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Gauhati High Court
Page No.# 1/4 vs Hamanta Das on 11 June, 2025
Author: Parthivjyoti Saikia
Bench: Parthivjyoti Saikia
Page No.# 1/4
GAHC010001642022
2025:GAU-AS:7561
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./10/2022
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
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
VERSUS
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
Advocate for the Petitioner : MR C BARUAH, MR. B BARUAH,MR S HUSSAIN
Advocate for the Respondent : MS. R DEVI, MR. D BANIA,MR. S C BISWAS,MR. P S BISWAS
Page No.# 2/4
:: BEFORE ::
HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA
O R D E R
11.06.2025
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.
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.
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.
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.
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.
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.
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 arm-
twisting 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.”
7. I have given my anxious considerations to the submissions made by the learned
counsel of both sides.
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.
9. For the aforesaid reason, the criminal petition is partly allowed. The petitioner
Page No.# 4/4
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.
10. For the petitioner Ranumoni Dutta, the criminal petition is found to be devoid of
merit and stands dismissed accordingly.
11. With the aforesaid directions the present criminal petition is disposed of.
The interim order passed earlier stands vacated.
JUDGE
Comparing Assistant
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