Page No.# 1/13 vs Devasish Barkakati

2025:GAU-AS:14510

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : Crl.Rev.P./476/2013

PRASANTA BORAH HOUSE NO. 12, BYE-LANE NO.1 GANDHI BASTI, GHY-3, DIST. KAMRUP M, ASSAM.

VERSUS

DEVASISH BARKAKATI PARTNER OF M/S ACE 3 MARKETING LAMB ROAD, AMBARI, GHY-1 DIST. KAMRUP M ASSAM.

Advocate for the Petitioner : MR.B K BHAGAWATI,

Advocate for the Respondent : MS.S NAZNEEN, MR.D TALUKDAR

BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR

ORDER

Date : 28-10-2025

Heard Mr. B.K. Bhagawati, learned counsel for the petitioner. Also heard Mr. D.

Talukdar, learned counsel appearing for the sole respondent.

2. The present criminal revision petition has been instituted assailing the judgment Page No.# 2/13

dated 24-09-2013 passed by the learned Addl. Sessions Judge No. 1, Kamrup (M) at

Guwahati in Crl. Appeal No. 78/2012 dismissing the same and thereby upholding the

judgment dated 16-06-2012, passed by the learned Judicial Magistrate First Class,

Kamrup, Guwahati, in C.R. Case No. 1893C/2009, convicting the petitioner, herein, under

Section 138 of the NIA Act and sentencing him to undergo simple imprisonment for 06

(six) months and to pay Rs. 19,00,000/- (Rupees Nineteen Lakhs), as compensation.

3. The respondent, herein, as complainant had instituted a complaint case being C.R.

Case No. 1893C/2009 under Section 138 of the NI Act and had contended, therein, that

he is a partner of M/s ACE-3 Marketing. It was contended in the complaint that the

petitioner, herein, as the proprietor of M/s S.B. Construction towards liquidation of his

debt had issued on 04-03-2009, 02 (two) account payee cheques bearing No. 417599 and

417600 for an amount of Rs. 3,00,000/- (Rupees Three Lakhs) and Rs. 15,81,784/-

(Rupees Fifteen Lakhs Eighty One Thousand Seven Hundred Eighty Four) respectively,

drawn on Union Bank of India, Chandmari Branch. The said 02 (two) cheques on being

presented through the respondent/ Bank, was returned unpaid and the reason cited was

"payment stopped by drawer". It was also contended that a legal notice came to be

issued to the petitioner, herein, on 24-03-2009 by registered post with A/D demanding

payment of the amount involved in the said dishonoured cheques. It was further

contended that the notice was received by the petitioner, herein, and he had replied to

the same. The amount involved in the cheques not being paid by the petitioner, herein,

the complaint case was registered.

The learned Trial Court upon appreciating the evidences coming on record, Page No.# 3/13

proceeded vide judgment dated 16-06-2012, to convict the petitioner, herein, under

Section 138 of the NI Act and sentenced him to undergo simple imprisonment for 06 (six)

months and payment of Rs. 19,00,000/- (Rupees Nineteen Lakhs) as compensation.

The petitioner, herein, being aggrieved by his conviction by the learned Trial Court

vide judgment dated 16-06-2012, assailed the same before the court of learned Sessions

Judge, Kamrup at Guwahati by way of instituting an appeal being Crl. Appeal No.

78/2012. The learned Appellate Court upon appreciating the evidences coming on record

proceeded vide judgment dated 24-09-2013 to uphold the conviction of the appellant,

herein, under Section 138 of NI Act but modified the sentencing of the appellant, to the

extent that the petitioner was now sentenced to undergo imprisonment till rising of the

court in addition to payment of compensation of Rs. 19,00,000/- (Rupees Nineteen Lakhs)

to the respondent, herein, for commission of offence under Section 138 of NI Act.

Being aggrieved, the petitioner has instituted the present proceeding.

4. Mr. B.K. Bhagawati, learned counsel for the petitioner has submitted that the

challenge in the present revision petition is limited to the ground that the complaint

petition instituted by the respondent, herein, was not maintainable in view of the

deficiency existing in the notice dated 24-03-2009 issued by the respondent, herein, to

the petitioner claiming the payment of balance amount in pursuance to the cheques

issued by the petitioner, herein, not being honoured.

