Gauhati High Court
Page No.# 1/12 vs Nilufa Sultana Barbhuiya on 5 August, 2025
Page No.# 1/12
GAHC010034652025
2025:GAU-AS:10628
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./203/2025
ANAMUL HAQUE
S/O- LT. MUDASSIR AHMED LASKAR, RESIDENT OF HOUSE NO. 60, F. A.
AHMED ROAD, PURANBASTI, SIXMILE, GUWAHATI-781037, DISTRICT-
KAMRUP(M), ASSAM.
VERSUS
NILUFA SULTANA BARBHUIYA
D/O- LATE MOZIBUR RAHMAN BARBHUIYA, RESIDENT OF VILLAGE-
SONABARIGHAT, P.O- SONABARIGHAT, P.S- SILCHAR, DISTRICT- CACHAR,
ASSAM, PIN-788013.
Advocate for the Petitioner : MR. L MOHAN, MR A HOSSAIN
Advocate for the Respondent : MS. N SAIKIA, MRS. P GOSWAMI,MS. A. BORA
BEFORE
HONOURABLE MR. JUSTICE PRANJAL DAS
JUDGMENT & ORDER (ORAL)
Date : 05-08-2025
1. Heard Mr. J. I. Borbhuiya, learned counsel for the petitioner and Ms. N. Saikia, learned counsel for the respondent.
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2. The instant application has been filed under section 528 of the BNSS,2023 by the petitioner, Anamul Haque seeking setting aside and quashing of the entire proceeding of NI case No. 25 of 2023 pending before the learned court of Additional CJM, Cachar, Silchar.
3. The facts in a nutshell are that the sole respondent, Nilufa Sultana Barbhuiya is stated to have issued a cheque in favour of the petitioner, Anamul Haque of Rs. 3 (three) lakhs which was however, dishonored due to alleged insufficiency of funds. Thereafter, the complainant issued a notice and after the expiry of the statutory period of 15 days, filed the complaint dated 20.01.2023.
4. The complainant also submitted initial deposition by way of evidence on affidavit of herself as PW-1. Vide order dated 02.09.2023, the Court of the learned Additional CJM, Cachar, Silchar was pleased to take cognizance by issuing summoning order. The petitioner side has contended that there are several discrepancies in the case of the complainant and that, the entire proceedings pending before the learned trial court are liable to be quashed.
5. Heard Mr. J. I. Borbhuiya, learned counsel for the petitioner invoking the inherent powers of this court in seeking the aforesaid relief, who submitted that the complaint has been filed against Anamul Haque Laskar though his actual name is Anamul Haque. It is further contented that in the legal notice issued by the complainant before initiating the proceeding also, his name has been written as Anamul Haque Laskar. It is also stated and submitted that in para 1 of the said legal notice, the account number has been mentioned as 2083697005 and that the same is not the bank account number of the petitioner/accused.
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6. It is also submitted by the learned counsel that the father's name of the petitioner has also been wrongly written as Mudassir Muktar Laskar instead of Mudassir Ahmed Laskar. Another contention of the petitioner side is that in the legal notice, the receipt which is one of the conditional facts for granting cause of action in a cheque bouncing proceeding, was sent to the wrong person with a wrong cheque number and never received by the petitioner.
7. In this backdrop, it is submitted that the cause of action never arose in the instant case as required by the relevant provisions under the Negotiable Instruments Act (hereinafter referred as NI Act). Accordingly, the learned counsel representing the petitioner side contends and submits that the case of the complainant/respondent suffers from lack of cause of action and fatal errors and hence, the prosecution in its entirety should be set aside and quashed.
8. Heard Ms. N. Saikia, learned counsel for the respondent/ complainant. The respondent complainant submits through her learned counsel that the petitioner and the complainant are relatives and acquaintances and the surname Laskar happens to be their family name, which was also written by the petitioner but subsequently, he dropped that family name Laskar. It is contended that the petitioner has not denied issuance of the cheque and the cheque number is also not in dispute. It is further contended that the apparent error in the middle name of the petitioner's father is a typographical error; that the account number given in the notice also suffered from a typographical error and that the correct account number finds mention in the initial deposition by way of evidence of affidavit. It is also contended that as the petitioner had changed his Page No.# 4/12 name, dropping the family name Laskar, the notice was issued in the name of Anamul Haque Laskar and that the same can also be taken as a typographical error.
