Calcutta High Court (Appellete Side)
Gautam Dey vs Golam Saharia on 28 April, 2026
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE UDAY KUMAR
CRR 3672 OF 2023
CRAN 2 OF 2024
GAUTAM DEY
-VS-
GOLAM SAHARIA
For the Petitioner : Mr. Somnath Adhikary
For the Opposite Party : Mr. Pratip Kumar Chatterjee, Sr. Adv.
Ms. Maitrayee Chatterjee
Hearing concluded on : 06.03.2026
Judgment on : 28.04.2026
UDAY KUMAR, J.: -
1.
INTRODUCTION
1.1. This revisional application, preferred under Section 482 read
with Section 401 of the Code of Criminal Procedure, 1973, is
directed against the proceedings of C.R. Case No. 365 of 2022
(TR Case No. 410 of 2022) pending before the Learned Judicial
Magistrate, 1st Class, 2nd Court, Berhampore, Murshidabad.
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CRR 3672 OF 2023
The petitioner primarily assails the order dated August 4,
2023, whereby the Learned Magistrate rejected a prayer for
discharge, effectively compelling the petitioner, a non-
signatory to the cheque, to stand trial for a criminal offense
involving a negotiable instrument allegedly committed by a
deceased drawer.
1.2. The impugned proceedings are challenged primarily on the
grounds that the Learned Magistrate failed to appreciate the
fundamental distinction between the civil liability of an estate
and the personal nature of criminal liability. The petitioner
contended that the continuation of this prosecution constitutes
a manifest abuse of the process of law, as the statutory
requirements of Section 138 of the Negotiable Instruments
Act, 1881, remain wholly unfulfilled in relation to him.
2. BACKGROUND FACTS
2.1. The genesis of the present dispute is found in a purported
business transaction between the Opposite Party
(Complainant) and one Tapan Kumar Dey (since deceased),
the elder brother of the petitioner. It is alleged that the
deceased, in his capacity as a Ration Dealer, secured a loan of
₹27,00,000/- from the Opposite Party for business exigencies.
2.2. In purported discharge of the said liability, Tapan Kumar Dey
issued an account payee cheque (No. 519344) dated February
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CRR 3672 OF 2023
1, 2022, drawn on the State Bank of India, Gram Salika
Branch. However, the legal trajectory of this instrument was
irrevocably altered when the drawer expired on February 3,
2022, as evidenced by the death certificate produced before
the Trial Court (Annexure P-1).
2.3. Notwithstanding the drawer’s demise, which by operation of
law revoked the bank’s mandate to pay, the Opposite Party
presented the cheque for encashment on April 6, 2022. Upon
its dishonour with the endorsement “Funds Insufficient,” the
Complainant attempted to transmute a civil debt into a
heritable criminal liability by serving a statutory demand
notice dated April 13, 2022, upon the petitioner, Gautam Dey,
on the premise of him being a “Legal Representative” and
“Business Associate.”
2.4. Following the petitioner’s refusal to satisfy the demand on the
grounds of total lack of personal culpability, the Opposite
Party instituted the impugned complaint under Section 138 of
the Negotiable Instruments Act. The petitioner subsequently
moved for discharge, asserting that since the cheque was
neither signed by him nor drawn on an account maintained by
him, the prosecution was void ab initio and an egregious
abuse of the process of law.
2.5. By the impugned order dated August 4, 2023, the Learned
Magistrate rejected the petitioner’s plea. The Learned Court
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CRR 3672 OF 2023
observed that in a summons-triable case, there is no specific
procedural provision for “discharge” and further held that the
applicability of Section 29 of the N.I. Act regarding the liability
of a legal representative was a “matter of trial.”
2.6. Aggrieved by this refusal to drop a fundamentally flawed
prosecution, the petitioner has moved this Court for quashing
on the grounds that he is a non-signatory, the criminal
liability is non inheritable, and the requisite “concatenation of
acts” necessary to complete an offense under Section 138
cannot, in law or facts, be attributed to him.
3. QUESTIONS FOR DETERMINATION
3.1. Having set out the background facts that precipitated this
revisional application, it is now imperative to crystallize the
legal controversy. The primary grievance of the petitioner is
that he has been compelled to stand trial for a criminal
offense that is, by its very nature, fundamentally incapable of
being committed by him.