5. Mr. Bhagawati has submitted that in the notice dated 24-03-2009, the claim made

was for payment of an amount of Rs. 18,91,074/- (Rupees Eighteen Lakhs Ninety One Page No.# 4/13

Thousand Seventy Four). He submits that there were 02 (two) cheques issued by the

respondent, herein, for an amount of Rs. 3,00,000/- (Rupees Three Lakhs) and Rs.

15,81,784/- (Rupees Fifteen Lakh Eighty One Thousand Seven Hundred Eighty Four)

respectively. The amount involved in the 02 (two) cheques was for Rs. 18,81,784/-

(Rupees Eighteen Lakh Eighty One Thousand Seven Hundred Eighty Four) only, however,

the petitioner while getting the notice dated 24-03-2009 issued in the matter had raised a

claim for Rs. 18,91,074/- (Rupees Eighteen Lakhs Ninety One Thousand Seventy Four),

which admittedly is not the cheque amount. He submits that the notice having not

claimed for payment of the amount involved in the cheques issued, the said notice would

fall short of its legal requirement and accordingly, the provision of Section 138 of NI Act

cannot be held to have been satisfied in the matter and the complaint was required to be

dismissed. In support of his submissions Mr. Bhagawati has relied upon the decisions of

the Hon'ble Supreme Court rendered in the case of Suman Sethi Vs. Ajay K. Churiwal

& Anr. reported in (2000) 2 SCC 380 and Kaveri Plastics Vs. Mahdoom Bawa

Bahrudeen Noorul, reported in 2025 0 Supreme(SC) 1712.

6. In the above premises, Mr. Bhagawati submits that the notices issued in the matter

being not in consonance with the Proviso (b) to Section 138 of NI Act, the said notice

having fallen short of its legal requirement and the demand not being made of the

amount involved in the cheque, the very complaint case instituted by the respondent,

herein, before the learned Trial Court would not be maintainable and accordingly, the

impugned judgment passed by the learned Trial Court as well as that passed in the matter

by the learned Appellate Court would mandate interference.

Page No.# 5/13

7. Mr. Bhagawati has further submitted by referring to the provision of Section 69 of

the Indian Partnership Act, 1932 (in short "Act of 1932") that Sub-Section (2) of Section

69 mandates that no suit to enforce a right arising from a contract shall be instituted in

any Court by or on behalf of a firm against any third party unless the firm is registered

and the persons suing are or have been shown in the Registrar of Firms as partners in the

firm. He submits that the respondent, herein, as complainant while instituting the

complaint case before the learned Trial Court had not brought on record any material to

demonstrate that his firm was a registered firm. Accordingly, he submits that the

complaint as instituted by the respondent, herein, being hit by the provision of Section

69(2) of the Act of 1932, the complaint was not maintainable.

8. Per contra, Mr. D. Talukdar, learned counsel for the respondent by taking this Court

through the notice dated 24-03-2009 has submitted that in the said notice in paragraph 1,

the breakup of the amount receivable from the petitioner, herein, was set out and it was

highlighted therein, that the cheque amount was to the tune of Rs. 18,81,784/- (Rupees

Eighteen Lakh Eighty One Thousand Seven Hundred Eighty Four). It was further

stipulated in paragraph 1 of the said notice that a further amount of Rs. 9,290/- (Rupees

Nine Thousand Two Hundred Ninety) being receivable by the petitioner, herein, the same

was separately set out. He submits that the cheque amount involved was also again spelt

out in paragraph 2 of the said notice. Accordingly, he submits that the notice having

specified the cheque amount along with a further additional amount receivable by the

respondent, herein, from the petitioner and the cheque amount plus the additional

amount receivable being separable, the said notice cannot be said to be void and the Page No.# 6/13

same has to be held to have issued in compliance with the Proviso (b) to Section 138 of

NI Act.

9. Mr. Talukdar, in support of his submission has also placed reliance on the decision

of the Hon'ble Supreme Court rendered in the case of Suman Sethi (Supra). He

submits that in the notice a breakup of the cheque amount as well as the additional

amount claimed having been spelt out, the notice cannot be held to be have been

invalidated in view of the demand made therein for payment of an amount higher than

the cheque amount. Accordingly, he submits that the judgment dated 16-06-2012 passed

by the learned Trial Court as well as the judgment dated 24-09-2013, would not mandate

any interference.

