The High Court
Case Details
IN THE THE HIGH COURT OF ORISSA AT CU AT CUTTACK CRLMC No. 3464 of 2017 shra Prafulla Mishra …. Appellant Mr. Suryakant yakanta Dwibedi Advocate -versus- Laba Mallick …. Respondent R Mr. Abhila Abhilash Mishra Advocate CORAM: THE HON’BLE BLE MR. JUSTICE CHITTARANJAN D JAN DASH Date of Judgment: 30.06.2025 Chittaranjan Dash, 1. By mean ash, J. means of this application, the Petitio Petitioner seeks indulgence of this f this Court, for quashing/setting aside the e the order dated 03.08.2017 passed passed by the learned S.D.J.M., Sonepur in pur in ICC Case 7 under Annexure-1. No.2 of 2017 unde 2. The backg
Legal Reasoning
background facts of the case are that the at the Petitioner,
Legal Reasoning
Smt. Prafulla Mis la Mishra, was arrayed as one of the co he co-accused in I.C.C. Case No. 2 No. 2 of 2017 pending before the learned learned S.D.J.M., Sonepur, for alleg r alleged commission of an offence punish punishable under Section 138 of 8 of the Negotiable Instruments Act, Act, 1881. The complainant, Laba , Laba Mallick (Opposite Party No. 2), a . 2), alleged that accused no.1, son 1, son of the Petitioner, purchased a piece o iece of land for a CRLMC No. 3464 of 64 of 2017 Page 1 of 7 consideration of n of ₹15,40,000/- in the name of accused cused No. 2 (the Petitioner). Of the Of the total amount, ₹6,40,000/- was paid in paid in cash, and the remaining ₹9 ₹9,00,000/- was paid by two post-date dated cheques drawn on the account of accused No. 1. Howe the a However, upon presentation to th to the bank, both cheques were dishonou honoured due to insufficient funds, funds, which was communicated to the com e complainant on 04.01.2017. Despi pite receiving a legal demand notice on ice on 28.01.2017 asking them to pa to pay the dishonoured amounts within th thin the statutory period, the accuse ccused failed to do so. Consequently, the c , the complainant instituted the pre e present proceedings before the learned earned S.D.J.M., Sonepur, who took o took cognizance of the offence under Sec er Section 138 of the N.I. Act again against the Petitioner as well. Being aggrie aggrieved by the order of cognizan gnizance, the Petitioner has approached thi ed this Court by filing the present resent CRLMC under Section 482 of the f the Cr.P.C. for quashing of the en the entire criminal proceedings on the grou e ground that she is neither the draw e drawer nor signatory of the dishonoured c ured cheques and ld vicariously liable under the law. cannot be held vica 3. Mr. Dwibe Dwibedi, appearing on behalf of the Petition etitioner submits that she is only the nly the mother of the co-accused and was no was not a party to the underlying tran ng transaction nor to the dishonoured instru instruments. The record demonstrat nstrates that the post-dated cheques were were drawn and issued by accused ccused No. 1, and the Petitioner neither either signed the cheques nor maint intained the account upon which they w they were drawn. Mr. Dwibedi asse i asserts that the Petitioner cannot be fas be fastened with criminal liability u ility under Section 138 of the Negotiable I iable Instruments Act, 1881, which hich requires that the person who “draws” raws” the cheque is liable upon its d n its dishonour. He further states that vicario vicarious liability CRLMC No. 3464 of 64 of 2017 Page 2 of 7 under the N.I. Ac .I. Act is statutorily attracted only in cases cases involving companies or jurid r juridical persons, not in situations like the e the present one where the Petition etitioner is merely a family member. Mere Mere registration of the property in rty in her name cannot imply criminal intent intent or liability under the N.I. Act .I. Act. Mr. Dwibedi submits that the compla complaint and the
Decision
