Gauhati High Court
Sri Dhiraj Sarma vs Sri Kakil Namasudra on 29 April, 2026
Page No.# 1/11
GAHC010239092018
2026:GAU-AS:5925
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./84/2019
SRI DHIRAJ SARMA
S/O-LATE PADMA CHANDRA SARMA,
JATIA KAHILIPARA ROAD,
SUNDARBAN PATH, BYE LANE NO. 5, P.S.- DISPUR, GUWAHATI-6. DIST-
KAMRUP(M).
VERSUS
SRI KAKIL NAMASUDRA
S/O- LATE ADHIR NAMASUDRA,
PANIKHATI, RAILGATE, IN FRONT OF KALI MANDIR, P.O- PANIKHAITI,
P.S.- CHANDRAPUR, DIST- KAMRUP(M), ASSAM, PIN- 781004.
Advocate for the Petitioner : MR H K SARMA,
Advocate for the Respondent : MR R DAS, MR. S ROY,MR R DAS
BEFORE
HON’BLE MRS. JUSTICE MITALI THAKURIA
Advocates for the Appellant : Mr. H. K. Sarma.
Advocates for the Respondent : Mr. R. Das.
Date on which judgment is reserved : 19-03-2026
Date of pronouncement of judgment : 29-04-2026
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Whether the Pronouncement is of the
operative part of the judgment? : ___N/A_____
Whether the full judgment has been
pronounced? : ___Yes_____
JUDGMENT & ORDER (CAV)
Heard Mr. H. K. Sarma, learned counsel for the appellant and Mr. R. Das,
learned counsel for the respondent.
2. This appeal has been filed under Section 378 CrPC against the final
judgment and order dated 26.07.2018, passed by the learned JMFC, Kamrup
(M), Guwahati in C.R. Case No.2036(c)/2017 under Sections 138/142 of N.I. Act
whereby the accused/respondent was acquitted on the benefit of doubt.
3. It is the case of the appellant/complainant that the accused/respondent
while discharging lawful liability issued a cheque of Rs.6,00,000/- in favour of
the complainant/appellant on 05.04.2017 which was drawn with SBI Narengi
Branch.
4. Later on he deposited the cheque in the account maintained with
Industrial Cooperative Bank Ltd., Guwahati Branch but the said cheque was
dishonoured vide its return memo dated 25.05.2017 on the ground of
“insufficient fund”.
5. Thereafter, the appellant/complainant through his engaged counsel had
issued a demand notice on 30.05.2017 against the accused/respondent
demanding Rs.6,00,000/- within a period of 15 (fifteen) days from the issuance
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of the notice.
6. On enquiry made by the appellant, he also came to know that the notice
was received by the respondent on 21.06.2017, but he failed to give any reply
and for which, the appellant as a complainant had instituted a complaint under
Section 138/142 of the N.I. Act.
7. After recording evidences etc., the learned Trial Court had passed the
order and while passing the judgment, 3 (three) issues have been framed by
the learned Trial Court which are as follows:
(a) Whether the cheque was issued for the discharge of any legally
enforceable debt or liability?
(b) Whether the cheque was dishonoured for the reason “insufficient
funds” and
(c) Whether the accused/respondent received the demand notice
issued by the complainant/appellant regarding dishonour of cheque?
8. After hearing the arguments, the learned Trial Court while passing the
judgment had decided the issue No.(a) and (c) against the
complainant/appellant, however, the issue No.(b) was decided in favour of the
appellant and thereby acquitted the accused/respondent with the observation
that the complainant could not prove the case and on the ground of benefit of
doubt, the accused/appellant got the order of acquittal.
9. Mr. Sarma, learned counsel for the appellant submitted that the learned
Trial Court had failed to appreciate the evidence on record and also failed to
appreciate the facts about the existence of liability in favour of the
complainant/appellant.
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10. He further submitted that there is no dispute in regards to the signature
put by the accused/respondent in the cheque in question and the cheque dated
05.04.2017, but inadvertently the demand notice which was issued to the
respondent, the date was mentioned as 05.04.2014 which is an inadvertent
mistake on the part of the appellant. The accused at the time of recording his
evidence also admitted the signature in the cheque in question and he never
denied about the signature.
11. In the demand notice, i.e., Ext.C, they demand Rs.6,00,000/- which was
issued on 30.05.2017 but there was a simple typographical mistake in the
demand notice as stated above, which is also clarified by the
appellant/complainant. Further it is an admitted fact that the cheque number
was not mentioned in the demand notice which is not so material as there was
a demand of Rs.6,00,000/- which was issued by the respondent/accused.
12. Mr. Sarma, learned counsel further submitted that after coming to know
about the defect or inadvertent mistake in the demand notice issued on
30.05.2017 the clarification is also made in the complaint in para-3 wherein it is
specifically stated that due to bonafide mistake, the engaged counsel for the
appellant had mentioned the date of cheque as 05.04.2014 instead of the actual
date, i.e., 05.04.2017. But inspite of such clarification, the learned Trial Court did
not consider the fact that the cheque in question dated 05.04.2017 was issued
by the respondent/accused in discharge of his legally enforceable debt.