10. Mr. D. Talukdar responding to the contentions raised by the learned counsel for the

petitioner that the complaint was not maintainable in view of the fact that the respondent

firm was not a registered one, submits that the said contention is clearly without any

basis, inasmuch as, the firm M/s ACE-3 Marketing was a registered partnership firm and

the names of the partners were duly indicated before the Registrar of Firms. He further

submits that the said issue was never raised by the petitioner, herein, either before the

learned Trial court nor before the learned Appellate Court.

11. I have heard the submission of learned counsel for the parties and also perused

the materials available on record.

12. This Court at the outset would notice the conclusions reached in the matter by the

learned Trial Court. The learned Trial Court upon appreciating the evidences coming on Page No.# 7/13

record had drawn a conclusion to the effect that the cheques in question were issued by

the petitioner, herein, for liquidating a legally enforceable debt. The said position is not

disputed by the learned counsel for the petitioner in the present proceeding. Accordingly,

the said issue would not mandate further consideration by this Court and the conclusions

that the cheques in question were issued by the petitioner, herein, to the respondent in

discharge of legally enforceable debt stands affirmed.

13. Having drawn the above conclusions, this Court would now consider the contention

raised by the learned counsel for the petitioner that the notice issued on 24-03-2009

pursuant to the cheques involved being dishonoured by the Bank, having not demanded

payment of the cheque amount, the said notice was void being in violation of the Proviso

(b) to Section 138 of NI Act.

14. This Court has perused the notice dated 24-03-2009. On perusal of the said notice,

it is found that in paragraph 1 of the said notice, it was projected that the debt receivable

by the respondent from the petitioner was an amount of Rs. 23,91,074/- (Rupees Twenty

Three Lakh Ninety One Thousand Seventy Four). It is further projected that an amount of

Rs. 5,00,000/- (Rupees Five Lakh) was paid as advance and the residual amount of Rs.

18,81,784/- (Rupees Eighteen Lakh Eighty One Thousand Seven Hundred Eighty Four)

was paid by cheque. The said notice also projected that a further amount of Rs. 9,290/-

(Rupees Nine Thousand Two Hundred Ninety) was to be paid in cash or by cheque after

completion of the work. The notice in paragraph 2 has again split out the amount involved

in the cheque. In terms of the projection made in paragraph 2, 02 (two) cheques were

issued to the respondent, herein, by the petitioner for an amount of Rs. 3,00,000/-

Page No.# 8/13

(Rupees Three Lakh) and Rs. 15,81,784/- (Rupees Fifteen Lakh Eighty One Thousand

Seven Hundred Eighty Four) respectively, vide two cheques both dated 04-03-2009 drawn

on Union Bank of India, Chandmari Branch. The said notice further projects that the

cheques were dishonoured in view of the "stop payment" instruction issued by the

petitioner, herein, to his Bank and it also projects that on the date when the cheques

were deposited for clearance, the petitioner, herein, had a cumulative total deposit of Rs.

1957.36 (Rupees One Thousand Nine Hundred Fifty Seven and Thirty Six paise) in his

account. Having spelt out the said particulars, the notice demanded payment of the

outstanding balance of Rs. 18,91,074/- (Rupees Eighteen Lakh Ninety One Thousand

Seventy Four). The said amount of Rs. 18,91,074/- (Rupees Eighteen Lakh Ninety One

Thousand Seventy Four) is the total cheque amount of Rs. 18,81,784/- (Rupees Eighteen

Lakh Eighty One Thousand Seven Hundred Eighty Four) and the balance receivable by the

respondent, herein, of Rs. 9,290/- (Rupees Nine Thousand Two Hundred Ninety).

Cumulative reading of the notice would reveal that the respondent, herein, while

demanding the payment of outstanding balance of Rs. 18,91,074/- (Rupees Eighteen

Lakh Ninety One Thousand Seventy Four) had set out the breakup of the amount in the

notice itself and the cheque amount involved was also separately shown.