3.2. To effectively adjudicate upon the legality of the impugned
proceedings and the subsequent refusal of the Learned Trial
Court to exercise its jurisdiction, the following Questions for
Determination are formulated:
I. Whether criminal liability under Section 138 of the
Negotiable Instruments Act, 1881, is strictly intuitu
5
CRR 3672 OF 2023personae (personal to the drawer) or if it can be
inherited by a legal representative upon the
drawer’s demise?
II. Whether a person who is neither the signatory to
the cheque nor the maintainer of the bank account
can be prosecuted for its dishonour, even if they are
a “business associate” or “co-borrower”?
III. Whether the statutory “concatenation of acts”
required to complete an offense under Section 138,
specifically the issuance of a valid demand notice
and the subsequent failure to pay, can be legally
fulfilled when the drawer dies prior to the
presentation of the cheque and the issuance of the
demand notice?
IV. Whether the Learned Magistrate’s refusal to
entertain a plea for discharge in a summons-triable
case, on purely procedural grounds, constitutes a
failure to exercise jurisdiction to prevent an abuse of
the process of law?
4. SUBMISSIONS ON BEHALF OF THE PETITIONER
4.1. In the backdrop of the questions formulated hereinabove, Mr.
Somnath Adhikary, the Learned Counsel appearing for the
Petitioner, submitted that the impugned proceeding is not
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CRR 3672 OF 2023
only factually misplaced but legally unsustainable from its
very inception. He placed considerable emphasis on the
jurisdictional bar and the statutory limitations inherent in the
Negotiable Instruments Act, 1881.
4.2. Mr. Adhikary contended that the impugned proceeding is
coram non judice as against the petitioner. He argues that the
foundational requirements of Section 138 are conspicuously
absent, as the petitioner is neither the “drawer” of the
instrument nor the “maintainer” of the bank account from
which the cheque originated. It is vehemently argued that
criminal liability under this Section is strictly personal (intuitu
personae). Since the cheque was drawn on an account
maintained exclusively by the deceased, Tapan Kumar Dey,
and bore his signature alone, fastening criminal culpability
upon a non-signatory brother based solely on familial ties is a
perversion of the penal statute.
4.3. Mr. Adhikary further contended that the “concatenation of
acts” necessary to constitute an offense under Section 138
was never completed. He highlighted that the drawer expired
on February 3, 2022, long before the cheque was presented
for encashment on April 6, 2022. Consequently, the statutory
demand notice served upon the surviving brother cannot be
deemed a valid substitute for a notice to the drawer; a
deceased person cannot “fail to pay” within the meaning of
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CRR 3672 OF 2023
the Act, and thus, the cause of action for a criminal
prosecution never legally accrued.
4.4. Addressing the Complainant’s reliance on Section 29 of the
Act, Mr. Adhikary submits that this provision is confined
strictly to the civil domain, facilitating the recovery of debt
from the estate of the deceased. He argued that civil liability
for a debt and criminal liability for a dishonoured cheque are
distinct legal species; the former may follow the assets, but
the latter is extinguished with the life of the offender. To
prosecute the petitioner under the guise of being a “Legal
Representative” is, therefore, an impermissible expansion of
the penal statute.
4.5. In support of these contentions, reliance is placed on the
definitive rulings in Alka Khandu Avhad vs. Amar
Shyamprasad Mishra & Anr. (2021) 4 SCC 675 and Ganga
Prasad Ratnakar vs. Fanindra Kumar Chandra (2023) SCC
OnLine SC 2031. The petitioner submits that these decisions
constitute the law of the land under Article 141 of the
Constitution and render the impugned trial bad in law. Finally,
it is urged that the Opposite Party is utilizing the criminal
machinery as an instrument of coercion for debt recovery,
constituting a classic case of abuse of the process of law.
4.6. Finally, Mr. Adhikary submitted that the Opposite Party is
attempting to utilize the criminal machinery as an instrument
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CRR 3672 OF 2023
of coercion for debt recovery, bypassing the appropriate civil
remedies. Such a course of action constitutes a classic case of
abuse of the process of law. The petitioner, therefore, most
humbly prays that this Hon’ble Court may be pleased to make
the Rule absolute and quash the entire proceedings in C.R.
