Quashed

Mrs. Manashi Bordoloi v. Magnum Enterprise

Gauhati HC8 Apr 2019Crl.Pet./166/2018

Case brief

AI extract

What is this about?

Petitioner sought quashing of the cognizance order under Section 138 NI Act against her for a cheque dishonoured by her husband. Held that she could not be prosecuted as she did not issue the cheque, rendering the order illegal and incorrect.

What did the court decide?

The order taking cognizance of the offence under Section 138 NI Act against the petitioner is quashed as it is illegal and incorrect to prosecute a person who did not issue the cheque.

Mrs. Manashi Bordoloi Vs Magnum Enterprise — Cheque Dishonour | Gauhati HC (2019)

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GAHC010041652018

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THE GAUHATI HIGH COURT

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(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Crl.Pet. 166/2018

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1:MRS. MANASHI BORDOLOI

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W/O- SRI SAMRAT SANKAR DUTTA, R/O- VILL- DHOLI SONARI GAON, TITABOR, P.O. BARUAJAN, P.S. TITABOR, DIST- JORHAT, ASSAM, PIN785630

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VERSUS

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1:MAGNUM ENTERPRISE

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REP. BY THE PROPRIETOR SRI DHRUBAJYOTI DEKA, S/O- SISIR KR. DEKA, R/O- DISPUR, LAST GATE, P.O. AND P.S. DISPUR, DIST- KAMRUP (M), ASSAM, PIN-781006

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Advocate for the Petitioner : MR. K BORUAH

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Advocate for the Respondent : MR H DAS

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BEFORE HONOURABLE MR. JUSTICE HITESH KUMAR SARMA

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ORDER

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Date : 08-04-2019

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This is a criminal petition, filed under Section 482 Cr.PC, seeking quashment of the order, dated 29.6.2017, taking cognizance by the learned Judicial Magistrate 1^st Class, Kamrup (M), in C.R. Case No. 1262^C /2017, of offence under Section 138 of the NI Act against the petitioner and also continuation of the proceeding.

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I have perused the petition as well as the annexures furnished therewith.

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Heard Mr. K. Boruah, learned counsel for the petitioner as well as Mr. H. Das, learned counsel for the respondent.

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On perusal of the entire materials placed before this court and on hearing learned counsel for both the parties, it appears that the cheque involved in this case which was

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dishonoured, was issued by the husband of the petitioner, Ms. Manashi Bordoloi. But, the person, who issued the cheque is not an accused in the complaint before the learned court below.

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It has been submitted by the learned counsel for the petitioner that the petitioner and her husband are the persons managing their firm. There is no such material placed in the record to indicate that they are the joint partners of a particular firm. On the other hand, learned counsel for the petitioner has submitted that the account from which the amount was supposed to be withdrawn, belonged to both the petitioner and her husband.

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But, the issue before this court is not that. The issue before this court is whether a person who did not issue the cheque can be prosecuted under Section 138 NI Act. But, in the instant case, admittedly the present petitioner is the wife and the person who issued the cheque. Therefore, there is no reason for the complainant to make her an accused in this case and taking cognizance of offence under Section 138 NI Act against her is also palpably illegal and incorrect. This is completely against the mandate of Section 138 of the NI Act. That being so, the order taking cognizance, referred to above, is quashed being illegal and incorrect.

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The petition stands disposed of at this motion stage itself.

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JUDGE

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Comparing Assistant

Mrs. Manashi Bordoloi v. Magnum Enterprise

Case brief

What is this about?

What did the court decide?

Mrs. Manashi Bordoloi v. Magnum Enterprise

Case brief

What is this about?

What did the court decide?

What the court decided

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