The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No. 4244 of 2022 Pratap Chandra Mohapatra …. Petitioner Mr. J.K. Khuntia, Advocate -versus- State of Odisha & another …. Opp. Parties Ms. S. Mohanty, Addl.P.P. CORAM: THE HON’BLE MR. JUSTICE CHITTARANJAN DASH Order No. 06. 1. 2. ORDER 22.09.2025 Heard learned counsel for the Parties. By means of this application, the Petitioner seeks to quash the order dated 30.11.2022 passed by the Learned S.D.J.M, Balasore in I.C.C. Case No.651 of 2021, wherein the learned court on the complaint lodged by the Opposite Party No.2 took cognizance of the offence under Section 138 of the N.I. Act, 1881 and issued process against the Petitioner. 3.
Legal Reasoning
The background facts of the case are that during the year 2019, the Petitioner approached the Opposite Party- Complainant for the construction of a residential house over his plot of land situated at Ganeswarpur, Januganj, i.e., on the back side of Barsana Block of Krishna Vihar. Being a registered builder and developer, the Opposite Party-Complainant demanded that the Petitioner provide the requisite revenue documents pertaining to the said plot, along with the mandated building plan. He also required the Petitioner to enter into an agreement for carrying out the construction of the residential building so as to maintain transparency and avoid any future litigation. In response, the Petitioner requested the Opposite Party-Complainant to commence the construction work as per his instructions, assuring him that the mandated revenue documents and the requisite approved construction plan would be provided and a formal agreement executed within a period of six months. The Petitioner introduced himself as a retired employee of the Steel Authority of India Limited and thereby persuaded the Opposite Party-Complainant to rely upon his commitment. On the strength of his credentials and firm assurance, the Opposite Party-Complainant commenced the construction work over the proposed plot as per the directions of the Petitioner, even in the absence of any written legal document. By December 2019, the Opposite Party-Complainant had completed the construction work up to the ground floor and continued further. Page 2 of 10 Even after completion of the ground floor construction work, the Petitioner did not provide the Opposite Party-Complainant with the mandated revenue documents pertaining to the said plot, nor did he supply the requisite approved house plan, despite repeated demands. On the contrary, the Petitioner continued to direct the Opposite Party-Complainant to proceed with the construction as per his wishes. In January 2020, the Opposite Party-Complainant once again reiterated his demand that the Petitioner produce the requisite revenue documents relating to the said plot and immediately enter into an agreement so as to maintain transparency and avoid future litigation. On 10.01.2020, the Petitioner requested the Opposite Party- Complainant to allow him another six months’ time to furnish all the mandated documents and to execute a legal construction agreement. He further earnestly requested the Opposite Party-Complainant to accept, in the meantime, a memorandum of understanding (MOU) prepared by him until such time the requisite documents and approved building plan were provided and the formal agreement executed. Relying on the Petitioner’s assurance and in good faith, the Opposite Party-Complainant agreed to sign the Page 3 of 10 MOU, subject to the condition that he would receive payment from the Petitioner towards the cost of construction already carried out over the said plot since 2019. The MOU, dated 10.01.2020, was accordingly prepared and signed by both parties. However, the Petitioner insisted that the Opposite Party-Complainant treat the MOU as a mere token document, limited for personal reference only, and assured him that any dispute arising in future would be amicably resolved. The Petitioner further undertook that the MOU would not be regarded as a legal construction agreement, and reiterated his commitment to provide the revenue documents and approved building plan at the time of executing the final agreement. The Opposite Party-Complainant again demanded immediate payment towards the construction already executed up to 10.01.2020. The Petitioner expressed his inability to pay on account of urgent loan repayment obligations but offered a cheque bearing No. 033453, drawn on Bank of India (Januganj Branch) for Rs. 23,75,000/- (Rupees Twenty-Three Lakhs Seventy-Five Thousand only), with a request that the Opposite Party- Complainant delay its presentation. The Petitioner also committed that the said amount would be formally Page 4 of 10 incorporated as part of the consideration in the legal construction agreement to be executed at a later date. Trusting the Petitioner’s assurance, the Opposite Party- Complainant signed the MOU in good faith. Subsequent to the signing of the MOU and receipt of the cheque, the Opposite Party-Complainant continued the construction under the Petitioner’s guidance and completed the house, including finishing and final painting, by April 2021. This completion was also acknowledged by the Petitioner in his WhatsApp message dated 25.04.2021. Even after the completion of construction, the Petitioner neither executed the agreement nor provided the revenue documents or the approved construction plan. On the contrary, he adopted delay tactics with an ulterior motive to evade his liability towards the construction cost which had become due as of April 2021. In July 2021, the Petitioner approached the Opposite Party-Complainant with another cheque, bearing No. 033454 for Rs.1,00,000/- (Rupees One Lakh only), drawn on Bank of India, Ganeswarpur (Januganj Branch), towards part payment of the construction cost, again requesting that its presentation be delayed. The Opposite Party-Complainant insisted that the Petitioner ensure Page 5 of 10 sufficient funds in his account to honour both cheques by July 2021. The Petitioner agreed and assured that funds would be available by 27.07.2021. On 12.10.2021, the Opposite Party-Complainant deposited cheque No. 033454 for Rs.1,00,000/- in his account with HDFC Bank, F.M. Circle, Balasore Branch for crediting into his SBI account No. 03661000059211. However, on 14.10.2021, he was informed by his banker, through “Cheque Returning Memo” dated 14.10.2021, that the cheque had been dishonoured with the remark “Funds Insufficient.” 