9. Relying on a decision which will be gone into later, the learned counsel for the respondent submits that an error of the account number in the legal notice would not be a fatal error as contended by the petitioner side and that riding on the back of the supposed typographical errors, the petitioner should not be allowed to evade and escape from the criminal prosecution, where the respondent/complainant is genuinely aggrieved by the bouncing of the cheque of value Rs. 3 (three) lakhs.
10. The scanned copy of the trial court records till the present stage has been received and I have perused the relevant portions thereof.
11. I have perused the criminal petition, the complaint before the learned court below and other relevant materials. I have also perused the affidavit-in-opposition filed by the respondent/complainant narrating about the supposed typographical errors as referred above. I have also considered the rival submissions and the case laws submitted.
12. The said cheque copy indicates the date as 08.12.2022; the cheque number is mentioned as 249837; amount is mentioned as Rs. 3 (three) lakhs; the name of the bearer of the cheque is mentioned as Anamul Haque; the account number is mentioned as State bank of India 20083697005. The return memo dated 09.12.2022 i.e. on the very next day, issued by the State bank of India indicates the amount as Rs. 3 (three) lakhs and the reason of return stated as insufficiency of funds. These two documents have been mentioned as exhibited documents as Page No.# 5/12 part of the evidence on affidavit of the complainant as DW-1.
13. I find that in the legal notice dated 01.12.2022, the respondent/complainant, Nilufa Sultana Borbhuiya has issued the notice to Anamur Haque Laskar, son of late Modossir Mukhtar Laskar and in para,1, the cheque number has been mentioned as 249837 dated 08.12.2022 for an amount of Rs. 3 (three) lakhs. The account number of State Bank of India has been mentioned as 2083697005.
14. Though, the petitioner side has contended strongly that the notice was never received, there was a contrary contention by the respondent/complainant through her learned counsel that, it was sent by speed post of the Indian Postal Department and the postal receipt dated 21.12.2022 is sought to be exhibited as Exhibit P4 as part of the Examination in Chief of PW1 complaint.
15. The learned respondent counsel has drawn my attention to the said examination in chief reflecting the correct cheque number and Account number of 20083697005 of State bank of India, Sonai Branch, Silchar. It is also contended in para 6 of the said deposition that notice sent vide speed Post receipt number RS542186636IN dated 21.12.2022 was received by the petitioner accused on 27.12.2022. The postal consignment is also sought to be exhibited as Exhibit P-5.
16. I have perused the order dated 02.09.2023 whereby the learned trial court has taken cognizance and summoned the accused person. A copy of the passbook of State bank of India has been annexed with the petition in which, with regard to account number 20083697005, the name of the customer is mention as Anamul Haque, son of Late Mudassir Page No.# 6/12 Ahmed Laskar.
17. The learned counsel for the petitioner has referred to a decision of the Hon'ble Madras High Court in the case of Mohamad Irfan vs Velukannan in Criminal Appeal No. 94/2014 . The Learned Counsel has drawn the attention of the Court to para 24, 25, 26, 28, 33 and 34 which are reproduced below:
"24.Moreover, an offence within Section 138 of the Negotiable Instruments Act is complete with the dishonour of cheque, but taking cognizance of the same by any Court is prohibited so long as the Complainant does not have any 'Cause of Action' to file a complaint as per clause (c) of the proviso read with Section 142 of the Negotiable Instruments Act.
25.It cannot be brushed aside that if there is a structural defect in Cheque, an offence under Section 138 of the Negotiable Instruments Act is not made out. After all, the 'Cause of Action' is therefore, the non-payment of money to the Payee within 15 days of receipt of Notice by which demand for payment of the said money was made. That demand has to be made under Clause (b) of the proviso to Section 138 of the Negotiable Instruments Act, in the considered opinion of this Court.
26.In fact, the aim of issuance of notice is to provide a prior intimation about action to be taken against an individual on whom the notice is served. However, if the purport of notice suffers from mist, shroud/cloud and if one is not able to reasonably decipher, then, it will not enure to the benefit of a Complainant. Further, Section 138 of the Negotiable Instruments Act being a technical offence all the requisite technical formalities ought to be complied with as per Section 138 of the Negotiable Instruments Act. A mere perusal of Section 142(b) of the Negotiable Instruments Act shows that the words 'Cause of Action' are employed and for taking cognizance of an offence, the elements mentioned in Section 138 are might essential, though they are not part of action constituting an offence/crime, as opined by this Court.
