The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.757 of 2021 Amiya Kumar Swain …. Appellant Ms. P. Pattnaik, Adv. -versus- Pankaj Kumar Singh …. Respondent Mr. R.N. Prusty, Adv. COROM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No 10. 1. This matter is taken up through Hybrid Mode.
Decision
ORDER 10.10.2025 2. Heard learned counsel for the parties. 3. The present appeal has been filed inter alia challenging judgment dated 30.01.2015, so passed by the learned 1st Addl. Sessions Judge, Rourkela in Criminal Appeal No.11 of 2014. 4. Learned counsel appearing for the appellant contended that the present appellant filed 1CC Case No.112 of 2009 in the file of learned JMFC, Rourkela alleging commission of offence Under Section-138 of the N.I. Act (In short “Act”). It is contended that the learned Trial Court after going through the materials available before him and the evidence so laid, held the Respondent guilty of the charges for the offence Under Section 138 of the Act and convicted the Respondent to // 2 // undergo S.I. for one year and to pay a sum of Rs.4,50,000/- to the appellant-claimant as compensation and in default of payment of the compensation amount to undergo further S.I. for three months. 4.1. Learned counsel for the appellant contended that challenging such order passed by the learned Trial Court in 1CC Case No.112 of 2009, Respondent herein moved learned 1st Addl. Sessions Judge, Rourkela by filing Criminal Appeal No.11 of 2014. Only on the ground that the learned Trial Court has not taken into consideration the defense plea, learned Appellate Court set aside the order passed by the learned Trial Court. 4.2. It is contended that if the Appellate Court found that the Trial Court has not considered the defence plea, while setting aside the judgment, should have remitted the matter for fresh disposal. But instead of remitting the matter to the Trial Court for fresh disposal in accordance with law, learned Appellate Court only set-aside the judgment passed by the Trial Court and thereby causing prejudice to the appellant. 4.3. It is contended that if some illegalities or irregularities were found by the learned Appellate Court, with regard to conduct of the proceeding by the learned Trial Court, the Appellate Court while setting aside the impugned judgment, should have remitted the matter for fresh disposal in accordance with law. Page 2 of 6 // 3 // 4.4. It is accordingly contended that the ground on which the Appellate Court allowed the appeal so filed by the present Respondent is not sustainable in the eye of law. 5. Mr. R.N. Prusty, learned counsel appearing for the Respondent on the other hand contended that in the complaint case so filed, the present Appellant examined the complainant and 2 (two) other witnesses namely Prasanta Kumar Behera and Ashok Kumar Satapathy. It is contended that the evidence of Prasanta Kumar Behera and Ashok Kumar Satapathy though goes in favour of the accused-Respondent but the same was never taken into consideration by the learned Trial Court and the same is also apparent as the learned Trial Court in its judgment only held that 1 (one) witness has been examined by the appellant/complainant. 5.1. It is also contended that though 3 (three) witnesses were examined by the appellant-complainant, but learned Trial Court only taken into consideration the evidence of complainant as P.W. 1 while disposing the matter by convicting the Respondent for the alleged offence with a direction to pay the compensation amount. Learned counsel for the Respondent produced the evidence of 2 (two) of the other witnesses examined by the Complainant namely Prasanta Kumar Behera Page 3 of 6 // 4 // and Ashok Kumar Satapathy before this Court for perusal and their depositions reads as follows:- “1. I know the complt. so also the accused. Accused requested the complt. for money of Rs.1,00,000/- on 27.11.2008. Complt. did not pay the above amount. Accused again came to the house of complt. on 3.8.08 against requested Rs.2,00,000/-. Complt. did not pay. Accused gave a cheque to the complt. Complt. deposited the cheque in SBI, Rourkela. The cheque was not encashed due to insufficient of funds. Xxxxx xxxxxx xxxxx xxxxx friendly loan on 27.07.07 of Rs.one 1. I know the complainant as well as accused. The accused took from complainant with condition to refund on 15.9.2008. He again came at 3.8.08 and took two lakhs. He again came on 9.10.08 gave two cheques out of which one lakh cheque (15.11.08) & another two lakh cheque (1.1.09) of SBI. The above cheque was presented at Urban Bank, Saktinagar on 1.1.09, that has no encashed due to insufficient of funds. A demand notice was sent on 17.10.09. But he could not pay.” lakh 5.2. It is also contended that since while convicting the Respondent, relevancy and effect of the evidence of the aforesaid two witnesses, namely Prasanta Kumar Behera and Ashok Kumar Satapathy were not taken into consideration, learned Appellate Court has rightly set aside the impugned judgment, which requires no interference. 6. Having heard learned counsel for the parties and considering the submissions made, this Court finds that the appellant-complainant moved the learned JMFC, Rourkela by filing 1CC Case No.112 of 2009. It is found that learned Trial Court vide its judgment dated 06.05.2014, convicted the Respondent for the commission of offence Under Section 138 of the N.I. Act Page 4 of 6 // 5 // and sentenced him to undergo S.I. for one year. Learned Trial Court also held the Respondent liable to pay compensation amount of Rs.4,50,000/- and in default to undergo further S.I. for 3 (three) months. 6.1. As found from the impugned judgment so available in the case record, learned Trial Court only relied on the evidence of the appellant Amiya Kumar Swain, who was examined as P.W.1. Since it is not disputed that the complainant examined 3 (three) Nos. of witnesses and the evidence of Prasanta Kumar Behera and Ashok Kumar Satapathy has not been taken into consideration by the Trial Court, it is the view of this Court that the Appellate Court has not committed any illegality or irregularity in setting aside the impugned judgment so passed by the learned JMFC, Rourkela. 6.2. But it is the view of this Court that while setting aside the impugned judgment so passed by the learned JMFC, learned Appellate Court should have remitted the matter for fresh disposal, instead of simply setting aside the same and acquitting the Respondent from the alleged offence. 6.3. In that view of the matter, this Court while quashing the impugned judgment dated 30.01.2015, so passed by learned 1st Addl. Sessions Judge, Rourkela in Criminal Appeal No.11 of 2014, remit the matter to the court of learned JMFC, Rourkela. Learned JMFC, Rourkela is directed to take up 1CC Case No.112 of Page 5 of 6 // 6 // 2009 and dispose of the same taking into account the materials available on record including the evidence of Prasanta Kumar Behera and Ashok Kumar Satapathy. This Court directs learned JMFC, Rourkela to dispose of the matter within a period of 3 (three) months from the date of receipt of this order, if there is no other legal impediment. Both the parties are directed to appear before the learned JMFC, Rourkela on or before 24.10.2025. 7. The CRLA stands disposed of with the aforesaid observation and direction. Judge Basudev (Biraja Prasanna Satapathy) Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Reason: Authentication Location: High Court of Orissa, Cuttack Date: 15-Oct-2025 16:13:12 Page 6 of 6