Case No. 365 of 2022, thereby protecting the petitioner from
the harassment of a meritless and legally incompetent
criminal trial.
5. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTY
5.1. Per contra, Mr. Pratip Kumar Chatterjee, Learned Senior
Advocate, appearing for the Opposite Party (Complainant)
vehemently opposed the prayer for quashing. He contended
that the matter involves disputed questions of fact that can
only be adjudicated through a full-scale trial, and that the
petitioner cannot invoke the inherent powers of this Court to
stifle a legitimate prosecution at the threshold.
5.2. The principal contention of the Opposite Party is that the
petitioner was not merely a relative, but an active “Business
Associate” and “Co-borrower.” Mr. Chatterjee draws attention
to an “Angikar Patra” dated November 30, 2021, asserting the
petitioner’s direct involvement in the ration dealership. He
argued that since the petitioner inherited and now operates
the business for which the loan was utilized, he has stepped
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CRR 3672 OF 2023
into the shoes of the drawer and must answer for the
dishonour.
5.3. M. Chatterjee, Learned Senior Advocate for the Opposite Party
placed significant reliance on Section 29 of the N.I. Act,
contending that the statute expressly recognizes the liability
of a “Legal Representative.” He argued that as the sole heir of
the unmarried deceased, the notice served upon the petitioner
was legally valid and that he is bound to discharge the
liabilities, including the penal consequences, attached to the
inherited estate.
5.4. Significant reliance is placed on Section 29 of the N.I. Act,
with the argument that the statute expressly recognizes the
liability of a “Legal Representative.” It is contended that as
the sole heir of the unmarried deceased, the notice served
upon the petitioner was legally valid and that he is bound to
discharge the liabilities, including the penal consequences,
attached to the inherited estate.
5.5. Supporting the reasoning of the Trial Court, Mr. Chatterjee
submits that the Code of Criminal Procedure does not
contemplate a “discharge” stage in a summons case. He
contends that once process is issued under Section 204, the
Court becomes functus officio regarding the dismissal of the
complaint on merits prior to trial. Furthermore, the
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CRR 3672 OF 2023
petitioner’s initial silence following the demand notice is
characterized as an acquiescence of liability.
5.6. Finally, the Opposite Party submitted that the extent of the
petitioner’s involvement in the business remains a “triable
issue.” It is urged that in a matter involving a substantial sum
of ₹27,00,000/-, it would constitute a miscarriage of justice if
the Complainant is denied the opportunity to prove the
petitioner’s liability through evidence. Reliance is placed on
the principle that the inherent powers under Section 482 of
the Cr.P.C. should be exercised sparingly and only in the
“rarest of rare” cases. Consequently, the dismissal of the
revisional application is prayed for.
6. JUDICIAL DETERMINATION OF QUESTION NO. I
6.1. In the light of the rival contentions and the statutory
framework of the Negotiable Instruments Act, 1881, I now
address the First Question for Determination; Whether
criminal liability under Section 138 is strictly personal to the
drawer or if it can be inherited by a legal representative upon
the drawer’s demise?
6.2. To resolve this controversy, the Court must first advert to the
literal and strict construction of the penal provision. Section
138 of the N.I. Act is a species of “statutory offense” created
by a legal fiction. It stipulates that where any cheque is drawn
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CRR 3672 OF 2023
by “a person” on an account maintained by “him,” with a
banker for payment of any amount of money to another
person from out of that account for the discharge, in whole or
in part, of any debt or other liability, and such cheque is
returned by the bank unpaid for insufficiency of funds, such
person shall be deemed to have committed an offence…”.
6.3. In the realm of criminal jurisprudence, the use of these
singular, personal pronouns is not merely a matter of
grammar but a clear expression of legislative intent. The
penal consequence is inextricably tethered to the physical
identity of the individual who performs the act of signing and
who maintains the account. Unlike civil law, where obligations
may be transferred, criminal liability is governed by the
principle of intuitu personae, it is personal to the offender and
dies with the offender.
