The High Court
Case Details
IN THE THE HIGH COURT OF ORISSA AT CU T CUTTACK CRLMC No. 1668 of 2023 Ashim Kumar Gh ar Ghosh …. Petitioner Mr. D.R. Swain Swain, Advocate -versus- Hafiz Khan …. Opp. Party Mr. S.K. Barala, arala, Advocate CORAM: THE HON’BLE BLE MR. JUSTICE CHITTARANJAN D JAN DASH Date of Judgment: 23.07.2025 Chittaranjan Dash, ash, J. 1. 2. Heard learn rd learned counsel for the Parties. By means means of this application, the Petitioner titioner seeks to challenge the orde e order of cognizance dated 17.02.2020, pas passed in 1CC Case No.74 of 202 of 2020 by the learned S.D.J.M., Jajpur. 3. The backg
Legal Reasoning
background facts of the case are that the Co the Complainant, Hafiz Khan filed a filed a complaint petition before the learned learned S.D.J.M., Jajpur registered a ered as 1CC Case No.74 of 2020, under Sec er Section 138 of the Negotiable Ins le Instruments Act, 1881 (hereinafter referre referred to as the N.I. Act), praying raying to take cognizance and issue process rocess against the Petitioner as accus accused to stand the trial and to punish him h him adequately directing the Petiti Petitioner-accused to pay double the cheque cheque amount to CRLMC No. 1668 of of 2023 Page 1 of 6 the Complainan inant, as liable under the N.I. Act, besides the punishment as the as the court would deem fit and proper. 4. As allege alleged in the complaint, the Oppos Opposite Party- Complainant is hav t is having his fruit business at Jajpur Town. Town. In order to keep his fruits fres its fresh, he availed the services of the cold e cold storage of the Petitioner-accu accused, run in the name and style of “ le of “Chakadola Shitala Bhandar”. ndar”. According to the complaint, one Ash ne Ashim Kumar Ghosh (present sent Petitioner) and Jyotsnarani Nanda Nanda are the proprietors of the of the said cold storage and the accused No sed No.3 namely, Amiya Ranjan Mo an Mohanty is the manager. The Complaina plainant kept 53 boxes of apple we ple weighing 1590 K.Gs. on 26.09.2019 and 19 and again 105 boxes of appeal w peal weighing 3150 K.Gs. on 15.10.2019. T 019. The accused No.3 namely, Ami y, Amiya Ranjan Mohanty issued two differe different receipts in favour of the Co the Complainant against deposit of apple bo ple boxes. When the Complainant w inant went to the aforesaid cold storage to rage to bring the apple boxed on 03 on 03.12.2019, he found missing 158 boxe 8 boxes of apple. The accused No.3, No.3, in order to save his skin, could not gi not give a proper explanation with r with regard to the missing of 158 boxes of xes of apple and finally admitted to tted to have sold it out. Accordingly, after a fter a long chase, the accused No.3 i No.3 issued a cheque in lieu of the cost of 15 st of 158 boxes of apple amounting nting to Rs.3,16,000/- (Rupees Three Lakh e Lakhs Six-teen Thousand only) dr nly) drawn on Axis Bank, Dumuduma bear a bearing cheque No.807446 dated dated 23.12.2019 in favour of the Compla omplainant to be collected from his m his account i.e. the Account No. 914010 14010003375393 belong to accused cused No.3 and requested the Complainant lainant to deposit the same for c for collection after 20.01.2020. Accord ccordingly, the Complainant pres t presented the said cheque on 20.01.202 01.2020 with his CRLMC No. 1668 of of 2023 Page 2 of 6 banker i.e. United nited Bank of India, Jajpur Branch for col for collection but the cheque got di got dishonoured with remark “Account Cl unt Closed”. The Payee Bank intim intimated the fact of dishonour of che f cheque to the Complainant. The The Complainant, thereafter, issued lega d legal notice to the accused No.3 No.3 demanding the dishonoured cheque a que amount vide lawyer’s notice da ice dated 27.01.2020. As the accused No.3 fa No.3 failed to pay the dishonoured c ured cheque amount within the statutory utory period, the Complainant lodge t lodged the complaint. 5. The Petitio Petitioner, namely Ashim Kumar Ghosh, sh, assails the impugned order ta rder taking cognizance of the complaint alleg nt alleging him to be the proprietor o ietor of the aforesaid cold storage, namely “ mely “Chakadola Shitala Bhandar,” ndar,” on the ground that he has no s no connection whatsoever with with the said cold storage, nor has any y document, correspondence, o nce, or transaction ever been made be de between the Complainant and t and him, either as its proprietor or oth or otherwise. He further assails the ils the impugned order on the ground that d that, while the Complainant nam t names both him and one Jyotsnarani arani Nanda as proprietors of the a f the aforesaid cold storage, no document of ent of any nature showing two pers o persons as proprietors has been filed alon d along with the complaint. He furt e further challenges the impugned