GAHC010076932024

2025:GAU-AS:5323 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : Crl.Pet./431/2024 RABENDRA DAS S/O LATE AKAN CH. DAS, RESIDENT OF AMBARI HATI BARPETA, PO AND DIST BARPETA ASSAM VERSUS UDAY CHANDRA MAZUMDAR AND ANR S/O LATE NARAYAN MAZUMDAR, RESIDENT OF BAMUNBARI, DIST BARPETA, ASSAM

2:THE STATE OF ASSAM REPRESENTED BY PP ASSA Advocate for the Petitioner : MR. U J SAIKIA, MS M DAS Advocate for the Respondent : PP, ASSAM, MR. J DEKA (R-1)

BEFORE HONOURABLE MRS. JUSTICE YARENJUNGLA LONGKUMER

ORDER

30/04/2025 This is an application under Section 397 r/w Section 482 of the CrPC praying for setting aside the Order dated 24.01.2024 and for recalling the Non-Bailable Warrant of arrest (NBWA for short) issued against the petitioner by order dated 09.02.2024 in N.I. Case No. 47/2016 by the Additional Chief Magistrate, Barpeta.

2. I have heard Mr. U. J. Saikia, learned counsel for the petitioner. It is stated that the OP No. 1 had filed a complaint Case under Section 138 of the N.I. Act before the Chief Judicial Magistrate, Barpeta, stating that the petitioner had taken an amount of Rupees 5 Lakh from the O.P 1 with a promise to return the same within the month of May, 2016. In order to repay the debt, the petitioner had issued him cheque of Rupees 5 Lakh dated 29.05.2016. As the cheque got dishonoured and the petitioner had not repaid the money on demand, the OP No. 1 had filed the case.

3. It is also stated that vide Judgment and Order dated 31.05.2017, the Additional Chief Judicial Magistrate, Barpeta, convicted the petitioner and impose SI of 3 Months and a sentence of fine of Rupees 6,50,000/- was also imposed on the petitioner. And a default clause to the effect that, he shall undergo SI for 1 Month. And the fine amount when recovered shall be awarded to the OP No. 1 as compensation under Section 357 (1) (b) of CrPC.

4. The petitioner also states that an appeal was preferred against the judgment dated 31.05.2017 before the Session Court, Barpeta, the Session Court affirmed the Judgment and Order dated 31.05.2017. Against the Order of the Sessions Court, the petitioner had filed Criminal Petition before this Court, but the same was also dismissed.

5. Accordingly, warrant of arrest was issued against the petitioner by the trial court and on 20.09.2023 the petitioner was produced before the Court of Additional Chief Judicial Magistrate, Barpeta and sent to Judicial custody to serve the sentence, as per the Judgment dated 31.05.2017.

6. The petitioner states that he was in judicial custody for 4 months and therefore, he had undergone SI for 3 months and another SI for 1 month for default in paying the fine. And he was finally released from the District Jail, Barpeta on 19.01.2024.

7. It is submitted that subsequently the OP No. 1 made an application before the Additional Chief Judicial Magistrate, Barpeta for issuing of NBWA against the petitioner, and on the basis of which the Additional Chief Judicial Magistrate, Barpeta issued notice to the petitioner vide Order dated 24.01.2024 to appear before the said Court on 09.02.2024 to undergo SI for 1 month as the petitioner has defaulted in paying the fine amount. As the notice could not be served upon the petitioner, another notice was issued fixing 18.03.2024 for his appearance.

8. The petitioner further states that his engaged counsel appeared before the court below on 18.03.2024, and sought time for appearance of the petitioner; but the prayer was rejected and NBWA was issued against the petitioner by order dated 18.03.2024. Being aggrieved by the impugned notice dated 24.01.2024 and NBWA dated 18.03.2024, the present petitioner is before this Court.

9. It is the submission of the learned counsel for the petitioner that the petitioner has already undergone the sentence of 3 months and another 1 month as he failed to pay the fine. And therefore, the impugned orders are illegal and liable to be set aside and quashed. It is also submitt