6.4. The Opposite Party has strenuously argued that under Section
29 of the N.I. Act, a legal representative is liable for the
obligations of the deceased. While this is a valid proposition in
civil law, it is a legal fallacy when transposed into criminal
proceedings. The principle of action personalis moritur cum
persona (a personal action dies with the person) operates
with full force here. While a debt is a heritable liability that
follows the estate of the deceased, a “crime” is not an asset
or a legacy that can be bequeathed to or fastened upon a
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CRR 3672 OF 2023
surviving heir. The petitioner, Gautam Dey, may inherit the
ration business, but he does not inherit the criminal culpability
for a cheque he did not sign.
6.5. The rhythmic connection between the facts and the law in this
case is stark and admits no ambiguity. The cheque in question
was issued by Tapan Kumar Dey on February 1, 2022.
Crucially, the drawer expired on February 3, 2022. By
operation of law, the moment the drawer ceased to exist, the
bank’s mandate to pay out of that account was revoked.
When the Opposite Party presented the cheque on April 6,
2022, nearly two months after the drawer’s death, they were
presenting an instrument that was already a legal nullity for
the purpose of criminal prosecution. The Complainant’s
attempt to transmute the resulting dishonour into a criminal
liability for the surviving brother, Gautam Dey, ignores the
elementary principle that a “crime” is not an asset or a legacy
that can be bequeathed to a surviving heir.
6.6. This proposition is no longer res integra. The Hon’ble Supreme
Court in Alka Khandu Avhad vs. Amar Shyamprasad Mishra &
Anr. (2021) 4 SCC 675, addressed this very intersection of
joint liability and individual culpability. In Paragraph 10, the
Apex Court held:
“Therefore, a person who is the signatory to the cheque
and the cheque is drawn by that person on an account
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CRR 3672 OF 2023maintained by him and the cheque has been issued for
the discharge, in whole or in part, of any debt or other
liability… such person can be said to have committed an
offence. Section 138 of the NI Act does not speak about
the joint liability. Even in case of a joint liability, in case
of individual persons, a person other than a person who
has drawn the cheque on an account maintained by
him, cannot be prosecuted for the offence under Section
138 of the NI Act.”
6.7. In the aforementioned case, a husband issued a cheque for a
joint liability, and the wife was made a co-accused as a “joint
debtor.” The Opposite Party attempts to distinguish this by
claiming the petitioner is a “business associate” who inherited
the business and not merely a family member. However, this
Court finds that the ratio decidendi of Alka Khandu Avhad is
that joint liability for a debt does not create “jointness” of the
crime. Since the petitioner is a non-signatory, the ratio
applies squarely in his favour.
6.8. Even if the petitioner were a co-borrower, the statutory
requirement remains: only the person who draws the cheque
on an account maintained by him can be prosecuted. The
petitioner is a non-signatory to the instrument and a stranger
to the account; therefore, the protective umbrella of this
precedent covers him entirely.
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CRR 3672 OF 2023
6.9. This stance was recently fortified in Ganga Prasad Ratnakar
vs. Fanindra Kumar Chandra (2023) SCC OnLine SC 2031. At
Paragraph 8, the Court reaffirmed:
“The liability of the drawer of the cheque is a personal
liability… The legal heirs of the deceased drawer cannot
be prosecuted for the offence committed by the
deceased drawer.”
6.10. The Opposite Party’s contention that this case is
distinguishable because the drawer there died after the
litigation commenced is a distinction without a legal
difference. In fact, if the law prohibits the continuation of a
trial against an heir for an offense committed during the
drawer’s lifetime, it must, a fortiori, prohibit the
commencement of a trial for an instrument that resulted in
dishonour only after the drawer had already passed away. The
timing of the death does not create liability; it merely
underscores the absence of a legal entity capable of
committing a default. If the law prohibits continuing a trial
against an heir for an offense committed by a deceased, it
certainly cannot permit the commencement of a trial for a
cheque presented after the drawer’s death. The common
thread is the cessation of criminal liability upon death, and the
timing of the demise does not alter this fundamental legal
proposition.
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CRR 3672 OF 2023
6.11. While the Opposite Party places heavy reliance on Section 29
of the N.I. Act (liability of a legal representative), they fail to
appreciate that Section 29 operates strictly within the civil
domain for the recovery of dues from the estate. Civil liability
follows the assets, but criminal liability is extinguished with
the life of the offender. Fastening the penal consequences of
Section 138 upon the petitioner would require an
impermissible stretching of a penal statute and a violation of
the fundamental right to a fair procedure under Article 21 of
the Constitution.
