Pranab Jyoti Dutta S/o Shri Mohan Chandra Dutta vs Chief Branch Manager, SBI, Sivasagar

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Gau) 268

IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
ROBIN PHUKAN, J.
Pranab Jyoti Dutta S/o Shri Mohan Chandra Dutta – Petitioner
Versus
The Chief Branch Manager, SBI, Sivasagar – Respondent
Crl. Pet. No. 446 of 2021
Decided On : 27-01-2023

Advocates:
Advocate Appeared:
For the Petitioner: D.C.K. Hazarika.
For the Respondent: G. Jalan.

Headnote:
Negotiable Instrument Act - Section 138 and 145(1) - Code of Criminal Procedure,1973 - Section 482 - Cognizance - Issued Summon - Quash - Dishonor Cheque - Assurance Cheque - Whether for recovery of money lent by respondent bank to petitioner by way of loan bank can maintain a civil proceeding and for dishonor of cheque issued to bank in discharge of said legally enforceable debt respondent bank can maintain a proceeding - Held, Filing of a complaint Section 138 of the NI Act is provided by statute of course subject to fulfillment of certain conditions existence of an legally enforceable debt between the parties and issuance of cheque towards discharge of said debt and dishonour of a cheque on presentation to bank and issuance of notice demanding payment of cheque amounts and failing to make payment within stipulated period - Here in this case aforementioned conditions seem to have been fulfilled and as to considered opinion of this Court estoppel would not operate against respondent in filing NI Act case before Court below - This being position there is no substance in submission of counsel for petitioner - Petition Dismissed

JUDGMENT :

ROBIN PHUKAN, J.

1. Heard Mr. D.C.K. Hazarika, learned Senior counsel, assisted by Ms. J. Kalita, learned counsel for the petitioner and also heard Mr. G. Jalan, learned counsel for the respondent.

2. In this petition under Section 482 of the Code of Criminal Procedure, the petitioner, namely, Shri Pranab Jyoti Dutta, has prayed for quashing of the complaint, dated 05.08.2020, filed by the respondent/complainant bank under Section 138 and 145(1) of the Negotiable Instrument Act (in short ‘NI Act’). It is to be noted here that upon the said complaint the learned court below has registered a case being N.I. Case No. 25/2020 and after taking cognizance upon the same issued summon to him to appear before it 05.04.2021 to stand trial.

3. The factual background leading to filing of the present petition is briefly stated as under:

“The petitioner has applied to the respondent bank for a loan of Rs. 4,24,000/- to purchase one Marshell Ambulance (Mahindra and Mahindra) vehicle for commercial purpose. Accordingly, the loan was sanctioned by the respondent bank and the petitioner has accepted the terms and conditions of the said loan, and executed an agreement thereby agreeing with all the terms and condition of the said loan. Thereafter, the petitioner has failed to make repayment of the loan amount despite request being made by the respondent bank and he accepted the liabilities by signing letters on 22.12.2009, 27.01.2011 and 11.12.2012. As the petitioner has failed to make payment of the amount, the defendant bank has instituted a Money Suit, being Money Suit No. 05/2016, for recovery of the outstanding dues, before the court of learned Civil Judge, Sivasagar, and after hearing the parties, the learned Court below has decreed the suit in favour of the respondent. The petitioner then preferred a Regular First Appeal before this Court, being RFA No. 65/2019, on various grounds, and the same is pending before this Court for final adjudication.

At the time of sanctioning of the loan, the respondent bank has taken some security cheques from the petitioner. Then the respondent bank has presented one of the Cheque, bearing No. 418162, dated 20.05.2020, for a sum of Rs. 5,40,000/- for encashment. The said cheque returned dishonoured. Then the respondent bank has issued legal notice to the petitioner demanding the cheque amount. But, the petitioner has failed to make payment of the cheque amount within the stipulated period. Then the respondent bank has filed a case under section 138 N.I. Act, on 05.08.2020, before the learned Chief Judicial Magistrate, (CJM) Sivasagar, Assam. Upon the said case the learned CJM, Sivasagar has taken cognizance and issued summon to the petitioner to stand trial in the court.”

4. Being highly aggrieved by the order of taking cognizance under Section 138 of the NI Act, against him by the learned Chief Judicial Magistrate, the petitioner has filed this petition for quashing the criminal proceeding of N.I. Case No. 25/2020, pending before the Court of learned CJM, Sivasagar, Assam, on the following grounds that:

(i) Filing of Money Suit No. 05/2016 against the petitioner on 04.07.2016, which was adjudicated in favour of the respondent, vide Judgment and Order dated 17.11.2018, and the Decree dated 27.11.2018, and subsequent filing of the NI Act case, suppressing the material fact that the appeal preferred by the petitioner is pending before this Court for hearing, amounts to double jeopardy under Article 20(2) of the constitution of India.

(ii) Secondly, the respondent bank has concealed vital material facts as well as relevant papers and manufactured documents such letter of Assurance and the Cheque, which it has taken prior to sanction of the loan on 26.12.2006, and instituted the case under Section 138 of the NI Act with ill motive, which is barred by the law of estoppel under Section 115 of the Indian Evidence Act and ignoring the same, the learned Court below has taken cognizance against the petitioner.

(iii)