13. He further submitted that though it is claimed that there was wrong
mention of date of cheque in the demand notice, but the accused/respondent
could not substantiate their plea that another cheque was issued on 05.04.2014
by adducing any documentary or oral evidence.
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14. Mr. Sarma, learned counsel further submitted that so far the lawful liability
is concerned; the accused had admitted his business transactions with the
complainant for 6-7 years and they also admitted the receipt of the demand
notice sent by the complainant/appellant before the initiation of the complaint
petition and admitting the receipt of demand notice, he even exhibited the same
as Ext.3 at the time of trial.
15. Mr. Sarma, learned counsel accordingly prayed for remand of the matter
for fresh disposal considering all this aspect by the learned Trial Court.
16. Mr. Sarma, learned counsel relied on a decision of the Hon’ble Supreme
Court in the case of Kalamani Tex and another Vs. P. Balasubramanian
reported in (2021) 5 SCC 283 and submitted that presumption as to legally
enforceable debt available against the accused even in case when he voluntarily
signed and handed over a blank cheque leaf towards some payment and it is
the duty of the Court to presume that the cheque was issued as consideration
for a legally enforceable debt.
17. He further submitted that as per the N.I. Act Section 139 make is amply
clear that a person who signs a cheque and makes it over to the payee remains
liable unless he adduces evidence to rebut the presumption that the cheque
had been issued for payment of debt or in discharge of a liability.
18. In that context also he relied on a decision of the Hon’ble Supreme Court
in the case of Bir Singh Vs. Mukesh Kumar reported in (2019) 4 SCC 197.
19. Citing the above referred judgment, learned counsel, Mr. Sarma submitted
that the judgment passed by the learned Trial Court is liable to be set aside and
quashed and the matter may be remanded back for fresh disposal with a
direction to pass the judgment and order by considering all facts of the case.
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20. Mr. Das, learned counsel submitted that the learned Trial Court had passed
the order after scrutinizing the evidences as well as the documents exhibited by
both the parties and hence, there is no need of any interference in the
judgment and order passed by the learned Trial Court, whereby the respondent
got the order of acquittal.
21. He further submitted that 3/4 numbers of blank cheques were taken by
the complainant and he took only Rs.1,00,000/- from the complainant/appellant
which has already been returned by him and to that regard, the respondent also
exhibited Exts. 1 and 2 the bank statement to prove that the money which has
been taken by the present respondent had already been returned and there is
no existing debt or liability for payment of any cheque amount.
22. Mr. Das, learned counsel further submitted that the Exhibit-C which is a
demand notice wherein the date of the cheque was mentioned as 05.04.2014
instead of correct date of 05.04.2017 and without making any correction the
said demand notice was produced before the Court and it was corrected at the
time of trial and exhibited as Ext. C. There is no prior information to the Court
or the respondent before correction of the said demand notice wherein the
appellant demanded Rs.6,00,000/- to be the cheque amount dated 05.04.2014.
Thus, the demand notice which was issued by the complainant/appellant was
for the cheque dated 05.04.2014 and not for 05.04.2017 as claimed by the
appellant/respondent.
23. It is admitted by the respondent that Rs.1,00,000/- was taken as loan
from the complainant, which has already been returned back and as stated
above, they have also exhibited Exts. 1 and 2 to substantiate their plea. Further,
the respondent also exhibited the original demand notice which was issued to
him for the cheque dated 05.04.2014. But as there is no existing liability for any
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cheque dated 05.04.2014, the respondent did not find any reason to make any
reply to the said demand notice. However, the respondent admitted the
signature in the cheque in question as they had already issued 3/4 numbers
blank cheques in favour of the complainant and without any existing liability to
the cheque dated 05.04.2014, the demand notice was issued to the present
respondent.
24. Mr. Das, learned counsel further submitted that the learned Trial Court
while discussing the point No. ‘C’ i.e., whether the accused received the demand
notice issued by the complainant regarding the dishonour of cheque has
discussed that the demand notice which was issued to the present petitioner did
not bear any cheque number whereby Rs.6,00,000/- was demanded and that
apart the cheque date was also mentioned as 05.04.2014 wherein there was no
existing liability for the present respondent and accordingly he submitted that
the learned Trial Court had rightly decided the point No.’C’ in negative against
the complainant/appellant.
25. He further submitted that second or subsequent notice within the period
of limitation is permissible so long it satisfy the requirement of proviso to
Section 138 of the N.I. Act. To substantiate his plea, Mr. Das relied on the
decision of the MSR Leathers Vs. S. Palaniappan and Anr., reported in
2013 Legal Eagle SC 690.
26. Mr. Das, learned counsel also relied on a decision of the Punjab and
Haryana High Court passed in the case of Chhabra Fabrics Private Limited
Vs. Bhagwan Dass, proprietor of Dhibgra in Crl. A. No. 1772-SB/2002
wherein also it is held by the Court that there might be typographical error in
the legal notice while typing out the cheque number, but such typographical
error if any does not meet the compliance of mandatory provision of Section
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138 of N.I. Act and the only course left for the complainant was to give a fresh
legal notice to the accused. Accordingly, Mr. Das submitted that even if there
was any typographical error, the complainant/appellant did not furnish any
subsequent or the second legal notice afresh with correct mentioning of cheque
number and date if any legal debt or liability was there to meet the requirement
under Section 138 of N.I. Act.