order of der of cognizance on the ground that d that the cheque in question was neither iss her issued by him nor has he engag engaged any Amiya Ranjan Mohanty as m ty as manager to manage the said co said cold storage. The cheque annexed to the to the complaint purports to have b have been issued under the signature of Am of Amiya Ranjan Mohanty against against his Account No. 1665250000 50000444, and , accordingly, in in the absence of any supporting rting document whatsoever, the im the implication of the Petitioner as an accu n accused in 1CC CRLMC No. 1668 of of 2023 Page 3 of 6 Case No. 74 of 4 of 2020 is not only unwarranted but a but also illegal. Hence, he seeks seeks the intervention of this Court to rt to quash the impugned order in cused. rder insofar as it relates to him as an accused. 6. The learne learned counsel for the Opposite Party, ap appearing on behalf of the Com e Complainant, did not come out with any th any document and/or material to rial to substantiate the involvement of the of the Petitioner either as a propri proprietor or otherwise to implicate him him vicariously under Section 141 n 141 of the N.I. Act to make him liable for le for any reason either as proprieto prietor or the person to have issued the che he cheque and/or showing any resp y responsibility in the affairs and managem nagement of the cold storage. 7. In order to er to file a valid complaint under Section ection 138 of the N.I. Act, the follow 1. The cheque m following conditions are required to be fulfi e fulfilled. eque must have been drawn for discharge harge of existing liability. debt or liabilit 2. Cheque must must be presented within three months onths or within period whichever is earlier. validity period 3. Cheque must must be returned unpaid due to insufficiency iciency of fund or it exceeds the ds the amount arrange or for any reason th son that could be brought withi within the ambit of the act towards di rds dishonour of cheque 4. Fact of dishon dishonour be informed to the drawer by noti y notice within a f thirty days. period of thirt 5. Drawer of ch of cheque must fail to make payment wi nt within fifteen receipt of the notice. days of receip a. For th For the commission of an offence under Sec er Section 138 of N.I. Ac .I. Act, such cheque i.e. dishonoured, must , must represent a CRLMC No. 1668 of of 2023 Page 4 of 6 legally gally enforceable debt not only on the day w day when it was drawn b b. “any lia rawn but also on the date of its maturity/pres y/presentation. any liability” occurred in the section is on is only to mean that an at any kind of liability of the drawer an wer and not any other’s ther’s liability, unless the payee, the draw drawer and the original riginal debtor entered to any agreement to th t to that effect. 8. In the pres e present case, the Complainant has miserab iserably failed to substantiate that th that the Petitioner was the proprietor of the c f the cold storage in question or that or that he had issued the cheque as its drawer drawer, or that he was otherwise liab se liable under any agreement to discharge t harge the debt for which the alleged alleged cheque was issued. The cheque heque itself was admittedly issued ssued by a third party from an account not b t not belonging to the Petitioner, and r, and there is no material on record to indic o indicate that the Petitioner was in as in charge of or responsible for the con e conduct of the business of the co the cold storage at the relevant time or t e or that he had authorised the tran he transaction in question. Mere mention of h on of his name as proprietor, withou thout supporting documentary evidence or nce or allegations establishing direc direct or vicarious liability, cannot faste t fasten criminal responsibility upo y upon him. In such circumstances, th es, the essential ingredients of the of the offence under Section 138 of the f the Negotiable Instruments Act Act are, prima facie, not made out a out against the Petitioner, and con nd continuation of the proceedings against gainst him would buse of the process of law. amount to abuse of 9. According ordingly, this CRLMC is allowed. The impu e impugned order of cognizance date e dated 17.02.2020 passed in 1CC Case No. e No. 74 of 2020 by the learned S.D ed S.D.J.M., Jajpur is hereby quashed as ed as against the present Petitioner tioner only. The proceedings in the said com id complaint case CRLMC No. 1668 of of 2023 Page 5 of 6 shall, however, co ver, continue as against the other accused cused persons in accordance with la with law. Bijay (Chittaranjan Da n Dash) Judge Signature Not Verified Digitally Signed Signed by: BIJAY KETAN SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA Date: 30-Jul-2025 10:32:06 CRLMC No. 1668 of of 2023 Page 6 of 6