Gauhati High Court
Dr Bhaben Gogoi vs Helse Medical Science Pvt. Ltd. And Anr on 16 July, 2026
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GAHC010142502026
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./1005/2026
DR BHABEN GOGOI
S/O KHAGEN GOGOI, RESIDING AT RAMKRISHNA MISSION ROAD, WARD
NO. 1, HOJAI BAZAR, HOJAI, ASSAM, PIN- 782435
VERSUS
HELSE MEDICAL SCIENCE PVT. LTD. AND ANR
A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 2013,
REGISTERED OFFICE AT C/O KSHITISH CHANDRA DUTTA, RED CROSS
ROAD, POLICE RESERVE, DIBRUGARH- 786001, ASSAM, REPRESENTED BY
ITS AUTHORISED REPRESENTATIVE/DIRECTOR, SHRI GAURAV DUTTA,
AGED ABOUT 37 YEARS, RESIDENT OF RED CROSS ROAD, POLICE
RESERVE, DIBRUGARH- 786001, ASSAM
3:THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTO
Advocate for the Petitioner : MS. R CHOUDHURY, MR D. CHAKRABORTY,MS. M
BORDOLOI,S E MURTAZA
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
16.07.2026
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1. Heard Learned Senior Counsel Ms. R. Choudhury for the petitioner Dr.
Bhaben Gogoi who has filed this application under Section 528 of the Bharatiya
Nagarik Suraksha Sanhita 2023 (BNSS for short) with prayer to quash the entire
proceeding of NI Case No. 247/2025 pending in the Court of the Judicial
Magistrate 1st Class at Dibrugarh. The petitioner has also impugned the order
dated 30.12.2025 passed by the Learned Judicial Magistrate 1 st Class (JMFC for
short).
2. Heard learned Additional Public Prosecutor, Mr. P. S. Laskar for the
respondent No. 2. Learned Additional Public Prosecutor has accepted notice for
the respondent No. 2, State of Assam and thus no formal notice is required to
be issued.
3. It is submitted on behalf of the petitioner that Health Care Medical Science
Pvt. Ltd. executed an agreement with SIMS Multispecialty Hospital LLP on
05.08.2024, as a service provider. Annexure-2 is the agreement. There is also
an arbitration clause in the agreement. It is submitted that the petitioner is one
of the five partners of the South East Asian Institute of Medical Science
Multispecialty Hospital LLP (SIMS for short) and the Health Care Medical Science
Pvt. Ltd. (HELSE for short) executed the agreement as a service provider.
4. Annexure-3 is the Limited Liability Partnership Agreement executed between
HELSE and SIMS on 15.11.2024. Pursuant to the business dealings between
both the parties, cheques were exchange and the cheques were blank cheques
with the signatures of the partners. ABP Associates Pvt. Ltd. is one of the
partners of SIMS Multispecialty Hospital and the petitioner is one of the
directors of ABP Associates Pvt.
5. After execution of the term sheet agreement dated 28.06.2024, the
respondent No. 1/complainant deposited a sum of Rs.10 lakhs in favour of ABP
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Associates on 03.07.2024 and later on similar payments were made to SIMS and
ABP Associates commencing from 17.07.2024 and the last payment was made
on 09.05.2025, the total being Rs. 3,46,85,858 (Three crores forty six lakhs
eighty five thousand eight hundred fifty eight only).
6. It is contended that the first agreement was executed between the parties
and the respondent No. 1/complainant had deposited the money for taking over
the full management rights including transaction rights of SIMS. Thereafter on
15.11.2024, the annexure-3 was executed and both the parties except
Amarendra Dewan affixed their signatures on the amended agreement dated
15.11.2024.
7. It is submitted that on 21.08.2025, Shri Gaurav Dutta, one of the directors
of HELSE, suddenly approached the petitioner, in a hurried manner while he was
examining patients and offered a cheque bearing No. 048707 dated 21.08.2025
from the SIMS account under the signature of the said director of the
complainant company i.e. Gaurav Dutta for Rs. 11,50,000/-. While handing over
the aforesaid cheque, Gaurav Dutta had obtained the signatures of the
petitioner on a bunch of papers on the pretext that the papers were required for
some business/management purpose of the SIMS company. The respondent No.
1 had also obtained undated blank cheques as security to carry out all the
business formalities.
8. It is submitted that the petitioner on good faith affixed his signatures on the
bunch of papers and on the blank cheques required for the management of the
SIMS company without even reading the contents and also handed over the
undated blank cheques No. 347703 and 347704 respectively from his personal
bank account, both drawn on the State Bank of India, Hojai Branch.