order cognizance order lack any specific allegations a ons against the Petitioner, and th and the Magistrate took cognizance me ce mechanically, without appreciatin reciating the absence of the Petitioner’s role s role as a drawer or signatory. Th y. The learned counsel presses that all at allowing the proceedings to co to continue against the Petitioner would c ould cause undue harassment and de and defeat the ends of justice and prays ys to quash the order of cognizan nizance dated 03.08.2017 and all proceedi oceedings against the Petitioner. 4. Mr. Mishra Mishra, learned counsel for the Opposite Pa site Party, argues that the criminal p inal proceedings initiated under Section 13 tion 138 N.I. Act are fully justified stified as the Petitioner was the named pur ed purchaser and direct beneficiary ficiary of the transaction; thus, her role role cannot be overlooked. He fu He further argues that the dishonoured ch red cheques were issued to satisfy atisfy the balance sale consideration for n for a property registered in her n her name, making her an active particip articipant in the transaction. Mr. M Mr. Mishra contends that the plea that sh that she is not a signatory cannot a nnot absolve her as she is vicariously liabl y liable. Whether she was involved olved in the transaction and liable along w ong with accused No. 1 is a factual actual issue to be decided at trial. Mr. Mis r. Mishra further places that the le the learned Magistrate rightly took cogni cognizance after considering the ma the material placed on record, and there is n re is no abuse of process justifying ifying quashment, and this petition is hence hence liable to be CRLMC No. 3464 of 64 of 2017 Page 3 of 7 dismissed to allow allow the trial to proceed in accordance wi ce with law. Mr. Mishra relied on on relied on the decision in the matters of of S.P. Mani and Mohan Da Dairy Vs. Snehalatha Elangovan, n, reported in MANU/SC/1189/2 1189/2022, State of Haryana and Other thers Vs. Ch. Bhajan Lal and o nd others reported in AIR 1992 SC 604, 604, and Laxmi Dyechem –Vrs.- State of Gujurat and others reported in rted in 2013 (13) SCC 375. 5. For ready ready reference and better appreciation o tion of the legal position, the relev relevant provision of Section 138 of the f the Negotiable Instruments Act, 1 Act, 1881, is extracted hereinbelow: 138. Disho funds in th person on banker for another pe discharge, liability, i because of of that acco that it exce that accoun such perso offence an provision o for [a term with fine w the cheque Dishonour of cheque for insufficiency, etc s in the account.—Where any cheque drawn on on an account maintained by him wi er for payment of any amount of mone her person from out of that account for arge, in whole or in part, of any debt or lity, is returned by the bank unpaid, e use of the amount of money standing to the c at account is insufficient to honour the cheq it exceeds the amount arranged to be paid account by an agreement made with that b person shall be deemed to have committe ce and shall, without prejudice to any ision of this Act, be punished with imprison a term which may be extended to two years fine which may extend to twice the amou heque, or with both: cy, etc., of drawn by a im with a money to nt for the bt or other aid, either o the credit e cheque or paid from that bank, mmitted an any other prisonment years’], or amount of Provided th apply unles ided that nothing contained in this section y unless— ection shall e cheque has been presented to the bank wit (a) the cheq d of six months from the date on which period of n or within the period of its validity, which drawn or w rlier; is earlier; nk within a which it is whichever CRLMC No. 3464 of 64 of 2017 Page 4 of 7 (b) the pa cheque, as payment o notice; in [within thi him from t as unpaid; the payee or the holder in due course of ue, as the case may be, makes a demand fo ent of the said amount of money by givi e; in writing, to the drawer of the chequ in thirty days] of the receipt of informatio from the bank regarding the return of the ch paid; and rse of the and for the y giving a cheque, 5 rmation by the cheque the drawer of such cheque fails to make ent of the said amount of money to the paye e case may be, to the holder in due course o ue, within fifteen days of the receipt of the make the e payee or, urse of the of the said (c) the dr payment of as the case cheque, wi notice. Explanatio of other lia other liabil anation.