Allowed

Nizame Uddin Barbhuiya and 2 Ors. v. Debasish Dutta and Anr.

Gauhati HC8 May 2025Crl.Pet./36/2017

Case brief

AI extract

What is this about?

Criminal petition filed to quash charges under Section 420 IPC pending alongside Section 138 NI Act proceedings. Court held subsequent prosecution under IPC is permissible per SC precedent but found no prima facie case of cheating. Petition allowed; IPC charges quashed; trial to continue on NI Act only.

What did the court decide?

Petition allowed. Charge sheet under Section 420 IPC quashed. Proceed with Section 138 NI Act trial.

Nizame Uddin Barbhuiya and 2 Ors. Vs Debasish Dutta and Anr. — Cheque Dishonour | Gauhati HC (2025)

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GAHC010010222017

2025:GAU-AS:5815

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./36/2017

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NIZAME UDDIN BARBHUIYA and 2 ORS. S/O NURUL ISLAM BARBHUIYA

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2: SHAIN UDDIN BARBHUIYA S/O NURUL ISLAM BARBHUIYA

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3: NURUL ISLAM BARBHUIYA

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LT. FAYZUR RAHMAN BARBHUIYA ALL ARE RESIDENT OF CHERAGI KATIGORAH

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PART-III P.S. KATIGORAH DIST. CACHAR ASSAM

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VERSUS

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DEBASISH DUTTA and ANR.

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S/O SRI NIKHIL RANJAN DUTTA R/O KALAIN P.O. and P.S. KATIGORAH DIST. CACHAR, ASSAM PIN - 788805.

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2:THE STATE OF ASSA

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Advocate for the Petitioner : MR.P P DUTTA, MR.A BHATTACHARJEE,MR.A BARUA Advocate for the Respondent : PP, ASSAM, MR. A K BHUYAN (AMICUS CURIAE),MR. D CHAKRABARTY(R-1),MS. S HAZARIKA(R-1)

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BEFORE

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THE HON ’ BLE MR JUSTICE ARUN DEV CHOUDHURY

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For the Petitioners : Mr. P. P. Dutta, Advocate.

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For the Respondents : Mr. K. K. Das, Adll. PP. Mr. A. K. Bhuyan, Amicus Curiae

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Mr. D. Chakraborty, Advocate (R-1)

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Date of Hearing : 01.04.2025

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Date of Judgment & Order : 09.05.2025

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JUDGMENT & ORDER(CAV)

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Heard Mr. P. P. Dutta, learned counsel for the petitioners. Also heard Mr. K. K. Das, learned Additional Public Prosecutor, Assam representing the State respondent, Mr. D. Chakraborty, learned counsel for the respondent No. 1 and Mr. A. K. Bhuyan, learned Amicus Curiae.

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The present petition under Section 482 of the Code of Criminal Procedure read with Section 401/397 Cr.P.C. is filed assailing an order dated 29.05.2015 passed in Criminal Revision No. 176/2014 by the learned Additional Session Judge, Cachar, Silchar allowing the revision petition, by setting aside the order dated 09.06.2014 passed by the learned Additional Chief Judicial Magistrate, Cachar Silchar in N.I.Case No. 55/2015, (CR Case No. 55/2012), by which the present petitioners were discharged under Section 420 of the IPC. The further challenge is the order dated 20.10.2016 passed in the said NI Case No.55/2015, whereby, on remand, the learned Additional Chief Judicial Magistrate, Cachar Silchar, framed charges under Section 420/34 of IPC against the present petitioners.

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The brief facts leading to the filing of this present case in nutshell is to the following effect:

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I. The respondent No.1 herein filed a complaint before the Court of the learned Chief Judicial Magistrate, Cachar, Silchar, alleging commission of an offence under Section 138 of N.I. Act and under Section 420 IPC. The complaint was registered as N.I. Case No. 55 of 2012, under section 138

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N.I. Act, 1881 and Section 420/34 of the Indian Penal Code and was transferred to the learned Additional Chief Judicial Magistrate, Cachar, for disposal.

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II. On 9/7/2012, cognizance of offence under Section 138 Negotiable Instruments Act, 1881 was taken against accused/Petitioner No.1, and cognizance of offence u/s 420 IPC was taken against all the accused person.

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III. Thereafter, by an order dated 9/6/2014 passed in N.I. Case No. 55/2012, the learned Trial Court (Addl. Chief Judicial Magistrate, Cachar) discharged the Accused/petitioners No. 2 & 3 from the offence u/s 420/34 IPC and proceeded against the accused/petitioner No.1 u/s 138 NI Act.

