The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No. 4885 of 2023 Md. Sabir …. Petitioner Mr. Purna Chandra Das, Advocate -versus- State of Odisha and another …. Mr. B. K. Ragada, AGA Opp. Parties CORAM: JUSTICE CHITTARANJAN DASH Order No.
Decision
ORDER 14.11.2023 01. 1. Heard learned counsel for the Petitioner and the State. 2. By means of this application, the Petitioner seeks indulgence of this Court with a prayer to quash the further proceeding in 1CC Case No.97 of 2016 pending before the learned JMFC, Pipili. 3. The factual background of the case are that one Tapan Senapati, Opposite Party No.2 filed 1CC Case No.97 of 2023 U/s.138 of the Negotiable Instrument Act (hereinafter in short called ‘the Act’) before the learned JMFC, Pipili praying to punish the Petitioner for commission of offence under the Act and for any other reliefs as deemed fit and proper. 4. It is submitted by learned counsel for the Petitioner that for want of statutory compliance, the Petitioner moved the learned court of Magistrate challenging the maintainability of the complaint vide his Page 1 of 4 // 2 // application dated 15.02.2020 which was not disposed of and is lying pending. Subsequently, the trial of the case proceeded and the complainant being the witness while was in the midst of cross- examination, once again the Petitioner filed an application agitating the matter challenging the maintainability. On being rejected, the Petitioner moves herein to quash the order dated 30.09.2023. According to learned counsel for the Petitioner as required under the mandate of the Act on the presentation of the cheque by the holder in the event of insufficiency of fund in the account of the accused and/or dishonor of the same on any of the grounds, it is required for the holder of cheque to demand the dishonoured amount within the stipulated period and on the failure of the Opposite Party to make good the dishonoured cheque amount, the complaint is required to be filed before the competent court. It is further submitted by learned counsel for the Petitioner that in the case in hand no intimation slip has been sent by the Bank to the complainant showing dishonor of cheque. Further no notice required under the relevant provision issued to the Petitioner demanding the dishonoured of the cheque amount. In such eventuality, there is every likelihood that the complaint may not stand in the eye of law and no fruitful purpose would be served in the event the complaint proceeds further and as such the further proceeding in the criminal complaint may be quashed. 5. The learned counsel for the State on the other hand opposed the contentions of the learned counsel for the Petitioner. 6. The principles exercising the inherent jurisdiction has been decided in catena of decisions by the Apex Court, taking a cue there from it can safely be held that while exercising the powers under Section 482 Page 2 of 4 // 3 // CrPC, the Court has a very limited jurisdiction and is required to consider whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not. The Apex Court held that as per the cardinal principle of law, at the stage of discharge and/or quashing of the criminal proceedings, while exercising the powers under Section 482 Cr.P.C., the Court is not required to conduct the mini trial. 7. Perusal of the case record reveals that the complaint has been lodged as back as in the year 2016. The evidence was taken before the learned trial court and the complainant is facing cross-examination. In course of the cross-examination, the Petitioner filed a petition challenging the maintainability which the learned court declined vide impugned order. 8. Perusal of the impugned order reveals that the complaint has been lodged upon dishonor of the cheque as intimated to the complainant by his banker. Further, all the statutory formality having complied, the complaint has been admitted by the court and the complainant is ready to proceed with his complaint. The ground on which the Petitioner seeks to quash the proceeding requires this court to virtually swung into the evidence and evaluate the same which is beyond the purview of this Court while invoking jurisdiction U/s. 482 Cr.P.C as the subject matter in issue raised in the application involves disputed question of fact as the failure of the complainant in complying the statutory requirement before presenting the complaint in the court requires a complete adjudication which cannot be throttled in the guise of abuse of process of law. Page 3 of 4 // 4 // 9. Learned counsel for the Petitioner referred to the decision in the matter of Sudarsan Balabantarai and others v. State and another reported in (1992) 5 OCR 274, wherein this Court referring to the decision of the Apex Court in the matter of K. M. Mathew v. State of Kerala reported in (1992) 5 OCR 66 disposed of the application whereas the said decision of the Apex Court in the matter of K. M. Mathew v. State of Kerala (supra) has been set aside and the law enunciated therein does not hold good. As far as the decision in the matter of Ramesh Chandra Nayak v. M/s. Shivam Finance through their Power of Attorney Holder Sushanta Luha reported in (2013) 56 OCR 829 is concerned the fact in the said case are quite different to the facts here in this case inasmuch as in the said case the accused had repaid the entire money, but the complaint was lodged despite it. In the matter of Shiba Prasad Singh & another v. State of Odisha (OPID) reported in 2023 (II) ILR-Cuttack-1092, the factual background is again quite distinguishable to the facts in the present case and similar is the decision in the matter of Jugesh Sehgal versus Shamsher Singh Gogi reported in (2009) 14 SCC 683. Consequently, none of the decisions cited by the learned counsel for the Petitioner fits into the facts of the present case and as such cannot be made applicable in favour of the applicant. 10. This Court, therefore, finds no material to interfere with the impugned order. In the result, the CRLMC stands dismissed. Judge Signature Not Verified Digitally Signed AKPradhan Signed by: ANANTA KUMAR PRADHAN Designation: Sr. Steno Reason: Authentication Location: HIGH COURT OF ORISSA Date: 17-Nov-2023 10:21:13 (Chittaranjan Dash) Page 4 of 4