—For the purposes of this section, “ her liability” means a legally enforceable de r liability. tion, “debt ble debt or 6. Considerin sidering the aforesaid provision, it is ev is evident that liability under Sec er Section 138 N.I. Act rests solely upon upon the person who has drawn the wn the cheque on an account maintained by ed by him. In the present case, there , there is no material on record to connect th ect the petitioner with the dishonou honoured cheques, as it is undisputed that d that they were drawn and signed signed by her son, Ramakanta Mishra, fro ra, from his own account. The statu e statutory scheme underscores that only the nly the drawer of the cheque can be can be held liable for its dishonour. The p The petitioner is neither a signatory natory to the instruments nor a partner in an r in any business nor in any manne manner associated with the account or tra or transaction in question. Thus, t hus, there exists no legal basis to invok invoke criminal liability under Sec er Section 138 of the N.I. Act against the pet petitioner, and the continuation of 7. The dishon tion of proceedings against her is unsustainab stainable in law. dishonoured cheques in question, bearing c ring cheque Nos. 000021 dated 13 ed 13.10.2016 for ₹5,00,000/- and 000 000022 dated 13.10.2016 for for ₹4,00,000/-, were both drawn on HD on HDFC Bank, CRLMC No. 3464 of 64 of 2017 Page 5 of 7 Sonepur Branch, b anch, by accused No. 1, Ramakanta Mishra Mishra, from his account bearing N ring No. 50100002272557. The petitioner ioner herein, , is the mother of the of the drawer and was merely the registere gistered owner of the purchased prop d property. The transaction was conducted ucted entirely by her son and all liab all liabilities arising from the dishonour of t ur of the cheques as the drawer. lie upon him as the 8. The record record also indicates that the petitioner was r was neither the signatory nor the r the account-holder of the dishonoured ch red cheques, and the property was was purchased in her name at the behest ehest of accused No. 1. No material aterial has been produced to show any active active role of the petitioner in the fi the financial transaction, and as such, liabi h, liability cannot be fastened upon upon her under Section 138 of the the Negotiable Instruments Act, 1 Act, 1881, especially when the cognizance t ance taken is not rovision of the IPC. under any provisio 9. The decis decisions referred by the learned couns counsel for the Opposite Parties a rties are factually distinguishable and do n do not apply to the present case. I case. In S.P. Mani and Mohan Dairy vs. S vs. Snehalatha Elangovan, the ma the matter involved a partnership firm, whic , which is not the factual situation h tion here. Similarly, the decision in State o ate of Haryana and Others vs. C vs. Ch. Bhajan Lal and Others lays d lays down broad guidelines for the e or the exercise of jurisdiction under Section 4 ction 482 Cr.P.C. While those princi principles are well-settled and undisputed, th ted, they have no bearing on the pres he present controversy, given the distinct fac ct factual matrix. Further, the decisi decision in Laxmi Dyechem v. State of G of Gujarat and Others, pertains t tains to a case where the dishonour arose arose due to the drawer’s signature nature not matching the specimen held by ld by the bank, a situation entirely d irely different from the present matter. CRLMC No. 3464 of 64 of 2017 Page 6 of 7 10. Consequen sequently, the facts enumerated in the cited e cited decisions have no relevance vance to the present set of circumstances. In es. In view of the above, none of the of the judgments relied upon by the Opposit pposite Parties is applicable to the o the facts of the present case and theref therefore cannot advance their case ir case. On the contrary, the cognizance tak nce taken against the petitioner, bein r, being neither in conformity with law nor aw nor supported by the facts on rec 11. 12. According The learne on record, deserves to be quashed. ordingly, the order dated 03.08.2017 is set as set aside. learned trial court is directed to proceed wi eed with the case against the remain emaining accused as expeditiously as possib possible, keeping in view that the ma the matter pertains to the year 2017. (Chittaranjan Da an Dash) Judge Bijay Signature Not Verified Digitally Signed Signed by: BIJAY KETAN SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA Date: 01-Jul-2025 15:17:46 CRLMC No. 3464 of 64 of 2017 Page 7 of 7