15. The Hon'ble Supreme Court in its decision rendered in the case of Suman Sethi

(Supra) with regard to the validity of a notice issued under Proviso (b) to Section 138 of

NI Act had laid down as follows:-

6. We have to ascertain the meaning of the words "said amount of money"

occurring in clause (b) and (c) to the proviso to Section 138. Reading the Section as a whole we have no hesitation to hold that the above expression refers to the Page No.# 9/13

words "payment of any amount of money" occurring in main Section 138 i.e. the cheque amount. So in notice, under clause (b) to the proviso, demand has to be made for the cheque amount. Dr. Dhawan, learned senior counsel has urged that Section 138 being a penal provision has to be construed strictly. We may refer the decision of this Court in M. Narayanan Nambiar v. State of Kerala1. This Court considered the rule of construction of a penal provision and quoted with approval the following passage of the decision of the Judicial Committee in Dyke v. Elliot 2. The passage runs as follows:

"No doubt all penal Statutes are to be construed strictly, that is to say, the Court must see that the thing charged as an offence is within the plain meaning of the words used, and must not strain the words on any notion that there has been a slip, that there has been a casus omissus, that the thing is so clearly within the mischief that it must have been intended to be included if thought of. On the other hand, the person charged has a right to say that the thing charged although within the words, is not within the spirit of the enactment. But where the thing is brought within the words and within the spirit, there a penal enactment is to be construed, like any other instrument, according to the fair commonsense meaning of the language used, and the Court is not to find or make any doubt or ambiguity in the language of a penal statute, where such doubt or ambiguity would clearly not be found or made in the same language in any other instrument."

7. There is no ambiguity or doubt in the language of Section 138. Reading the entire Section as a whole and applying commonsense, from the words, as stated above, it is clear that the legislature intended that in notice under clause (b) to the proviso, the demand has to be made for the cheque amount. According to Dr. Dhawan, the notice of demand should not contain anything more or less than what is due under the cheque.

8. It is well settled principle of law that the notice has to be read as a whole. In the notice, demand has to be made for the "said amount" i.e. cheque amount. If no such demand is made the notice no doubt fall short of its legal requirement. Where in addition to "said amount" there is also a claim by way of interest, cost etc. whether the notice is bad would depend on the language of the notice. If in a notice while giving up break up of the claim the cheque amount, interest, damages etc. are separately specified, other such claims for interest, cost etc. would be superfluous and these additional claims would be severable and will not invalidate the notice. If, however, in the notice an omnibus demand is made without specifying what was due under the dishonored cheque, notice might well fail to meet the legal requirement and may be regarded as bad.

16. The Hon'ble Supreme Court in the case of Kaveri Plastics (Supra) had in

paragraph 8, laid down as follows:-

Page No.# 10/13

"8. From the afore-stated reiterative pronouncements and the principles propounded by the courts, the position of law that emerges is that the notice demanding the payment of the amount covered by the dishonoured cheque is one of the main ingredients of the offence under Section 138 of the NI Act. In the event of the main ingredient not being satisfied on account of discrepancy in the amount of cheque and one mentioned in the notice, all proceedings under Section 138 of the NI Act would fall flat as bad in law. The notice to be issued under Proviso (b) to Section 138 of the Act, must mention the same amount for which the cheque was issued. It is mandatory that the demand in the statutory notice has to be the very amount of the cheque. After mentioning the exact cheque amount, the sender of the service may claim in the notice amounts such as legal charges, notice charges, interest and such other additional amounts, provided the cheque amount is specified to be demanded for payment."

17. Applying the decisions of the Hon'ble Supreme Court in the above noted cases, to

the facts of the present case, this Court finds that the statutory notice issued by the

respondent, herein, under Proviso (b) to Section 138 of NI Act while demanding an

amount of Rs. 18,91,074/- (Rupees Eighteen Lakh Ninety One Thousand Seventy Four),

the break up of the cheque amount was separately shown and the same being clearly

severable from the further amount claimed, the notice cannot be held to have not met the

legal requirement. The cheque amount having been clearly specified in the notice, the

payment thereof by the petitioner, herein, would have absolved him from the criminal

liability under Section 138 of NI Act and the balance amount involved would not have

been impermissible to be so recovered by way of instituting proceedings under Section

138 of the NI Act. In view of the above conclusions, this Court is of the considered view

that the notice issued by the respondent under Proviso (b) to Section 138 of NI Act when

read as a whole, the amount demanded, therein, also being so made for the amount

involved in the cheque, by clearly specifying the cheque amount due, the said notice

cannot be held, as contended by the learned counsel for the petitioner, to have been Page No.# 11/13

issued in violation of the Proviso (b) to Section 138 of NI Act. Accordingly, the contention

raised by the learned counsel for the petitioner with regard to the validity of the notice

stands rejected.