6.12. The “concatenation of acts” required to complete an offense
under Section 138, issuance, presentation, dishonor, and
failure to pay after notice, must be attributable to the same
persona. Since the drawer was already deceased at the time
of presentation and notice, he was no longer a legal entity
capable of committing a default. Fastening this default upon
the petitioner, Gautam Dey, would require an impermissible
stretching of a penal statute.
6.13. Upon a meticulous comparison of the facts and the cited
authorities, I hold that criminal liability under Section 138 is
strictly personal and dies with the drawer. It cannot be shifted
to, or inherited by, a legal representative, regardless of their
purported status as a business associate or heir. The Learned
Magistrate’s view that this is a “matter of trial” is a failure to
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CRR 3672 OF 2023
exercise jurisdiction to terminate a proceeding that is legally
incompetent from its inception. The first question is,
therefore, answered in the negative.
7. JUDICIAL DETERMINATION OF QUESTION NO. II
7.1. Having resolved that criminal liability under the Negotiable
Instruments Act is strictly personal and non-heritable, I now
turn to the second question for determination: Whether a
person who is neither the ‘signatory’ to the cheque nor the
‘account holder’ can be prosecuted under Section 138, even if
they are described as a “business associate” or “co-
borrower”?
7.2. The language of Section 138 of the N.I. Act creates a specific
and impenetrable perimeter of liability. The statute targets
the person who draws a cheque on an account “maintained by
him.” This Court observes that the maintenance of the
account and the issuance of the instrument are the twin
pillars, the sine qua non, for the attraction of Section 138. In
the instant case, it is an admitted position that the bank
account at the State Bank of India, Gram Salika Branch, was
maintained solely by the deceased, Tapan Kumar Dey. The
petitioner, Gautam Dey, remains a stranger to the banking
contract between the deceased and the financial institution.
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CRR 3672 OF 2023
7.3. The Opposite Party has placed heavy reliance on an “Angikar
Patra” to argue that the petitioner exercised “real control”
over the ration business and acted as a co-borrower.
However, a fundamental distinction must be drawn between
natural persons and juristic entities. Under Section 141 of the
N.I. Act, “vicarious liability” is a statutory exception that
allows for the prosecution of directors or partners who are in
charge of a company’s or firm’s affairs, even if they are not
the signatories. In the present matter, the business was a
sole proprietorship of the deceased. There exists no
partnership deed or corporate structure that brings the
petitioner within the ambit of the “deemed liability” clause of
7.4. The Hon’ble Supreme Court in Alka Khandu Avhad vs. Amar
Shyamprasad Mishra (2021) 4 SCC 675 has unequivocally
settled this controversy. The Apex Court held:
“Section 141 of the NI Act… is not applicable in the case
of a joint liability of two individuals… A person might
have been jointly liable to pay the debt, but if such a
person… was not a signatory to the cheque, [he]
cannot be prosecuted.”
This ratio establishes that in transactions involving
individuals, the “signatory rule” is absolute. The
Complainant’s attempt to transplant the “person-
in-charge” theory from Section 141 into a case
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CRR 3672 OF 2023
involving a private individual is legally
impermissible.
7.5. The Opposite Party seeks to distinguish the present case by
claiming the petitioner is a “beneficiary” of the loan. This Court
finds that even if evidence were adduced to prove that the
petitioner was a co-borrower, such facts would only be
relevant in a Civil Suit for Recovery. In a criminal prosecution
under Section 138, the Court is not concerned with who
“utilized the funds,” but rather with who “issued the
instrument.” The petitioner’s status as a “business associate”
does not grant him the legal capacity to authorize payment
from his brother’s account. Consequently, he cannot be held
criminally liable for the bank’s refusal to honour an instrument
he did not sign, drawn on an account he did not maintain.
7.6. The nexus between the accused and the bank account is the
fundamental requirement for a valid prosecution. In the
absence of a joint account or a partnership firm, a “business
associate” cannot be substituted as an accused. The Opposite
Party’s contention that the petitioner’s business role is a
“matter of trial” is rejected; no amount of evidence regarding
his involvement in the ration dealership can override the
statutory requirement of him being the “drawer” of the
cheque.
