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IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No. 2900 of 2024 An application under Section 482 of the Code of Criminal Procedure, 1973. Jyoti Ranjan Kar …. Petitioner Minaketan Mohapatra …. Opp. Party -versus- ---------------------------------------------------------------------------------- For Petitioner Mr. S. P. Dash, Advocate : For Opp. Party ---------------------------------------------------------------------------------- Mr. G. P. Jena, Advocate : CORAM: HON’BLE MISS JUSTICE SAVITRI RATHO JUDGMENT 31.07.2025 Savitri Ratho, J. This CRLMC has been filed to set aside the criminal proceeding as well as the order dated 15.05.2024 passed in 1CC Case No. 51 of 2024 by the learned Judicial Magistrate First Class (in short “JMFC”) Soro taking cognizance of the offence under Section 138 of the Negotiable Instruments Act (in short “the NI. Act”) against the accused - petitioner. CRLMC No. 2900 of 2024 Page 1 of 12 CASE OF THE COMPLAINANT 2. The complainant is a service holder. he complainant- opposite party and the accused - petitioner-‟s family are known to each other. The accused borrowed money from the complainant on different occasions .When the complainant asked for return of the money , on 16.02.2024 , the accused issued a cheque bearing No.-069326 for Rs 17,00,000/- . The complainant presented the cheque for collection in State Bank of India, Soro but the cheque was bounced and was returned unpaid with an endorsement „funds insufficient‟, vide cheque return memo dated 21.02.2024. Thereafter on dated 09.03.2024 the complainant sent a legal notice to the accused . He received the above demand notice but did not pay the amount . So the complainant filed the complaint - I.C.C No. 51 of 2024 in the Court of the J.M.F.C, Soro. On receipt of the complaint petition and other relevant documents produced by the complainant, the learned J.M.F.C, Soro on 15.05.2024 took cognizance of the offence under Section 138 of the N.I Act and issued process to the petitioner for his appearance. IMPUGNED ORDER 3. On 15.05.2024, after the complainant filed the original documents ; after perusal of the complaint , the affidavit of the CRLMC No. 2900 of 2024 Page 2 of 12 complainant under Section 145 of the NI Act and other documents , the learned JMFC , Soro found sufficient material to proceed against the petitioner under Section 138 of the N.I. Act , took cognizance of the offence and issued summons to him . SUBMISSION 4.
Legal Reasoning
I have heard Mr. S.P. Dash, learned counsel for the petitioner and Mr. G.P. Jena, learned counsel for the Opposite Party. 5. Mr. Dash, learned counsel for the petitioner submitted that the petitioner does not know the complainant though the complainant claims they are friends and there is no legal debt existing to attract the offence under Section 13 of the NI Act . He has submitted that on 22.09.2023 , when the petitioner had been to Bank of India Tungabhadra Branch to withdraw some money , two cheques including the cheque in question in this case got stolen . So he informed the Bank to stop payment and reported the matter to the IIC Soro Police Station and police made a Station Diary Entry . When he received the Advocate‟s notice of the complainant , he had replied informing him his two cheques had got stolen for which he had informed the police who had made station diary entry . But after receiving the reply , instead of returning the cheque to the petitioner, the complainant filed FIR against him , leading to CRLMC No. 2900 of 2024 Page 3 of 12 registration of Soro P.S. Case 224 of 2024 , punishable under Sections 420, 422, 468 I.P.C and also filed this complaint making false allegations. But the allegations in the FIR and the complaint case are completely different. He has further submitted that the complainant has not mentioned in the complaint petition or brought to the notice of the learned Magistrate about lodging of FIR against the petitioner . In view of the contents of the written FIR of the complainant in Soro P.S Case 224 of 2024 , no legal liability which is one the requirements to constitute the offence under Section 138 NI Act , is available against the petitioner , for which , the impugned order taking cognizance is liable to be quashed. He has submitted that as investigation in Soro P.S. Case No. 224 of 2024 was going on, in view of the provisions of Section 210 of the Cr.P.C., the learned Magistrate should have stayed the proceedings / in the complaint case and called for a report from the police or the records of that case , before issuing summons to the petitioner . 6. Mr Dash , learned counsel further submitted in a catena of decision this Hon'ble court as well the Apex court have held that if on a bare reading of the complaint petition, no offence is disclosed or the allegations are frivolous or vexatious, the proceeding should be quashed. CRLMC No. 2900 of 2024 Page 4 of 12 7. Apart from the impugned order dated 15.05.2024 and the complaint petition (Annexure 1) , the petitioner has annexed copy of the FIR in Soro P.S. Case No 224 of 2024 ( Annexure 2 ) ; copy of the intimation to the Police on basis of which SDE was made , statutory notice and reply to the notice as ANNEXURE 3 Series . 