Anindita Dutta and Anr. Vs Hamanta Das

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GAHC010001642022

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2025:GAU-AS:7561

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

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Case No. : Crl.Pet./10/2022

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ANINDITA DUTTA AND ANR D/O SRI PRADIP KR. DUTTA R/O DR JAKIR HUSSAIN PATH, HOUSE NO. 60, SARUMOTORIA, DISPUR, GUWAHATI, PIN-781006, AT PRESENT RESIDENT OF GURGAON, DELHI, PIN-110017

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2: SMTI. RANUMONI DUTTA W/O SRI PRADIP KR. DUTTA R/O DR JAKIR HUSSAIN PATH HOUSE NO. 60 SARUMOTORIA DISPUR GUWAHATI PIN-781006 AT PRESENT RESIDENT OF GURGAON DELHI PIN-11001

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VERSUS

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HAMANTA DAS SON OF SRI MADAN CHANDRA DAS, R/O DHARAPUR CHARIALI, NEAR NATUN BASTI, P.O. DHARAPUR P.S. AZARA, DIST. KAMRUP (M), GUWAHATI-781033, STATE- ASSAM

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Advocate for the Petitioner : MR C BARUAH, MR. B BARUAH,MR S HUSSAIN

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Advocate for the Respondent : MS. R DEVI, MR. D BANIA,MR. S C BISWAS,MR. P S BISWAS

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:: BEFORE ::

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HON’BLE MR. JUSTICE PARTHIVJYOTI SAIKIA

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O R D E R

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11.06.2025

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Heard Mr. B. Boruah, the learned counsel appearing for the petitioners. Also heard Mr. P.S. Biswas, the learned counsel appearing for the sole respondent.

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2. This is an application under Section 482 of the CrPC praying for quashing the complaint case being C.R. Case No.5121/2019 pending in the court of Judicial Magistrate Fist Class-cum- Munsiff No.3, Kamrup(M), Guwahati. 3.

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3. The petitioners Ms. Anindita Dutta, her mother Smti. Ranumoni Dutta and her father Prodip Kumar Dutta are joint account holders of a Bank account.

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4. Prodip Kumar Dutta had taken a loan of ₹5,000,00/- (Rupees Five Lakh) from the respondent Hamanta Das. The money was taken for helping the son of Prodip Kumar Dutta who was pursuing his education abroad. The money was to be returned within a fixed period of time. Thereafter, Ranumoni Dutta and her husband Prodip Kumar Dutta had jointly issued a cheque of ₹5,000,00/- to the respondent Hamanta Das. The cheque was dishonoured by the Bank. Therefore, under the provisions of Section 138 of the N.I. Act, a Notice was issued to all the three account holders. Thereafter, a complaint case was filed against all of them.

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5. The petitioner Anindita Dutta has submitted that though she is a joint account holder along with her parents, she never issued any cheque to the sole respondent and therefore she is not liable to pay any money to the sole respondent.

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6. In order to buttress his point, Mr. Baruah has relied upon a judgment of the Supreme Court that delivered in Aparna A. Shah v. Sheth Developers (P) Ltd., (2013) 8 SCC 71 . Paragraphs 27 and 28 of the said judgment are quoted as under:

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“ 27. In the light of the above discussion, we hold that under Section 138 of the Act, it is only the drawer of the cheque who can be prosecuted. In the case on hand, admittedly, the appellant is not a drawer of the cheque and she has not signed the same. A copy of the cheque was brought to our notice, though it contains the name of the appellant and her husband, the fact remains that her husband alone had put his signature. In addition to the same, a bare reading of the complaint as also the affidavit of examination-in-chief of the complainant and a bare look at the cheque would show that the appellant has not signed the cheque.

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28. We also hold that under Section 138 of the NI Act, in case of issuance of cheque from joint accounts, a joint account-holder cannot be prosecuted unless the cheque has been signed by each and every person who is a joint account-holder. The said principle is an exception to Section 141 of the NI Act which would have no application in the case on hand. The proceedings filed under Section 138 cannot be used as armtwisting tactics to recover the amount allegedly due from the appellant. It cannot be said that the complainant has no remedy against the appellant but certainly not under Section 138. The culpability attached to the dishonour of a cheque can, in no case “except in case of Section 141 of the NI Act” be extended to those on whose behalf the cheque is issued. This Court reiterates that it is only the drawer of the cheque who can be made an accused in any proceeding under Section 138 of the Act. Even the High Court has specifically recorded the stand of the appellant that she was not the signatory of the cheque but rejected the contention that the amount was not due and payable by her solely on the ground that the trial is in progress. It is to be noted that only after issuance of process, a person can approach the High Court seeking quashing of the same on various grounds available to him. Accordingly, the High Court was clearly wrong in holding that the prayer of the appellant cannot even be considered. Further, the High Court itself has directed the Magistrate to carry out the process of admission/denial of documents. In such circumstances, it cannot be concluded that the trial is in advanced stage.”

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7. I have given my anxious considerations to the submissions made by the learned counsel of both sides.

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8. In case of issue of cheque from a joint account, a joint account holder cannot be prosecuted unless the cheque has been signed by each of the joint account holders. In the case in hand, Ms. Anindita Dutta did not put her signature in the cheque like her mother Ranumoni Dutta and her father Prodip Kumar Dutta. Therefore, Anindita Dutta is not liable to face the trial under the provisions of Section 138 of the N.I. Act. This principle is an exception to Section 141 of the N.I. Act, which does not have any application in this case.

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9. For the aforesaid reason, the criminal petition is partly allowed. The petitioner

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Ms. Anindita Dutta is discharged from the complaint case being C.R. Case No.5121/2019 pending in the court of Judicial Magistrate Fist Class-cum- Munsiff No.3, Kamrup(M), Guwahati. 3.

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10. For the petitioner Ranumoni Dutta, the criminal petition is found to be devoid of merit and stands dismissed accordingly.

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11. With the aforesaid directions the present criminal petition is disposed of.

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The interim order passed earlier stands vacated.

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JUDGE

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Comparing Assistant

Anindita Dutta and Anr. v. Hamanta Das

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