The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.232 of 2025 Surendra Kumar Mishra …. Petitioner Mr. D. P. Dhal, Senior Advocate -Versus- State of Odisha and another …. Opposite parties Mr. S. Behera, AGA CORAM: MR. JUSTICE R.K. PATTANAIK
Decision
ORDER 25.06.2025 Order No. 01. 1. Heard Mr. Dhal, learned Senior Advocate for the petitioner and Mr. Behera, learned AGA for the State. 2. Notice to opposite party No.2 is dispensed with as the matter is disposed of at the stage of admission. 3. Instant revision is filed by the petitioner challenging the impugned order dated 24th March, 2025 passed in connection with 1 CC Case No.112 of 2019 by learned SDJM, Anandapur, Keonjhar, whereby, while considering an application dated 17th February, 2025 of opposite party No.2 in terms of Section 245 (2) Cr.P.C, the complaint filed by him was dismissed under Section 203 Cr.P.C. 4. Mr. Dhal, learned Senior Advocate appearing for the petitioner submits that a faulty procedure has been followed by learned court below in dismissing the complaint under Section 203 Cr.P.C. at a stage when statement of opposite party No.2 under Section 313 thereof was to be recorded. Referring to a Page 1 of 5 decision of the Apex Court in M.D. Thomas Vrs. P.S. Jaleel and another (2009)14 SCC 398, the further submission is that learned court below could not have invoked Section 245 Cr.P.C. applicable in a warrant triable case, whereas, the complaint is in respect of and for an offence under Section 138 of the NI Act and for trying the same, summons procedure is followed. The contention is that learned court below by placing reliance upon the cited case law (supra) and Section 245 of Cr.P.C. with a conclusion that one shall not be deprived of any relief for a wrong provision of law being mentioned held that the complaint of the petitioner is liable to be dismissed and it was on the premise that the notice issued to opposite party No.2 was in fact received by his wife. The contention is that apart from following a wrong procedure, learned court below invoked Section 245(2) Cr.P.C. and ultimately, at the stage of recording of the statement of opposite party No.2, dismissed the complaint under Section 203 Cr.P.C., hence, therefore, the impugned order as at Annexure-4 dated 24th March, 2025 is liable to be interfered with and set at naught. 5. In course of hearing, the a copy of the decision in M.D. Thomas (supra) is produced and the same is gone through and therein, upon conclusion of trial and acquittal of the accused for an offence under Section 138 of the NI Act while dealing with an appeal, the Apex Court held and observed that notice of demand since was served on the wife and not on the accused, necessary ingredient of the offence is not fulfilled and hence, set aside the order of conviction. Page 2 of 5 6. Mr. Dhal, learned Senior Advocate for the petitioner refers to a decision of Bombay High Court in Rekha Mahindra Shah Vrs. Gautam Umed Parmar and another 2013 SCC Online Bombay 543 to contend that the case law in M.D. Thomas (supra) has been referred to therein, wherein, the claim of non-receipt of demand notice by the accused was rejected by the learned court below was confirmed. 7. Admittedly, the application under Section 245(2) Cr.P.C. at the behest of opposite party No.2 was entertained and it was for dismissal of the complaint on the ground that the demand notice was not received by him rather served on his wife and hence, it is not in consonance with Section 138(b) proviso of the NI Act. As earlier stated, while dealing with such an application I.e. Annexure-2 and referring to the decision of the Apex Court in M.D. Thomas (supra), learned court below reached at a conclusion that the compliant deserves to be dismissed. Before considering the disposal of the complaint, the objection of the petitioner, a copy of which is at Annexure-3, was looked into. It is stated at the cost of repetition that the Apex Court, while dealing with an appeal upon conclusion of trial with the order of acquittal being set aside by the High Court in an offence 138 of NI Act, reached at such a conclusion that notice to drawer is sine qua non as required in terms Clause (b) of proviso to Section 138 of the NI Act. 8. In the meanwhile, opposite party No.2 approached this Court in CRLMC No.4806 of 2024 and it was withdrawn and disposed of with liberty granted to him to move a fresh application to be considered in lines the decision of M.D. Page 3 of 5 Thomas (supra). Pursuant to the order dated 13th August, 2024 in CRLMC No.4806 of 2024, learned court below considered Annexure-2 with the objection i.e. Annexure-3 and ultimately, passed the impugned order (Annexure-4). 9. To return back to the contention that the complaint could not have been dismissed by learned court below, as has been argued by Mr. Dhal, learned Senior Advocate for the petitioner, the Court is of the humble view that the complaint in 1 CC Case No.112 of 2019 was pending at the stage of recording of statement of opposite party No.2 under Section 313 Cr.P.C. In so far as, the Section 245(2) Cr.P.C is concerned, it is applicable to a warrant case at a stage after the evidence for prosecution under Section 245 Cr.P.C. is received. In the instant case, a summons procedure has been followed since offence is one under section 138 of the NI Act. Nevertheless, such a demand for discharge and dismissal of the compliant has been made referring to Section 245(2) Cr.P.C and the learned court below entertained the same, when the trial is half way and pending at the stage of recording of statement of opposite party No.2 under Section 313 Cr.P.C. No such provision is in place in respect of trial of a summons case by Magistrate as per chapter XX of the Court. By invoking Section 245(2) Cr.P.C, learned court below proceeded to discharge the accused, namely, opposite party No.2. Furthermore, learned court below exercised jurisdiction Section 203 Cr.P.C., which deals with dismissal of the complaint before proceeding to summon the accused under Section 204 Cr.P.C. Having regard to the above facts and submission of Mr. Dhal, learned Senior Advocate for the petitioner, it can be safely held and concluded Page 4 of 5 that learned court below followed a completely erroneous procedure while dealing with the complaint. On the one hand, the complaint was dismissed under Section 203 Cr.P.C. and at the same time, opposite party No.2 has been discharged under section 245(2) Cr.P.C., hence, therefore, learned court below failed to adhere to the procedure prescribed for summons case and therefore, it has to be held that the impugned order dated 24th March, 2025 at Annexure-4 during and in course of trial and at the stage of recording of the statement under Section 313 Cr.P.C. of opposite party No.2 is liable to be set aside. 10. Accordingly, it is ordered. 11. In the result, the revision petition stands allowed. As a necessary corollary, the impugned order dated 24th March, 2025 as at Annexure-4 in 1 CC No.112 of 2019 is hereby set aside with a direction to learned SDJM, Anandapur, Keonjhar to proceed with the complaint from the stage of recording of opposite party No.2 under Section 313 Cr.P.C. and to dispose it of as per and in accordance with law. 12. Urgent copy of this order be issued as per rules. (R.K. Pattanaik) Judge Rojina Signature Not Verified Digitally Signed Signed by: ROJINA SAHOO Designation: Junior Stenographer Reason: Authentication Location: OHC, CTC Date: 30-Jun-2025 11:27:55 Page 5 of 5