Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK CRLMC No.2356 of 2016 In the matter of application under Section 482 of the Criminal Procedure Code, 1973. --------------- AFR Diptimayee Mohapatra ..… Petitioner -Versus- State of Orissa and another ….. Opp. Parties For Petitioner : Mr. A. Das, Advocate For Opp. Parties : Mr. S.R.Roul, ASC, [O.P. No. 1] None [O.P. No.2] P R E S E N T:
Legal Reasoning
HONOURABLE MR. JUSTICE G. SATAPATHY Date of hearing: 03.01.2023: Date of judgment:16.01.2023 G.SATAPATHY, J. This application U/S.482 Cr.P.C. at the instance of Petitioner seeks to quash/set aside the order passed on 13.07.2015 by learned J.M.F.C., Bhubaneswar, in 1CC Case No. 161 of 2015 taking cognizance of offence U/S.138 of N.I. Act and consequently, the criminal proceeding arising thereof. // 2 // 2. Facts giving rise to the CRLMC are, O.P. No.2 being the complainant instituted the complaint in 1CC Case No. 161 of 2015 against the Petitioner in the Court of learned S.D.J.M., Bhubaneswar for commission of offence U/S.138 of N.I. Act r/w Section-420 of IPC on account of dishonor of cheque issued by Petitioner in favour of the O.P. No.2-cum-complainant vide cheque No. 000001 dated 15.09.2014 drawn from her account maintained at Bank of Baroda, Bhubaneswar Branch for an amount of Rs. 25,000,00/- (Rupees Twenty Five Lakhs). According to the complainant-cum-O.P. No.2, the Petitioner is the wife of his front door childhood friend who in the course of his real-estate business approached him(complainant) to purchase a piece of land in Plot No. 620 of Khata No. 1556 of 267 in Mouza Bhubaneswar comprising an area of Ac. 0.200 decimals stands recorded in his name (Petitioner) for a consideration of Rs. 73,00,000/- (Rupees Seventy Three Lakhs) and the Petitioner, accordingly, received that amount in between August, 2012 to January, 2013 for her legal necessity, but when the Petitioner avoided to execute the sale deed, the // 3 // complainant-O.P. No. 2 enquired and came to know that the land has already been sold to one P. Gopal Krishna and when she approached the Petitioner on several occasions to refund the consideration amount, the Petitioner issued the aforesaid cheque for an amount of Rs. 25,00,000/- (Twenty Five Lakhs) and when such cheque was presented by the complainant-O.P. No.2 with his bank at HDFC main branch at Bhubaneswar, the said cheque was dishonored and returned unpaid by the bank due to insufficient funds, whereafter the complainant-O.P. No. 2 issued demand notice within the stipulated time to the Petitioner for refund of the amount, but the Petitioner did not pay back the amount despite receipt of the demand notice and thereafter, the complainant-O.P. No.2 instituted the aforesaid complaint paving the way for learned J.M.F.C., to take cognizance of offence U/S.138 of N.I. Act by the impugned order which is challenged by the Petitioner in this CRLMC along with the relief for quashing of the entire criminal proceeding against her. // 4 // 3. Mr. A. Dash, learned counsel for the Petitioner submits that although the cognizance has been taken by the impugned order, but there is no order with respect to condonation of delay in filing the complaint and also no separate petition for condonation of delay has been filed by the complainant nor is there any ground for condonation of delay in the complaint. Learned counsel for the Petitioner under aforesaid submission prays to quash the impugned order. 4. Admittedly, it appears from the above submission of the Petitioner that she challenges the impugned order purely on the ground of delay in filing the complaint by O.P. No. 2, but Section 142 of the N.I. Act provides for taking cognizance of offence under the Act and the relevant portion of the Said provision is extracted as under:- 142(a) “No Court shall take cognizance of any offence punishable Under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138.” // 5 // Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period. xxx xxx xxx xxx xxx xxx 5. In the course of hearing of the CRLMC, learned counsel for the Petitioner has submitted that neither any separate petition has been filed by the complainant for condonation of delay nor is there any ground for condonation of delay in the complaint, but a careful perusal of the impugned order itself discloses that the complainant has filed a petition U/S.142(b) of the N.I. Act to condone the delay in filing the complaint and the learned Court has taken into consideration such petition by passing a reasonable order condoning the delay in filing the complaint by the complainant. It therefore, appears that the submission advanced on behalf of the Petitioner has no force. 6. Be that as it may, the proviso appended to Section 142(b) of the N.I. Act provides for the Court to take cognizance of offence under the Act after the // 6 // prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period and in this case, the impugned order clearly discloses that the Court in seisin of the case after being satisfied with the ground advanced by the complainant has condoned the delay by the impugned order and this Court, however, does not find any infirmity in such impugned order. 7. In view of the aforesaid discussion of facts and the provisions of law together with carefully considering the impugned order, there appears no infirmity in the impugned order warranting any interference by this Court in this CRLMC. 8. In the result, CRLMC is dismissed, but in the circumstance, there is no order as to cost. JUDGE …………….………….. G.SATAPATHY, Orissa High Court, Cuttack The 16th January, 2023, Priyajit