JUDGMENT & ORDER (ORAL) :

1. The petitioner/accused preferred this petition under section 482 CrPC challenging the impugned order dated 12.08.2014 and the entire proceeding pertaining to CR Case No. 4144/2013 now pending in the Court of Addl. CJM, Kamrup (M).

2. The respondent No. 2 as complainant filed a complaint under section 138 N.I Act against the present petitioner on the ground that the cheque amounting to Rs. 3,18,702/-issued by the petitioner’s firm UFONIC in favour of the complainant was dishonoured and despite the demand notice issued by the complainant to the petitioner no payment was made. By its order dated 6.12.2013 the learned trial court took cognizance of the offence under section 138 N.I Act and issued summons to the accused named therein namely Gautam Das (accused No. 2) who is the proprietor of the said firm and the firm (accused No. 1). Repeated summons issued to the said person Gautam Das was not served and returned with report that there is no such person as Gautam Das.

3. On 30.07.2014 the complainant/respondent moved an application before the court that there is an error in the name of the propertior of the firm and it is wrongly typed Gautam Das instead of Minal Kumar Das and sought permission to correct the name of the proprietor by inserting the name of Sri Minal Kumar Sharma as Proprietor of the said firm. By the impugned order dated 12.08.2014, the learned trial court allowed the petition and by inserting the name of the present petitioner as prayed for issued summons to the present petitioner which is now challenged by the present petition on the ground that the said complaint as well as the order passed by the learned court is not tenable against the present petitioner and liable to be quashed and set aside on the ground that the no demand notice was sent to the present petitioner, rather it was sent to said Gautam Das, and NI Act being a special law certain procedure has to be followed to raise cause of action but the learned trial court has ignored the mandates of law prior to taking cognizance of the offence.

4. The learned counsel for the petitioner has submitted that section 142 of NI Act lays down certain procedure for taking cognizance and for making offence under section 138 a notice must be sent to the drawer of the cheque to make the payment within 15 days from the date of receipt of the notice, then only cause of action accrues. It contend that in the present case there cannot be any cause of action as against the present petitioner for not serving any legal notice upon him so the entire proceeding needs to be set aside.

5. The respondent/the complainant opposed the present application by stating that the name of the proprietor of the firm was wrongly typed as a Gautam Das in the complaint petition whereas one Minal Kumar Sarma looks after the business and management of the firm being the proprietor of the said firm and the cheque in question was issued by the said Minal Kumar Sarma himself in the capacity as a proprietor. The legal notice issued was served upon the firm and accused is none other than the proprietor of the said firm but however the name of the proprietor was wrongly written as Gautam Das and the aforesaid mistake was unintentional. The complainant/respondent overlooked the same inadvertently and accordingly prayer was made before the court to insert the name of the proprietor as Minal Kumar Sarma in place of Gautam Das.

6. The learned court by order dated 12.08.2014, after hearing on the petition and on due consideration allowed the said prayer and by inserting the name of the present petitioner as proprietor, issued summons to him. The petitioner appeared before the court and went on bail but at present non-bailable warrant of arrest has been issued against him by the court fixing 2.2.2017 and at this stage he had come forward with the present petition with the submission that the said order as well as the entire proceeding is liable to be quashed.

7. The learned counsel f

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