27. Mr. Das, learned counsel accordingly submitted that the learned Trial Court
had rightly passed the order of acquittal and hence, there is no need of any
interference by this Court at this stage.
28. Heard the submissions made by the learned counsel for both the parties
and I have also perused the record and the judgment passed by the learned
Trial Court.
29. It is seen that there is no dispute in regards to the cheque issued by the
respondent and signature available in the cheque is also not disputed by the
respondent. But the case of the respondent is that he had taken a loan of
Rs.1,00,000/- which has already been repaid by him and to substantiate the
fact, he exhibited the bank statement and the money receipt as Ext. 1 and 2 at
the time of adducing evidence stating that 3/4 blank cheques were issued by
him and there is no existing debt or liability for any subsequent cheque or
amount which has been claimed by the present appellant.
30. On the other hand, it is the case of the appellant that the cheque amount
of Rs.6,00,000/- was issued in favour of the appellant, which was accordingly
dishonoured due to insufficiency of fund and after the dishonour of cheque,
demand notice was accordingly issued wherein Rs.6,00,000/- was demanded
and the same was duly received by the respondent.
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31. Now the signature in the cheque in question as well as receipt of demand
notice from the appellant is not disputed. But the only issue raised in this case is
that while issuing the demand notice, the cheque number was not mentioned
and demand was made for cheque dated 05.04.2014 wherein there was no
existing liability. However, it is the case of the appellant that coming to know
about the inadvertent typographical mistake they have corrected the demand
notice at the time of filing the case, but that was not considered by the learned
Trial Court.
32. There may be typographical error while typing the date of the cheque as
05.04.2014 instead of 05.04.2017, but it could have been corrected or could
have been taken into consideration if the proper cheque number would have
mentioned in the demand notice whereby Rs.6,00,000/- was demanded by the
appellant.
33. Thus, it is seen that though an amount of Rs.6,00,000/- was demanded
through the demand notice, but the demand notice could not considered as
there was no mention of cheque number which is the most essential part of the
demand notice and at the same time the date of the cheque is also mentioned
as 05.04.2014 instead of correct date of cheque i.e., 05.04.2017. Thus, in that
aspect it cannot be considered as a proper legal demand notice for the cheque
amount of Rs.6,00,000/- dated 05.04.2017. It is also the case of the appellant
that they have come to know about their typographical mistake, but without
making any correction the case has already been instituted and also did not
take any course for filing a fresh demand notice to the respondent demanding
the cheque amount dated 05.04.2017. So for non-mentioning of any cheque
number as well as incorrect date of cheque mentioned in the demand notice it
cannot be considered as a legal demand notice as required under Section 138 of
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N.I. Act which clearly states in proviso (b) that the holder of cheque should
make a demand for payment of an amount to the drawer of the cheque and it is
an admitted fact that the demand notice which was sent, did not bear the
cheque number and the date of the cheque is also incorrect to understand the
exact transaction against which such demand is made.
34. It is settled position of law that an accused has to rebut the presumption
under Section 139 of the Act and his standard of proof for doing so is that of
preponderance of probabilities. It is not a case that the accused had to adduce
evidence in his favour, but accused can also rely the materials submitted by the
complainant in order to raise such defence under Section 139 of the Act.
35. But here in the instant case, it is also seen that the accused/respondent
not only relied on the materials submitted by the complainant but they also
adduced evidence and exhibited the documents to substantiate their plea of
defence and at the same time the demand notice which was received by him is
also exhibited as Ext. 3 with incorrect date of cheque without any cheque
number. Except the demand of Rs.6,00,000/- there is no mention about the
cheque number and the date of cheque incorrectly mentioned. Thus, the
demand notice does not fulfill the ingredients of proviso (b) of Section 138 of
the Act.
36. In the case of Suman Sethi Vs. Ajay K. Churiwal reported in (2000)
Crl. 1391 (SC) as relied by the learned Trial Court, the Hon’ble Apex Court have
held that it is settled principle of law that notice has to be read as a whole. In
the notice of demand, there has to be a cheque number and if no such demand
is made, the notice would fall short of legal requirement.
37. Thus it is seen that there cannot be any reason for remand of the case for
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fresh disposal as there is no scope for any correction of the demand notice at
this stage, which has already been issued by the appellant demanding
Rs.6,00,000/- for a cheque amount which was claimed to be issued in favour of
the appellant during the course of business transactions.
38. In view of above, this Court is of the opinion that there is no reason for
making any interference in the judgment and order dated 26.07.2018, passed
by the learned JMFC, Kamrup (M), Guwahati in C.R. Case No.2036/2017
acquitting the respondent.
39. Accordingly, this criminal appeal stands dismissed.
40. Send back the Trial Court Record forthwith.
JUDGE
Comparing Assistant
Digitally signed by
Rupam Das Rupam Das
Date: 2026.04.29
17:34:11 +05'30'
