The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.812 of 2024 (In the matter of an application under Section 482 of the Criminal Procedure Code, 1973) ----------- Akhaya Kumar Nayak ……. Petitioner -Versus- Smt. Swarupa Subhadarshini Dutta ……. Opp. Party For the Petitioner : Mr. Suryakanta Dwibedi, Advocate For the Opp. Party : None CORAM:
Legal Reasoning
perusal of the complaint, prima facie case is made out. 10. Keeping the aforementioned in view, I am of the considered view that the petition deserves no merit and the learned Trial Court has rightly taken cognizance of the offence under Section-138 of the N.I. Act and issued summons to the petitioner. 11. The CRLMC is accordingly dismissed. ……………… S.S. Mishra (Judge) Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: P.A. Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 22-Mar-2024 19:32:41 Page 6 of 6
Arguments
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA JUDGMENT _________________________________________________________ Date of Hearing: 21.03.2024 : Date of Judgment : 22.03.2024 _________________________________________________________ S.S. Mishra, J. 1. The petitioner is the accused in ICC Case No.47/57 of 2023 filed by the opposite party under Section 138 of the Negotiable Instruments Act (In short “N.I. Act”) 2 2. The petitioner had issued a cheque of Rs.3,00,000/- in favour of the opposite party and on presentation, the petitioner’s bank have returned the cheque for having insufficient of funds in the account of the petitioner. Therefore, the opposite party is prosecuting the petitioner by filing complaint case. 3. On 03.08.2023, the learned S.D.J.M., Baripada has taken cognizance of the offence under Section 138 of the N.I. Act and issued summon to the petitioner. The petitioner is aggrieved and challenged the said order in the present petition. 4. Mr. Dwibedi, learned counsel appearing for the petitioner submits that the complaint is not maintainable, in view of the fact that the cheque was presented beyond the valid period. He has pointed out from the date chart of the complaint petition that although, the cheque was issued on 03.01.2023, but the cheque was presented on 04.04.2023, which is beyond the valid period. To substantiate his argument, he has relied upon the judgment of the Hon’ble Supreme Court in the case of S.L. Construction & another vs. Alapati Srinivasa Rao & another reported in (2009) 42 OCR (SC)-303. He has emphasized para-19 which reads as under: “19. For the said purpose a legal fiction was created. The proviso appended to the said provision, however, restricts the application Page 2 of 6 3 of the main provision by laying down the conditions which are required to be complied with before any order taking cognizance can be passed which are; (i) that the cheque must be presented within a period of six months from the date on which it is drawn; (ii) on the cheque being returned un-paid by the banker, a notice to be issued within thirty days from the date of receipt of information by him from the bank regarding the cheque being unpaid; (iii) in the event, the drawer of the cheque fails to make payment of the said amount of money to be paid within fifteen days from the receipt thereof, a complaint petition can be filed within the period prescribed in terms of Section 142 thereof.” 5. To appreciate the facts of the present case, the following dates and events enumerated herein are relevant. 03.01.2023 - The cheque bearing No.028859 drawn on Union Bank, Pattamundai Branch, Kendrapara for an amount of Rs.3,00,000/- was issued by the petitioner in favour of the opposite party allegedly in lieu of returning the loan amount he had obtained. 04.04.2023 - The cheque was presented to the bankers of the petitioner. However, due to insufficient of funds, the cheque was dishonoured and an intimation slip regarding the same was issued by the bank on 04.04.2023. 06.04.2023 - The opposite party issued a statutory notice under Section 138 of the N.I. Act. Page 3 of 6 4 19.04.2023 - The petitioner received legal notice, but did not reply to the same. 12.05.2023 - The opposite party filed the complaint case before the court of the learned S.D.J.M., Baripada. 6. The dates and events mentioned above are culled-out from the complaint petition. It is an admitted fact that despite receiving the statutory notice under Section- 138 of the N.I. Act, the petitioner has not replied to the same. 7. The only contention of Mr. Dwibedi, learned counsel for the petitioner is that the cheque was presented beyond the valid period, which expired on 03.04.2023 according to him. This contention of learned counsel for the petitioner is found to be wrong for two reasons. Firstly, the bank has accepted the cheque, as it was presented within the validity period of the cheque and returned the same due to insufficient of funds in the account of the petitioner. Secondly, on 04.04.2023, the intimation slip was issued by the bank, which indicates that the cheque was presented prior to 04.04.2023. 8. In view of the fact that the petitioner has not even filed the reply to the statutory notice and the fact that he has not disputed regarding issuance of the cheque by him at the first available opportunity, the Page 4 of 6 5 statutory presumption under Section 139 of the N.I. Act operates against him. In so far as the judgment of S.L. Construction (supra) relied upon by learned counsel for the petitioner is concerned, the said judgment is squarely inapplicable to the facts of the present case because in that case, the cheque was repeatedly presented for three times and twice the statutory notice was issued. On the facts scenario of that case, the Hon’ble Supreme Court has ruled that the cheque was required to be deposited within the valid period of six months. Therefore, the judgment cited by Mr. Dwibedi will not enure to his benefit. 9. The averments made in the complaint petition and the other documents relied upon by the opposite party to substantiate a case under Section 138 of the N.I. Act against the petitioner indicates that a prima facie case is made out under section 138 N.I. Act against the petitioner / accused. The Hon’ble Supreme Court in the case of Dhanalakshmi vs. R. Prasanna Kumar & others, reported in 1990 Supp SCC 686 has laid down the principle of law, inter alia, stating that when there are specific allegation in the complaint disclosing the ingredient of the offence taken cognizance of, quashing of the proceeding by exercising jurisdiction Page 5 of 6 6 under Section 482 Cr.P.C. by the High Court is illegal. Apart from the aforesaid judgment, there is catena of judgments of various High Courts as well as of the Hon’ble Supreme Court laying down the principle regarding the scope of jurisdiction under Section 482 Cr.P.C. for quashing the cognizance order in a complaint case wherein from the