9. To the utter dismay of the petitioner, the respondent No. 1 has now brought
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up a case under Section 138 of the Negotiable Instruments Act, 1881 (the NI Act
for short) and this case has been registered as NI Case No. 247 of 2025. It is
contended that the cheque marked as annexure-IV clearly reveals that the cheque
was issued for SIMS by the petitioner, not for his individual or personal purpose.
The amount mentioned in this cheque cannot be withdrawn from the personal
account of the petitioner.
10. It is submitted that the complaint was filed under Section 210(1)(a) of the
BNSS, by HELSE,
false allegations that the cheque was issued by the petitioner in discharge of a
debt.
11. It is further submitted that SIMS was unaware that the agreement has been
turned into a loan agreement. The petitioner and his company has been trapped
into executing an agreement which was later converted into a loan agreement.
However, the complaint petition itself is that Rs 3,46,85,858/- was transferred to
the SIMS towards a proposed acquisition of 26% of capital contribution in the SIMS
and induction of the respondent as a partner and designated partner as well as for
the management and operations of the hospital.
12. It has been admitted by the respondent No. 1 in the complaint petition itself
which is marked as annexure-V of this petition. The petitioner has disputed the
notarized loan agreement dated 21.08.2025 on the basis of which the respondent
No. 1 has leveled allegations under Section 138 of the NI Act against the petitioner
at paragraph-5 of the complaint petition marked as annexure-VI.
13. It is further submitted that assuming the petitioner had executed a loan
agreement, even then, the complainant is not solely liable as a director of the LLP
Associates which is also a part of SIMS.
14. The petitioner has relied on a decision of this Court in Patha Pratim
Borthakur Vs. Megha Technical & Engineers Pvt. Ltd. reported in 2017
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Legal Eagle (GAU HC) 394, wherein it has been held that:-
“16. Whether, without impleading the company, a complaint under Section
138 can be maintained against a Director of the Company. has been a subject
matter of discussion in Aneeta Hada v. Godfather Travels And Tours (P) Ltd.,
(2012) 5 SCC 661 Since there was a difference of opinion among the Hon’ble
Judges sitting in a Division Bench, the issue came to be settled in Aneeta
Hada(supra). The point of contention was whether an authorized signatory of
a company would be liable for prosecution under Section 138 of the
Negotiable Instruments Act. 1881 without the company being arraigned as an
accused?
17. While settling the issue, the Hon’ble Supreme Court in Aneeta Hada
(supra), held that commission of offence by the company is an express
condition precedent to attract the vicarious liability of others. Thus, the words
“as well as the company” appearing in section 141 make it absolutely
unmistakably clear that when the company can be prosecuted, then only the
persons mentioned in the other categories could be vicariously liable for the
offence subject to the averments in the petition and proof thereof.
18. The relevant paragraph of Aneeta Hada (supra) is reproduced as follows;
58. Applying the doctrine of strict construction, we are of the considered
opinion that commission of offence by the company is an express condition
precedent to attract the vicarious liability of others.
Thus, the words “as well as the company” appearing in the section make
it absolutely unmistakably clear that when the company can be prosecuted,
then only the persons mentioned in the other categories could be vicariously
liable for the offence subject to the averments in the petition and proof
thereof.
19. Apparently, the company NEFFS (India) Private Limited has neither been
impleaded as accused in the complaint case nor any cognizance has been
taken by the Court against the company In view of the fact that the entire
transaction by the respondent was carried out in the name of NEFFS (India)
Private Limited, a company, a prosecution for dishonor of Cheque would not
be maintainable without impleading the said company as accused in view of
the ratio laid down in the case of Aneeta Hada (supra).
20. As a result of the foregoing discussions, the learned trial Court could not
have taken cognizance against the petitioner and as such the order of taking
cognizance and consequent order of issuance of process is liable to quashed
and set aside.”
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15. I have considered the submissions at the Bar with circumspection.
16. The petitioner has prayed for stay of the proceedings whereas, the learned
Additional Public Prosecutor has raised serious objection stating that this is a
case of serious nature relating to transfer of huge amount of funds and non-
repayment of the same and without scrutinizing the entire aspect of the matter,
interim protection cannot be granted to the petitioner.
17. It appears that there is a prima facie case to grant interim protection.
18. Issue notice to the respondent returnable within2 (two) weeks.
19. Call for the scanned copies of the Trial Court Records.
20.List this matter after 2 (two) weeks.
21.The proceedings of N.I. Case No. 247/2025 is stayed till the next date of
listing.
JUDGE
Comparing Assistant