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7.7. I hold that a non-signatory, who is not the maintainer of the
account, cannot be prosecuted under Section 138 of the N.I.
Act, regardless of his alleged involvement in the underlying
business transaction. The “link” in facts is established: the
petitioner is being prosecuted for a debt he may share, but
through an instrument he did not draw. Such a prosecution is
bad in law. The second question is, therefore, answered in the
negative.
8. JUDICIAL DETERMINATION OF QUESTION NO. III
8.1. Proceeding in the established line of reasoning, I now address
the Third Question for Determination; Whether the statutory
“concatenation of acts” required to complete an offense under
Section 138 – specifically the issuance of a valid demand
notice and the subsequent failure to pay – can be legally
fulfilled when the drawer dies prior to the presentation of the
cheque?
8.2. It is a settled principle of law that the dishonour of a cheque,
by itself, does not constitute an offense under Section 138 of
the Negotiable Instruments Act. The offense is a “process-
driven” crime that requires the cumulative fulfilment of a
series of statutory acts. These are:
i. The drawing of the cheque for a legally enforceable
debt;
ii. Presentation of the cheque within its validity;
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iii. The return of the cheque unpaid by the bank;
iv. The issuance of a written demand notice to the
drawer within 30 days of dishonour; and
v. The failure of the drawer to make the payment within
15 days of receipt of such notice.
8.3. The facts on record establish that the drawer, Tapan Kumar
Dey, expired on February 3, 2022. The cheque was
subsequently presented on April 6, 2022, and the notice was
issued on April 13, 2022. At the time of presentation and
subsequent notice, the “drawer” had ceased to be a legal
person. The statute explicitly mandates that the notice must
be served upon “the drawer of the cheque.”
8.4. In the present case, the Opposite Party served the notice
upon the petitioner, Gautam Dey, treating him as a
substitute. This Court finds that the law does not recognize a
“substituted service” on a legal heir for the purpose of
initiating a criminal prosecution. A dead person cannot receive
a notice, nor can they commit the “default” of non-payment
within 15 days, which is the final act that triggers the cause of
action for a criminal complaint.
8.5. In Alka Khandu Avhad vs. Amar Shyamprasad Mishra (2021)
4 SCC 675, the Supreme Court examined the necessity of the
“identity of the drawer.” The Court held that:
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CRR 3672 OF 2023
“The offence under Section 138 of the NI Act can be
said to have been committed by the person who has
drawn the cheque… the notice is required to be given to
the drawer of the cheque.”
8.6. The Learned Counsel for the Opposite Party argued that by
not replying to the notice, the petitioner “accepted” his
liability. I find this argument to be legally fallacious. There is
no legal obligation on a third party, the petitioner, to reply to
a notice issued for a criminal liability that he never personally
incurred. Silence in the face of a legally incompetent notice
does not confer jurisdiction upon a criminal court, nor does it
breathe life into a non-existent cause of action.
8.7. Furthermore, as per the law of agency and banking norms,
the death of a drawer operates as a revocation of the bank’s
authority to pay. When the cheque was presented on April 6,
2022, the “mandate” of the deceased had already expired. A
prosecution cannot be sustained on an instrument that was
presented after the death of the person who issued it, as the
essential element of mens rea (criminal intent) at the time of
the “default” (the 15-day period) cannot be attributed to a
deceased person.
8.8. The “concatenation of acts” remained incomplete and was
broken the moment the drawer expired. In such event, the
service of notice on the petitioner amount to a futile exercise.
The petitioner, not being the drawer, was under no statutory
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obligation to satisfy the notice, and his “failure to pay” cannot
be termed a criminal offense. I hold that a valid cause of
action under Section 138 cannot arise when the drawer dies
before the presentation of the cheque or the issuance of the
notice. The service of a statutory notice on a legal heir does
not satisfy the requirements of the Act for the purpose of
criminal prosecution. The third question is, therefore,
answered in the negative.
