercise of inherent power and inherent jurisdiction. 5. Significantly, the complaint petition itself, on the basis of which the learned Magistrate proceeded and issued the process, has not been placed before this Court. In such circumstances, this Court cannot properly examine the foundational averments in the complaint to determine whether the statutory ingredients under Section 138 of the Negotiable Instrument Act, 1881 are absent. 6. The reliance placed by the learned Counsel on V. Y. Jose and Anr versus State of Gujarat and Anr reported in (2009) 3 SCC 78, does not advance the case of the petitioner. Page No.# 3/4 The same decision concerns allegations of cheating arising out of a contractual transaction and the requirement of fraudulent or dishonest intention at the inception. While there can be no quarrel with the general proposition that a proceeding may be quashed where the complaint, even taken at face value, discloses no offence, such exercise necessarily require examining of the averments in the complaint, that complaint is not before this Court. 7. Moreover, the present proceeding arises under Section 138 of the Negotiable Instrument Act where the statutory ingredients and presumption under Section 139 operate in their own field. There is no whisper in this regard even in the pleadings made in the present petition. The foundational grounds are only those which are enumerated herein above. 8. Whether the cheque was a security cheque, whether the amount filled herein represented a legally enforceable liability, and whether the petitioner can rebut the statutory presumption, are matters which may be raised before the learned trial court in accordance with law. 9. The alleged settlement also does not appear on the materials place to be an unequivocal discharge of the liability. The correspondence relied upon itself refers to adjustment upon sale/auction of the secured asset. 10. The arbitration clause by itself cannot be treated as excluding Page No.# 4/4 the statutory remedy under Section 138 of the Negotiable Instrument Act. 11. Therefore, in the totality of the matter and the materials present before this Court, no patent illegality, abuse of process of law or other exceptional circumstances warranting interference under Section 528 B.N.SS is made out. 12. The petition is accordingly dismissed. JUDGE Comparing Assistant