4. The notice as envisaged under Section 138 of the N.I. Act was issued by the Opposite Party-Complainant’s advocate to the Petitioner on 23.10.2021 by Registered Post with A.D. and was duly served at the declared address of the Petitioner on 26.10.2021. The Petitioner failed to comply with the demand made in the said notice within the stipulated period. Instead, through his counsel, he sent a reply dated 08.11.2021, which was received by the Opposite Party-Complainant on 17.11.2021. In the meantime, however, the Petitioner instituted a complaint case against the Opposite Party-Complainant, registered as I.C.C. Case No.611 of 2021, manifestly with the ulterior motive of evading his liability to pay the cost of Page 6 of 10 construction of the house already completed by the Opposite Party-Complainant, and further, to exert undue pressure upon him so as to deter him from initiating any cheque bounce proceedings. Pursuant thereto, F.I.R. No.178 of 2021 was lodged at the Industrial Area P.S., Balasore. Several other developments took place during this period, wherein the Petitioner continued to put the Opposite Party-Complainant under constant pressure not to pursue the cheque dishonour case. Nonetheless, the Opposite Party-Complainant lodged a complaint under Section 138 of the N.I. Act, which was registered as I.C.C. Case No.636 of 2021, followed by the registration of F.I.R. No.187 of 2021 at the Industrial P.S., Balasore. Thereafter, on 22.11.2021, the Opposite Party-Complainant filed yet another complaint under Section 138 of the N.I. Act, which was registered as I.C.C. Case No.651 of 2021. Upon the passing of the order dated 30.11.2022 by the learned S.D.J.M., Balasore in I.C.C. Case No.651 of 2021, taking cognizance of the offence under Section 138 of the N.I. Act, the Petitioner approached this Court seeking quashing of the said order of cognizance. 5. It emerges from the application that the Petitioner challenged the impugned order on the solitary ground that Page 7 of 10 the F.I.R. lodged against the Opposite Party-Complainant, registered as F.I.R. No.161 of 2021 under Annexure-5 corresponding to C.T. Case No.791 of 2021 is pending before the self-same court of the learned S.D.J.M., Balasore, wherein it is alleged that the Opposite Party- Complainant has stolen the cheque book of the Petitioner which having been investigated culminated in submission of charge sheet. No other ground seems to have been taken by the Petitioner to challenge the order of cognizance. 6.
Legal Reasoning
It is vehemently opposed by the learned counsel for the Opposite Party-Complainant on the ground that the pendency of the criminal case with regard to the theft of the cheque book would no way affect the merit of the complaint case initiated under Section 138 of the N.I. Act. 6. Needless to say, the criminal action initiated by the Petitioner on the allegation of theft of the cheque book can very well be raised as a plea in the complaint case, and the Court in seisin of the matter under Section 138 of the N.I. Act is competent to adjudicate upon such defence, being inherently empowered to consider all issues having a bearing on the ultimate outcome of the case. Page 8 of 10 Even otherwise the criminal proceedings can proceed separately as the offence of theft of cheque is distinct from the adjudication of the cheque bounce offence under Section 138 of the N.I. Act. While theft is a criminal offence under the Indian Penal Code, a bounce stolen cheque does not meet the requirements for violation of the offence under Section 138 of the N.I. Act, as the core ingredient of a legally enforceable debt is absent in the criminal case. Further, while the offence under Section 138 of the N.I. Act deals with dishonour of a cheque for insufficient fund or for reasons like the cheque being stopped by the issuer, it does not apply to stolen cheque. In essence, the essential requirements for an offence under Section 138 of the N.I. Act cannot be met on a complaint on the grounds of the stolen cheque being presented for payment as it would not be deemed to be invalid and as such the proceeding under the138 of the N.I. Act would not apply. Therefore, if a person files a criminal complaint for theft of cheque book and/or a specific cheque, that proceeding will be part of the I.P.C. for the act of theft, whereas, if someone tries to file a cheque bounce complaint under the N.I. Act for that stolen cheque the court will not find that the requirements of that section are met, as the cheque was not issued for a valid debt. Page 9 of 10 Consequently, both the proceedings being independent in nature, as discussed above the court dealing with the offence under Section 138 of the N.I. Act, if so required, may have the jurisdiction to try the offence with regard to the theft of cheque but not vice versa and as such, the proceeding under 138 N.I. Act, as has been initiated, to continue. The Petitioner is not precluded to take the plea as regards to the theft of cheque before the court adjudicating the offence under Section 138 N.I. Act. 7. In view of the above, the CRLMC is dismissed being devoid of merit. Judge (Chittaranjan Dash) Sarbani Signature Not Verified Digitally Signed Signed by: SARBANI DASH Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 26-Sep-2025 18:06:14 Page 10 of 10