9. JUDICIAL DETERMINATION OF QUESTION NO. IV
9.1. Having concluded that the statutory prerequisites for an
offense under Section 138 of the Negotiable Instruments Act
remain unfulfilled, I now turn to the fourth question: Whether
the Learned Magistrate’s refusal to entertain a plea for
discharge in a summons-triable case, on purely procedural
grounds, constitutes a failure to exercise jurisdiction to
prevent an abuse of the process of law?
9.2. In the impugned order dated August 4, 2023, the Learned
Magistrate observed that since the case is a “Summons Trial”
regulated by Chapter XX of the Cr.P.C. (now Chapter XXI of
the BNSS), there is no explicit provision for “Discharge” once
process has been issued. The Trial Court further suggested
that the question of liability is entirely a “matter of trial.” I
find this approach to be overly technical, legally flawed, and
23
CRR 3672 OF 2023an abdication of the judicial duty to vet the “substance of
accusation.”
9.3. It is a settled principle that a Magistrate is not a “post office”
or a “mute spectator.” When an accused appears in response
to a summons, the Court has a fundamental duty under
Section 251 Cr.P.C. to satisfy itself whether the accusation
constitutes a legally recognizable offense. If the complaint, on
its face, reveals that the accused is a non-signatory and the
drawer is deceased, the Court is not mandated to drag the
accused through the protracted ordeal of a full trial. To do so
is to ignore the primary purpose of Section 251, which is to
ensure that no person is tried for a non-existent offense.
9.4. The Opposite Party has placed heavy reliance on the “No-
Recall” rule established in Adalat Prasad vs. Roopal Jindal
(2004) 7 SCC 338 and Subramanyam Sethuraman vs. State
of Maharashtra (2004) 13 SCC 324, arguing that the
Magistrate cannot “review” his own summoning order due to
the bar under Section 362 of the Cr.P.C. These positions were
reaffirmed by the Constitution Bench in In Re: Expeditious
Trial of Cases u/s 138 NI Act (2021), which explicitly clarified
that Trial Courts do not possess inherent powers to review or
recall the issuance of process.
9.5. The Petitioner relied on Bhushan Kumar vs. State (NCT of
Delhi) (2012) 5 SCC 424 to argue that a Magistrate has the
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CRR 3672 OF 2023
inherent power to discontinue proceedings at the stage of
Section 251. However, this Court must acknowledge that the
expansive interpretation of Bhushan Kumar has been
significantly narrowed. As held in the recent ruling of Tulip
Multispeciality Hospital (P) Ltd. v. Akhil Saxena (2026 SCC
Online Del), the observations in Bhushan Kumar regarding the
power to “discharge” in a summons case are considered
passing references and cannot override the larger bench
mandate of Adalat Prasad. Consequently, the ratio of Bhushan
Kumar, to the extent that it suggests a formal “discharge”
stage in Chapter XX, is no longer the prevailing law.
9.6. While I accept that a Magistrate cannot “recall” process, this
Court observes that dropping proceedings where the
complaint is bad ab initio, such as a non-signatory heir being
prosecuted for a deceased drawer’s debt, is not a “review” of
a judgment but a refusal to continue an illegal prosecution.
The law interpreted by the Apex Court in Alka Khandu Avhad
and Ganga Prasad Ratnakar clearly prohibits the prosecution
of a non-signatory heir. To force such an heir to stand trial is
a violation of the fundamental right to a fair procedure under
Article 21 of the Constitution.
9.7. Procedural law is a “handmaid of justice,” not its mistress. A
Magistrate cannot hide behind the absence of a specific
“discharge” section to facilitate a trial that is destined to end
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CRR 3672 OF 2023
in acquittal due to a jurisdictional bar. When the “substance of
accusation” under Section 251 is a legal impossibility (i.e.,
attempting to inherit criminal liability), the Court is not a
“post office” mandated to continue a groundless trial.
9.8. I hold that the Learned Magistrate’s refusal to terminate the
proceedings on purely procedural grounds, despite the patent
legal incompetence of the complaint, was a failure to exercise
jurisdiction. When a complaint is legally incompetent on its
face, the Court must not hesitate to terminate the
proceedings at the threshold to prevent an abuse of the
process of law.
9.9. The refusal to discharge the petitioner on purely procedural
grounds was a failure to exercise jurisdiction. When a
complaint is legally incompetent, the Court must not hesitate
to terminate the proceedings at the threshold. The fourth
question is, therefore, answered in the Affirmative.