18. Having drawn the said conclusions, this Court would now consider the contention

raised by the learned counsel for the petitioner, that the complaint case instituted by the

respondent, herein, would not be maintainable being hit by Sub-Section 2 of Section 69 of

the Indian Partnership Act. The provisions of Section 69 of the Indian Partnership Act,

1932 being relevant, the same is extracted, here-in-below, for ready reference:-

"69. Effect of non-registration.--(1) No suit to enforce a right arising from a contract or conferred by this Act shall be institutes in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm.

(2) No suit to enforce a tight arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm.

(3) The provisions of sub-sections (1) and (2) shall apply also to a claim of set-off or other proceeding to enforce a right arising from a contract, but shall not affect--

(a) the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or a ay right or power to realise the property of a dissolved firm, or

(b) the powers of an official assignee, receiver or Court under the Presidency-towns Insolvency Act, 1909 (2 of 1909), or the Provincial Insolvency Act, 1920 (5 of 1920), to realise the property of an insolvent partner.

(4) This section shall not apply--

(a) to firms or to partners in firms which have no place of business in 1 [the territories to which this Act extends], or whose places of business in 2 [the said territories] are situated in areas to which, by notification under [section 56], this Chapter does not apply, or Page No.# 12/13

(b) to any suit or claim of set-off not exceeding one hundred rupees in value which, in the Presidency-towns, is not of a kind specified in section

19 of the Presidency Small Cause Courts Act, 1882 (15 of 1882), or, outside the Presidency-towns, is not of a kind specified in the Second Schedule to the Provincial Small Cause Courts Act, 1887 (9 of 1887), or to any proceeding in execution or other proceeding incidental to or arising from any such suit or claim."

19. Perusal of the provisions of Sub-Section (2) of Section 69 of the Act of 1932,

reveals that for institution of a suit by a firm against any third party, the same would be

so permissible provided the firm is registered and the persons showing or are have been

show in the Registrar of Firms as partners of the firm. The said issue was never raised by

the petitioner, herein, before the learned Trial Court. The only suggestion put to the

respondent, herein, during the cross-examination was to the effect that the complaint was

filed without the consent of the partners of the firm, which was categorically denied by

the respondent, herein. The petitioner, herein, in the appeal filed in the matter had not

raised the present contention with regard to the provisions of Section 69 of the Act of

1932. The respondent, herein, in his evidence on affidavit had clearly stated that he was

a partner of M/s ACE-3 Marketing. It having not been demonstrated by the petitioner,

herein, that the respondent firm was not a registered firm, this Court is of the considered

view that the contention raised by the learned counsel for the petitioner of the complaint

filed by the respondent, herein, to be hit by the provisions of Sub-Section (2) of Section

69 of the Act of 1932 would not mandate acceptance.

20. In view of the above discussions, this Court is of the considered view that the

respondent, herein, had satisfied the provision of Section 138 of the NI Act and the

complaint petition instituted was accordingly, maintainable. The conviction of the Page No.# 13/13

petitioner, herein, under Section 138 of the NI Act passed by the learned Trial Court as

well as by the learned Appellate Court is maintainable.

21. Consequently, the conviction of the petitioner, herein, under Section 138 NI Act

stands affirmed. The learned Appellate Court vide its judgment dated 24-09-2013 had

modified the sentencing of imprisonment as imposed by the learned Trial Court vide

judgment dated 16-06-2012, this Court is of the considered view that the same also

would not mandate any interference. Accordingly, the petitioner is now required to

deposit the amount of compensation imposed upon him by the learned Trial Court and

upheld by the learned Appellate Court.

22. The petitioner, herein, shall deposit the compensation amount of Rs. 19,00,000/-

(Rupees Nineteen Lakhs), within a period of 03 (three) months from today, before the

learned Trial Court and the learned Trial Court shall release the same to the respondent,

herein.

23. Registry to send back the TCR along with a copy of this order for information and

necessary action.

JUDGE

Comparing Assistant