8. Mr. G.P. Jena, learned counsel for the Opp. Party opposed the submissions of the learned counsel for the petitioner , stating that Soro P.S Case No 224 of 2024 relates to different offences for which the provision of Section 210 of the Cr.P.C. is not attracted. He further submitted that the contentions of the petitioner that the allegations are frivolous or that the offence under Section 138 NI Act is not made out is a defence plea to be urged during trial . STATUTORY PROVISIONS 9. For deciding this application, the provisions of Section-210 of the Cr.P.C. , Section 223 of the Bharatiya Nagarik Suraksha Sanhita , 2023 ( in short “the BNSS”) and Section 138 of the NI Act are relevant , for which the provisions are extracted below:- CRLMC No. 2900 of 2024 Page 5 of 12 “Section 210- Procedure to be followed when there is a complaint case and police investigation in respect of the same offence. (1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such enquiry or trial and call for a report on the matter from the police officer conducting the investigation. (2) If a report is made by the investigating police officer under section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. (3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code.” CRLMC No. 2900 of 2024 Page 6 of 12 “Section 223. Examination of complainant. (1) A Magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard: Provided further that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 212: Provided also that if the Magistrate makes over the case to another Magistrate under section 212 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them. (2) A Magistrate shall not take cognizance on a complaint against a public servant for any offence alleged to have been committed in course of the CRLMC No. 2900 of 2024 Page 7 of 12 discharge of his official functions or duties unless-(a) such public servant is given an opportunity to make assertions as to the situation that led to the incident so alleged; and (b) a report containing facts and circumstances of the incident from the officer superior to such public servant is received.” “Section 138- Dishonour of cheque for insufficiency, etc., of funds in the account.- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years,] or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- CRLMC No. 2900 of 2024 Page 8 of 12 (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.” ANALYSIS AND CONCLUSION 10. A perusal of the written FIR in Soro P.S case No 224 of 2024 (Annexure 2) reveals that the complainant had stated that the petitioner had taken Rs 17,00,000/- from the complainant for investing in the share market and to convince him to give him the money , had given him a post dated cheque for Rs 17,00,000/- . When the complainant did not get any returns from the share market , he presented the cheque for payment and it bounced .When he sent the statutory notice to the accused he got a Station Diary Entry registered and refused to make payment . On basis of CRLMC No. 2900 of 2024 Page 9 of 12 this FIR , the case has been registered under Section-420,422 and 468 IPC against the petitioner . 11. It is true that in his reply to the statutory notice of the complainant, the petitioner had stated that after he lost the cheques ( including Cheque No. 069326 ) he had informed the police about two cheques being lost and a Station Diary Entry had been made on the basis of such information , but the information to the police and SDE has to be proved by leading evidence . 12. Copy of an affidavit of the petitioner has been filed with this CRLMC (part of Annexure 3 Series ) relating to loss of the two cheques , but whether this affidavit was handed over the Bank asking / for it to stop payment , may also be required to be proved if the petitioner relies on such plea . 13. If it is true that the petitioner had taken some money from the complainant for investing in the share market and had issued the post dated cheque as an assurance / guarantee , but the amount invested did not produce the promised returns , it may not be a legal liability under Section 138 of the NI Act . But this has to be proved by the petitioner by leading evidence which may include the FIR of the complainant . CRLMC No. 2900 of 2024 Page 10 of 12 14. Had the complaint been filed after coming into force of the Bharatiya Nagarik Suraksha Sanhita , 2023 ( in short “BNSS”) , which has replaced the Code of Criminal Procedure , 1973 ( in short “Cr.P.C”) , as per the first proviso to Section 223(1) of the BNSS , the Magistrate after examining the affidavit and documents filed by the complainant , would have given the petitioner an opportunity of hearing , before taking cognizance of the offence . 15. I am of the opinion that in exercise of power under Section 482 of the Cr.P.C , I cannot quash the order of cognizance, by relying on the FIR of the complainant in Soro P.S Case No. 224 of 2024 , or the Station Diary Entry or Affidavit of the petitioner which has been produced in this Court . The petitioner will have to produce all these materials before the learned Magistrate at the appropriate stage . 16. As the registration or pendency of investigation in Soro P.S Case No. 224 of 2024, was not brought to the notice of the learned Magistrate by the complainant , the question of exercise of power under Section 210 of the Cr.P.C by the learned Magistrate does not arise .So the impugned order is not liable for interference on that score. CRLMC No. 2900 of 2024 Page 11 of 12 17. However , as it appears that the same cheque is involved in both the cases , if trial in the two cases is required to be held , it would be in the interest of justice if both the cases are tried by the same Officer / Court . Therefore if chargesheet is filed in Soro P.S. Case No 224 of 2024 , it is open to the petitioner to file an application before the appropriate forum for hearing of the two cases by the same Magistrate , 18. In view of the discussion above, I am not inclined to interfere with the impugned order of cognizance, for which the CRLMC is dismissed, but with the aforesaid observations. 19. Copy of this judgment be communicated to the learned JMFC, Soro forthwith. …………….……. (Savitri Ratho) Judge Orissa High Court, Cuttack Dated 31st July, 2025 / Subhalaxmi Signature Not Verified Digitally Signed Signed by: SUBHALAXMI PRIYADARSHANI SAHOO Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Aug-2025 14:41:45 CRLMC No. 2900 of 2024 Page 12 of 12