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IV. Against the order dated 9/6/2014, the Complainant/Opposite party No.1 preferred a Revision petitioner registered as Crl. Revision No. 176/14 before the Session Judge, Cachar. By the impugned order dated 29/5/2015 passed in Crl. Revision No. 176/14, learned Additional Session Judge, Cachar allowed the revision by setting aside the order dated 9/6/2014 passed in N.I. Case No. 55/2012 (Annexure-3) and directed the learned trial court to consider the matter afresh, after considering all the evidence adduced by the complainant and after giving an opportunity of hearing to both the parties and to proceed with the case.

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V. Thereafter, the learned Addl. Chief Judicial Magistrate, Cachar, by the impugned order dated 20/10/2016, passed in N.I. Case No. 55/2012 framed charges under Section 420 IPC against all 3 accused persons i.e. petitioner herein, and charge u/s 138 N.I. Act was framed separately against accused/petitioner No.1 Nizame Uddin Barbhuiya. Challenging both the orders i.e. order dated 29/5/2015 passed in Crl. Revision No. 176/14,

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learned Additional Session Judge, Cachar and order dated 20/10/2016 passed in N.I. Case No. 55 of 2012, the present petition is filed before this Court.

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The learned counsel for the petitioner fundamentally argues the following:

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I. Both the offences under Section 420 IPC and Section 138 of N.I. Act, 1881 are distinct and different offence, and same cannot be tried in the same trial. It is his contention that both are different in the procedure required to be followed for conducting the prosecution; standard of proof are also different, including the requirement of mens rea. In support of such contention, the learned counsel places reliance on the ratio laid down by a coordinate bench in Manik Chandra Hazarika vs Bibhison Pegu & another reported in 2012 (5) GLR 623 and by Ho’ble Apex Court in Sangeetaben Mahendrabhai Patel vs State of Gujarat and another reported in (2012)7 SCC 621.

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II. On merit, the learned counsel for the petitioners argues that a bare perusal of the complaint as well as other material available in the record, no prima facie case under section 420 IPC is made out. There is no ingredient of Section 420 IPC in the complaint warranting framing charge against the petitioners.

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Per contra, learned counsel for the respondent argues the following:

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I. The provision of section 220 of the Code of Criminal Procedure, 1973 dealing with "trial of more than one offence" and subsection (1) of the said section provides that if, in one series of acts so connected to form the same transaction, more offences than one is committed by the same person, he may be charged with, and tried at one trial for, every such offence and therefore, there is no bar of a common trial under section 420

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IPC and 138 NI Act.

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II. The "offence", as defined under section 2(n) of the Code of Criminal Procedure, 1973 means "any act or omission punishable by any law for the time being in force and therefore, charges framed under both laws in the same proceeding is legally tenable and as such, the Criminal Petition lacks merit and is liable to be dismissed.

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III. Specific statements are made as regards ingredients of Section 420 of IPC in the complaint, and therefore, the learned Magistrate had rightly taken cognizance of the offences under Section 420 IPC.

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From the argument advanced, it is seen that the basic ground of challenge is that the prosecution under Section 420 IPC, as well as prosecution under Section 138 N.I. Act, cannot be proceeded together and no prima facie case under Section 420 IPC was made out.

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By now law is well settled that Section 420 IPC (cheating) and Section 138 NI Act (dishonour of cheque) are distinct offences even if, both arise from the same set of facts.

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In case of prosecution for offences under Section 420 IPC, mens rea is to be established, whereas, in case of an offence under Section 138 of the N.I. Act, no such intention is required to be proved. Similarly, initial deception and fraudulent or dishonest intention is a sine qua non in a case under Section 420 IPC, whereas no such intentions are required in a case under Section 138 of N.I Act.

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So far, relating to the procedure and requirement of proof, the onus of proof in an offence under Section 420 IPC, is upon the complainant and the standard of proof is “beyond reasonable doubt”, whereas in a case under Section 138 of the N.I. Act, more particularly, in terms of Section 139 of the N. I. Act, 1881, there is

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a presumption against the drawer of the cheque, though rebuttable, to the effect that the cheque has been issued in discharge legally enforceable debt.

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So far relating to the procedure of trial, when it is a trial for an offence under Section 420 IPC, same is warrant procedure and when such prosecution is launched, otherwise then a police report, the charge can be framed based on the evidence lead by the complainant in terms of Section 244 Cr.P.C. by following the procedure prescribed under Section 245 and 246 Cr.P.C.