10. CONCLUSION WITH REASONS AND LEGAL FINDINGS
10.1. Upon a holistic consideration of the progressive discussions
made hereinabove, this Court arrives at the following
inescapable legal conclusions:
a) The fundamental premise of the Negotiable
Instruments Act, 1881, is to ensure the credibility of
banking transactions, yet it does not contemplate
26
CRR 3672 OF 2023the subversion of the basic tenets of criminal
jurisprudence. Criminal liability is not a heritable
estate. The “legal fiction” created under Section 138
is restricted to the “drawer” of the instrument. In
the present case, the death of the drawer, Tapan
Kumar Dey, on February 3, 2022, effectively
terminated the possibility of any personal criminal
default under the Act. The attempt to substitute the
petitioner, Gautam Dey, as an accused is a legal
misadventure that ignores the principle of nullum
crimen sine lege (no crime without law).
b) The “concatenation of acts” necessary to invite a
conviction under Section 138 remained
fundamentally broken. The statutory demand notice
issued on April 13, 2022, was directed at a non-
signatory for a default that the deceased drawer
could not physically or legally commit post-
mortality. As established by the ratio in Alka Khandu
Avhad (2021), the absence of the petitioner’s
signature on the cheque is a jurisdictional bar that
no amount of trial or evidence regarding “business
associations” can rectify.
c) This Court finds that the Learned Magistrate’s
refusal to discharge the petitioner was an act of
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CRR 3672 OF 2023
“procedural inertia.” When a complaint is ex-facie
legally unsustainable due to the death of the drawer
and the non-signatory status of the accused, the
trial becomes a hollow ritual. To allow such a trial to
proceed is to permit the criminal machinery to be
used as a lever for civil recovery, which constitutes
a classic “Abuse of the Process of Law.”
11. CONSEQUENTIAL ORDER AND DIRECTIONS
11.1. In view of the detailed findings recorded above, and for the
purpose of ensuring that the ends of justice are met, it is
hereby ordered as follows:
i. The entire proceedings in connection with C.R.
Case No. 365 of 2022 (TR Case No. 410 of 2022)
now pending before the Learned Judicial
Magistrate, 1st Class, 2nd Court, Berhampore,
Murshidabad, including the order taking cognizance
and all subsequent orders passed therein, are
hereby quashed and Set Aside insofar as the
petitioner, Gautam Dey, is concerned.
ii. The order dated August 4, 2023, passed by the
Learned Magistrate, whereby the petitioner’s
prayer for discharge was rejected, is hereby
annihilated.
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CRR 3672 OF 2023
iii. The petitioner is hereby discharged from his bail
bonds and is set at liberty. His personal bond and
any surety bonds executed in this matter are
hereby cancelled and deemed discharged.
iv. The Learned Judicial Magistrate, 2nd Court,
Berhampore, is directed to record the abatement
of the proceedings against the deceased Tapan
Kumar Dey (if not already done) and to consign
the records of the case to the file room in view of
the quashing of proceedings against the only
remaining accused.
v. It is expressly clarified that this order shall not
preclude the Complainant/Opposite Party No. 1
from pursuing a Civil Suit for Recovery or any
other appropriate civil remedy against the estate of
the deceased Tapan Kumar Dey in accordance with
the Law of Succession, if so advised. The
observations made herein are strictly limited to the
criminal liability under the N.I. Act.
11.2. The Registrar (L&OM) is directed to communicate this order to
the Learned Trial Court immediately through the Learned
District and Sessions Judge, Murshidabad, for necessary
compliance.
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CRR 3672 OF 2023
11.3. The Revisional Application being C.R.R. No. 3672 of 2023
stands allowed and disposed of accordingly.
11.4. There shall be no order as to the cost.
11.5. CRAN 2 of 2024 is also disposed of accordingly.
11.6. The Trial Court Record (TCR), if any, shall be sent down to the
Trial Court, at once.
11.7. Case diary, if any, be returned forthwith.
11.8. Urgent photostat certified copy of this judgment, if applied
for, be supplied to the parties upon compliance with all
requisite formalities.
(Uday Kumar, J.)