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28.Before filing a complaint under Section 142 of the Negotiable Instruments Act for having committed an offence under Section 138 of the Negotiable Instruments Act, compliance of certain provisions of the Act are necessary; (1) a Notice as per Section 138(b) of the Act is to be issued by the 'Payee' or the 'Holder in Due Course' of the cheque making a demand for payment of the amount mentioned in the cheque; (2) 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 sum by giving a notice in writing to the Drawer of cheque within 15 days of receipt of information by him from the Bank in regard to the return of the cheque as 'unpaid' etc. It is to be pointed out that if a statutory notice is issued, a Cause of Action arises which cannot be resurrected/ revived by issuing another notice. However, if a complaint is filed after service of another/second notice, the same will be hit by Limitation, in the considered opinion of this Court."
33. At this juncture, this Court worth recalls and recollects the decision of the Hon'ble Supreme Court in Suman Sethi V. Ajay K. Churiwal reported in 2000 Cri.L.J. 1391 (SC) at special page 1392, wherein at paragraph 6, it is observed as under:
"We have to ascertain the meaning of the words 'said amount of money' occurring in clause (b) and (c) to the proviso to Section 138. Reading the Section as a whole we have no hesitation to hold that the above expression refers to the words 'payment of any amount of money' occurring in main Section 138 i.e., the cheque amount. So in notice, under clause (b) to the proviso, demand has to be made for the cheque amount.
Added further, in the aforesaid decision at paragraph 8, it is observed as follows:
It is well settled principle of law that the notice has to be read as a whole. In the notice, demand has to be made for the 'said amount' i.e., cheque amount. If no such demand is made the notice no doubt would fall short of its legal requirement.
34.As far as the present case is concerned, in the complaint, the Appellant/Complainant, at paragraph 8 and 12 had Page No.# 8/12 mentioned the number of the cheque as '361868' dated 22.03.2013, but at paragraph 9 of the complaint, the cheque number was mentioned as '361838'. In fact, in Ex.R1 Legal Notice dated 17.04.2013 (issued to the Respondent/Accused), the cheque number was mentioned as '361868' but at paragraph 5 of the said notice, the cheque that was deposited on 22.03.2013, described as '361838'. Even though incorrect mentioning of the Cheque number in Ex.R1 - Legal Notice dated 17.04.2013 is a mistake or ancillary or incidental one, since the transaction between the Appellant/Accused viz., supply of chickens, the evidence of P.W.1 indicates that the Respondent/Accused had issued the cheque in favour of the Appellant/Complainant towards security for the outstanding amount. At this stage, this Court aptly points out that if the cheques were issued not for discharge of any debt or liability, but they were issued by way of security, the Applicant could not be held liable under Section 138 of the Negotiable Instruments Act, as per decision Jitendra Singh Flora v. Ravikant Talwar, [2001] 2 Crimes 534."
18. The Hon'ble Madras High Court has stated that under Section 138 of the NI Act, though the offence is about dishonour of the cheque, but cognizance thereof is contingent on fulfillment of the relevant provisions under Section 142 of the Act and one of the essential components is having the cause of action as stipulated by the said provision. It is also stated that if there is any structural effect in the cheque, it could fatally affect the cause of action for initiating a prosecution under the Act. In this backdrop, it is also held that the accused must have proper intimation about the cause of action and the material facts for initiating the prosecution.
19. In para 33, the Hon'ble High Court has referred to the decision of the Hon'ble Apex Court in Suman Sethi vs Ajay Kumar Churiwal and another 2000 Crl. L. J. 1391 (SC) in which it was held inter alia that -
Page No.# 9/12 "it is a well settled principle of law that a notice has to be read as a whole and in the notice demand has to be made of the said amount that is the cheque amount. If no such demand is made then notice would fall short of the legal requirement"
20. In para 34, the court has referred to and discussed the particular facts of that case in which there was a defect in the number of the Cheque, and after the discussion, the Hon'ble Madras High Court was pleased to upheld the decision of the learned court below in acquitting the accused person.
21. The learned counsel for the respondent/complaint has relied upon two decisions- The case of Mohammad Sayeed vs State of Jharkhand reported in 2022 Supreme (Jhk) 1138 and the decision of the Hon'ble Madhya Pradesh High Court in Bhupendra Singh Thakur vs Umesh Sahu reported in 2022 Supreme (MP)174.