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In Manik Chandra Hazarika , (Supra), a Co-ordinate Bench has rightly held that unless the presumption that the accused had committed the offence under Section 420 IPC and that such accused could be adequately punished as prescribed under Section 246 of the Cr.P.C. is satisfied, the trial Court cannot frame charge against accused person. On the other hand, the prosecution of an offence under Section 138 N. I. Act, 1881 is to be conducted by following the summons procedure, where the offence is required to be explained.

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Above that, under Section 145 of the N.I. Act, 1881, a special procedure of filing of evidence on affidavit is prescribed, which is absent in case of a prosecution of an offence under Section 420 IPC.

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Thus, it is clear that not only both the offences in question are distinct and separate, but the statutory prescription as regards the procedure of conducting a trial, in respect of the aforesaid two offences, is also distinct and separate. It is also clear that the standard of proof and burden of proof are also different so far as they relate to both the offences in question.

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Therefore, in the backdrop of aforesaid proposition and position, in the considered opinion of the Court, conduct of a prosecution/trial of both the offences in the same complaint may create difficulties for a trial Court.

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However, to arrive at a conclusion in this regard, this Court is to take note of two judgments of the Hon’ble Apex Court. It is important to note that in G. Sagar Suri and Anr. –Vs- State of UP and Ors., reported in 2000 2 SCC 636, a subsequent complaint filed under Section 406/420 IPC was quashed, primarily on the ground that the earlier complaint filed under Section 138 of NI Act, is silent as regards any ingredients of Section 406/420 IPC, when both the complaints are based on the same facts and therefore, it is an abuse of process. It was further held that when a criminal complaint under Section 138 of N.I. Act is already pending, and in the event same is proved, the accused would suffer consequences, and therefore, in that case, there is no occasion for the complainant to prosecute the appellants under Section 406/420 IPC on same set of facts. Such view was reaffirmed in Kolla Veera Raghav Rao –Vs- Gorantla Venkateswara Rao and Anr., reported in 2011 2 SCC 703 and it was held that no person shall be prosecuted and punished for the same offence more than once and in terms of Section 300(1) of the Cr.P.C., no one can be tried and convicted for the same offence or even for a different offence but on the same facts. In the said case, the offences alleged were under Section 138 of N.I. Act, and Section 420 IPC. It was further held that although the offences are different but the facts are same, and therefore, in such a case the provision of Section 300(1) of Cr.P.C. applies and consequently, prosecution under Section 420 IPC was held barred by Section 300(1) of Cr.P.C.

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After elaborately dealing with the ratio laid down in G. Sagar Suri (supra) and Kolla Veera Raghav Rao (supra) and also taking note of difference in trial and ingredients of offences under Section 138 of NI Act, and under Section 406/420 IPC, in Sangeetaben Mahendrabhai Patel -Vs- State of Gujarat and Anr . reported in 2012 7 SCC 621, the Hon’ble Apex Court held that though there may be some overlapping facts in both the cases, however, the ingredients of offences under section 138 of the NI Act and under Sections 406/420 ae entirely

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different and therefore, a subsequent case under Section 406/420 IPC is not barred by any of the statutory prescription.

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To summarise, in the case of Kolla Veera Raghav Rao (supra), two separate prosecutions under Section 138 of N.I. Act and Section 406/420 IPC on the same set of allegations were filed, and it was held that on the same set of allegations, two different offences i.e. under N.I. Act and under the IPC cannot be proceeded with, and proceeding under Section 406/420 IPC is liable to be quashed.

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In G. Sagar Suri (supra), it was observed that no one can be tried and convicted for the same offence or even for a different offence on the same facts and therefore, prosecution under Section 420 IPC is barred by Section 300(1) Cr.P.C.

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In Sangeetaben Mahendrabhai Patel (supra) it was held that a requirement to prove an offence under N.I. Act and offence under IPC, though is different and therefore, even if there are overlapping facts, the subsequent case is not barred by any statutory provision.

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Taking note that the judgments rendered In Sangeetaben Mahendrabhai Patel (supra) and in another judgement in M/s V.S. Reddy and Sons -VsMuthyala Ramalina Reddy and Anr. (Clr. Appeal No. 1285/2015) Decided on 28.09.2015 by Benches having the strength of two Judges, took a different view from the previous judgment in G.Sagar Suri (supra) and in Kolla Veera Raghav Rao (supra) rendered by the Bench of the same strength, the Hon’ble Apex Court in J. Vedhasingh -Vs- R. M. Govindan & Ors. reported in 2022 SCC Online SC 1010 , referred the matter for decision by a larger Bench to answer which one of the aforesaid two ratios is correct proposition of law. It is stated at the bar that the larger Bench has not yet answered the reference.

