The High Court
Case Details
OrderNo. 07. IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.1655 of 2016 M/s. Orissa Rice Mill Pvt. Ltd., Jajpur and another … Petitioners Mr. P.K. Jena, Advocate -versus- Sk. Ilyas Ali … Opposite Party Mr. B.N. Bhuyan, Advocate CORAM: JUSTICE G. SATAPATHY
Decision
ORDER 09.01.2023 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. This is an application filed by the petitioners seeking to quash the order taking cognizance of offence in 1.C.C. Case No.6637 of 2013 of the court of learned Court of J.M.F.C., Bhubaneswar and consequently, the criminal proceeding arising thereof. 3. Facts giving rise to this CRLMC are that O.P. No.2 instituted a complaint against the petitioners, who are the company and its Managing Director, in the Court of learned S.D.J.M., Bhubaneswar in 1.C.C. Case No.6637 of 2013 and learned Court after taking Page 1 of 6 into consideration the initial statement of the complainant filed in shape of affidavit together with documents produced in support of the complaint, took cognizance of offence U/S.138 of NI Act by the impugned order. Feeling aggrieved with the said order, the accused-petitioners have knocked the door of this Court to quash the order taking cognizance of offence and the criminal proceeding arising thereof in the present CRLMC U/S.482 of Cr.P.C. 4. In the course of hearing of the CRLMC, Mr. P.K. Jena, learned counsel for the petitioners by taking through the grounds of challenge as stated in the CRLMC, submits that the present case is an outcome of erroneous information furnished by the banker of the accused-petitioners, which gave an intimation to the complainant that the cheques issued by the petitioners cannot be honoured due to insufficient of funds in the account of the petitioners maintained at the bank, despite being the fact that the said account of the petitioners was instructed earlier to be closed down by the petitioners on the ground that the cheque book issued by the bank had been misplaced. It is further submitted that the petitioners had not issued the cheques in question, but the bank having provided such information to the complainant, who instituted the complaint against the petitioners after unsuccessfully recovering the money Page 2 of 6 against the cheques amount by issuing demand notice, which was duly replied by the petitioners to have not issued the cheques and the complainant under aforesaid fact has instituted the complaint, which is not maintainable before the Court in the eye of law for the facts stated above. Learned counsel for the petitioners accordingly prays to quash the order passed on 04.01.2014 by the learned S.D.J.M., Bhubaneswar in 1.C.C. Case No.6637 of 2013 taking cognizance of offence U/S.138 of NI Act and consequently, the criminal proceeding right now pending before the learned J.M.F.C.(2), Bhubaneswar. 5. Mr. B.N. Bhuyan, learned counsel for the O.P. No.2, however, strongly opposes such prayer of the petitioners. 6. Admittedly, for taking cognizance of offence U/S.138 of NI Act, the following requirements of law need to be established by the complainant. (i) the cheque issued by the drawer/accused person(s) has been presented to a bank for encashment within the period of its validity i.e. three months at present, (ii) such cheque must have been dishonoured by the bank on presentation for encashment and (iii) the cheque must have been issued for discharge of debt or other liability. Page 3 of 6 (iv) a demand notice for payment of said amount of money by the complainant must have been issued to the drawer of the cheque/accused person(s) within thirty days of receipt of such information of dishonor of cheque (v) a complaint has been filed by the drawee of the cheque for failure of drawer to make payment of cheque amount within fifteen days of receipt of such demand notice of the drawee. 7. Besides, the “debt or other liability” means in the context a legally enforceable debt or other liability. In addition to the above, there is also requirement for the complainant to file the complaint within a statutory period of one month of receipt of reply to the demand notice for payment of money from the drawer of the cheque, which is the accrual of cause of action for the complainant/drawee of cheque. In this case, there is no dispute about the petitioners giving reply to the demand notice, which has been annexed at Annexure-4 and in such notice, the complainant has described the necessary facts, but the petitioners have replied to the demand notice at Annexure-6 in which the petitioners have denied about execution of any agreement as well as issuance of two cheques drawn on SBI, Chandikhole branch in favour of the complainant for discharge of any friendly loan by terming it as completely false. Page 4 of 6 The petitioners have further stated in reply to such demand notice that their accounts had already been closed way back on 29.03.2010 and, therefore, their (petitioners) issuing cheques in a closed account in 2013 is nothing, but false and after closure of the account, there was no transaction, however, some unused cheques which were lying in their office (of the petitioners) had got misplaced and apprehending misutilization of cheques, they (petitioners), accordingly, had issued intimation to the bank on 23.03.2011 in this regard. In such reply to demand notice, the Petitioners have also alleged against the complainant-O.P. for defrauding them by using such missing cheques which amounts to a criminal act. 8. Be that as it may, it appears from the copy of the intimation slip placed at annexure-5 issued by SBI, Industrial Estate Branch, Bhubaneswar after presentation of two cheques by the complainant for collection that the said cheques have been returned back unpaid for reason of insufficient funds. Above being the intimation issued by the bank to the complainant, the pleas taken by the petitioners in reply to the demand notice of the complainant, which are also advanced in the argument in this CRLMC, may be good grounds of defence, but that is not sufficient to term the impugned order taking cognizance of offence as an abuse of process of Page 5 of 6 Court, especially when such pleas of the Petitioners are questions of facts which can be addressed to in the trial of the complaint, but said pleas cannot be considered to have been established by the Petitioners in this CRLMC with present facts and circumstances of the case 9. In view of the discussion of aforesaid fact and circumstance, this Court does not find any merit in CRLMC. Hence, the CRLMC stands dismissed on contest, but in the circumstance, there is no order as to cost. (G. Satapathy) Judge Subhasmita Page 6 of 6