22. With the assistance of the learned counsel, I have perused the relevant paragraph pointed out. In para 12 the Hon'ble Jharkhand High Court held as follows:
"12.Before parting, it would be relevant to clarify that a wrong cheque number, as alleged in the instant case by the petitioner, mentioned in the complaint petition and/or the legal notice may not be the end-all and be-all of the case. The other factors are also required to be seen to decide as to whether the complainant has been able to prove his case.
At the cost of repetition, the original cheque was placed before the trial court and the same was exhibited. The cheque as well as the signature has been accepted by the petitioner. Thus, the presumption under Section 139 would operate and the wrong number of the cheque in the complaint and/or in the legal notice would not make any difference and has to be taken as typographical error."
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23. Thus, it was held by the Hon'ble High Court in that case that, a wrong cheque number in the complaint petition and/or legal notice may not fatally damage the prosecution and that other factors also have to be seen regarding the maintainability of the prosecution. In that case, it was held that the complainant was able to activate the presumption of the 139 of the Act and that, wrong number of the Cheque in the complaint/legal notice would not make any difference and has to be taken as a typographical error.
24. In the case of Bhupendra Singh Thakur (Supra) Hon'ble Madhya Pradesh High Court in para 13 referred to the decision of the Hon'ble Supreme Court UP Pollution Control Board vs Messrs Modi Distilleries, reported in (1987) 3 SCC 684 and S.R.Sukumar vs S. Sunaad Raghuram reported in (2015) 9 SCC 609 wherein it was laid down that curable infirmities can be corrected even in criminal complaint cases, in the larger interest of justice.
25. On the basis of the materials that has come on record in the present case, there is no error in the cheque number. However, the main dispute is with regard to the name of the accused. Thus, while the complainant has sought to prosecute, Anamul Haque Laskar initially before seeking the correction, the petitioner claims that he is an Anamul Haque and not Anamul Haque Laskar, who is a different person. As already stated, the name of the payee in the cheque number 249837 of State bank of India dated 08.12.2022 is mentioned as Anamul Haque. The bouncing of the cheque due to insufficiency of funds prima facie appears from the return memo dated 9.12.2022.
26. I also find that though there is a discrepancy in the account number Page No.# 11/12 of the legal notice and the cheque, but the account number mentioned in the cheque tallies with the account number mentioned in the initial deposition on affidavit of the complainant. While the petitioner denies that any such legal notice was received, the respondent/complainant seeks to adduce documentary evidence about any such receipt.
27. One of the main contentions of the petitioner side is that he is Anamul Haque Laskar and who is a different person. The issuance of the cheque number 249837 by one Anamul Haque dated 08.12.2022 has not been specifically denied. It is strongly contended that the petitioner is not Anamul Haque Laskar at all and rather, as already stated earlier, he is Anamul Haque.
28. Though the law on quashing of criminal proceedings in exercise of inherent powers is still evolving over time, the main principles with regard to different aspects of such jurisdiction have been enumerated and settled in numerous decisions of the Hon'ble Supreme Court, starting with the foundational judgment in the case of State of Haryana and others vs Bhajan Lal and others reported in 1992 Supp (1) SCC 335.
29. Needless to say that appreciation of evidence is the exclusive domain of the trial court and also, to a large extent, the first appellate Court. The jurisdiction under inherent powers cannot step into that domain of appreciation of evidence. Two of the important principles regarding the quashing of criminal proceedings are that there is some legal bar or impediment in allowing the prosecution to proceed and secondly, that there are materials which will satisfy the conscience of the court exercising inherent powers that allowing the prosecution to continue would be nothing but an abuse of the process of the court.
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30. Coming back to the instant case, while I find that some of the basic facts about dishonour of the cheque prima facie have been raised by the complainant side in the proceeding below, there are several issues where the parties are at considerable dispute, such as the identity of the accused itself and the receipt of a notice, amongst others.
31. Apart from the above referred basic facts, the determination of these disputes especially the identity of the accused would require the adducing of evidence, cross examination and appreciation of evidence - which would be the domain of trial court and would be beyond the scope of the jurisdiction being exercised by this Court as part of its inherent powers.
32. Therefore, I am of the considered opinion that in the face of such disputed facts which are awaiting answers through proper evidence and its appreciation, it might be a miscarriage of justice if a criminal proceedings itself is quashed at this nascent stage in exercise of inherent powers.
33. Consequently, in the given facts and circumstances and in the backdrop of the aforesaid discussions, I come to the considered finding that it would not be justified to exercise the inherent powers in favour of the accused petitioner and accordingly, the instant petition stands rejected and disposed of.
JUDGE Comparing Assistant