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It is important to note that the reference to a larger bench in question is to have

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an authoritative pronouncement, given the conflicting decision and such reference, in the considered opinion of this Court, is a procedural mechanism to ensure that law is applied consistently and correctly. Such reference is an opinion and not a ratio. Therefore, as at present, though correctness of the judgments are peding decision in the reference, the judgements passed at the later point of time in Sangeetaben Mahendrabhai Patel (supra) shall be binding upon this Court, till the reference is answered inasmuch as in Sangeetaben Mahendrabhai Patel (supra) both the earlier judgments in G. Sagar Suri (supra) and in Kolla Veera Raghav Rao (supra), were duly taken note of.

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As recorded herein above, in Sangeetaben Mahendrabhai Patel (supra), it was held that the requirement to prove an offence under N. I. Act and IPC are though different, and even if, there is overlapping facts, two prosecutions can be launched. In the considered opinion of this Court, given such determination, prosecution of offences under Section 138 of N. I. Act, and under Section 420 IPC shall not be barred, even recognizing the differences. Therefore, the contentions raised by the learned counsel for the petitioner in this regard stand negated.

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Now coming to the merit of the case, a bare reading and perusal of the materials available on record, including the complaint petition and the statements recorded, leaves no room for doubt that no prima facie case under Section 420 IPC is made out.

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Section 415 IPC defines the term ‘cheating’ and brings under its fold an act that is done by fraudulent or with dishonest intentions. The reading of the aforesaid provision shall clarify that there must be an inducement to deceive and to deliver any property to any person, or to consent that any person shall retain any property, causing damage or harm to that person. Therefore, the dishonest or fraudulent intention on the part of the accused there must be prima facie

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material as regards dishonest or fraudulent inducement to deliver property. Thus, what is required is deception of a person, fraudulent or dishonest inducement leading to delivery of any property to any person and dishonest intention of the accused at the time of making such inducement, there must be initial inducement. Thus, the dishonest intention must be there from the inception when the promise and representations were made.

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It is equally well settled that every deceitful act is not unlawful inasmuch as, every unlawful act is not deceitful. Those acts, which can be termed as unlawful and at the same deceitful, shall come within the purview of section 420 IPC. It is equally well settled proposition of law that a statement of fact is deemed deceitful when it is false, and is knowingly or recklessly made with the intent that it shall be acted upon by another person, resulting in damage or loss. Cheating generally involves a preceding deceitful act that dishonestly induces a person to deliver any property or part of a valuable security, prompting the induced person to undertake the said act, which he would not have done but for the inducement.

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From the complaint, it is seen that so far relating to the ingredients of Section 420 IPC, a statement is made that all accused have not only requested the complainant like anything for the money, but also emotionally blackmailed him by saying that a friend in need is a friend indeed and being deceived to believe that the accused would definitely repay the amount, whom he is helping. When the complainant demanded the money, the accused killed several months, on the plea that their money was blocked with others, and subsequently, the cheque was issued. When the cheque was dishonoured for insufficient funds, only then, the complainant could realise the dishonest intention of the accused and further that the inducement by the accused was in order to cheat the complainant and there was a false promise to repay the money.

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In the considered opinion of this court, the aforesaid statement and all the

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other statements, if are accepted to be correct, do not even remotely suggest any initial deception in the mind of the accused person, or any dishonest or fraudulent inducement for delivery of the amount in question. The statement of the accused under Section 200 of Cr.P.C., also does not disclose any such offence as regards deceiving the informant by the accused. What is discernible, in the considered opinion of this court, is payment of money on the request of all the accused petitioners, and while such money was returned by the accused No.1 by way of the cheque in question, the same was dishonoured for insufficiency of funds.

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In view of the determination hereinabove, this Court is of the unhesitant view that no case under Section 420 IPC is made out against the accused persons. Accordingly, the same stands quashed.

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The accused No.1 and the Complainant shall appear before the learned trial Court on 30.05.2025, and on their appearance, the learned trial Court shall proceed with the complaint under Section 138 of N. I. Act, 1881 (CR Case No. 55/2012). As the original complaint is of the year 2012, this Court shall expect that the parties shall not unnecessarily delay the proceeding inasmuch as this Court shall also expect that the learned trial Court shall complete the trial within a reasonable period of time from the date of appearance of the parties as directed hereinabove.

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With the aforesaid, the present criminal petition stands disposed of.

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TCR be returned.

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JUDGE

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Comparing Assistant

Nizame Uddin Barbhuiya and 2 Ors. v. Debasish Dutta and Anr.

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Nizame Uddin Barbhuiya and 2 Ors. v. Debasish Dutta and Anr.

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