Orissa High Court
Ramesh Chandra Dash vs State Of Odisha & Another on 26 August, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No. 1717 of 2008
Ramesh Chandra Dash .... Petitioner
Mr. S. Khilar, Adv. (Amicus Curiae)
- Versus -
State of Odisha & another .... Opp. Parties
Mr. P. Tripathy, Addl. Standing Counsel
CORAM:
JUSTICE SASHIKANTA MISHRA
ORDER
26.08.2022
Order No. 1. This matter is taken up through hybrid mode.
13.
2. Heard learned counsel for the petitioner and learned Addl.
Standing Counsel for the State.
3. In the present revision, the judgment passed by learned
S.D.J.M., Kendrapara in ICC Case No. 103/2003 on 26.07.2005,
as confirmed by learned Addl. Sessions Judge, Kendrapara in
Criminal Appeal No.31 of 2005 vide judgment passed on
31.10.2008 is under challenge. The learned trial court had
convicted the accused petitioner for the offence under Section
138 of N.I. Act and imposed a fine of Rs.3,000/-, in default, to
undergo RI for six months.
4. Bereft of unnecessary details, the facts of the case are that a
complaint was filed by one Debendranath Samanta in the trial
court against the petitioner alleging therein that the cheque of
Rs.18,000/- dated 28.02.2003, which was handed over to him by
the accused towards cost of spare parts and other articles
purchased from his shop, i.e. M/s. Natraj Agency, was
dishonoured due to insufficient funds as communicated to him by
the Bank on 21.03.2003. The complainant contacted the accused
and as requested by him, he presented the cheque for encashment
again on 03.05.2003 which also came to be dishonoured due to
insufficient funds as communicated by the bank. Thereafter, the
complainant served the statutory legal notice demanding payment
of the amount in question, which the accused acknowledged but
failed to pay within the stipulated period. Hence, the complaint.
The accused took plea of denial and in addition took the plea
that the cheque was not dishonoured due to insufficient of funds
but due to mismatch of signature, for which the provision under
Section 138 of N.I. Act is not attracted. The complainant
examined himself as P.W.-1 and another witness as P.W.-2. The
accused examined one witness as D.W.-1.
5. Learned court below, after going through the oral and
documentary evidence adduced before him held that the fact of
deposit of the cheque for collection and of its dishonour was
clearly proved. The statutory legal notice was also proved to have
been served upon the accused. The cheque in question was
proved as Ext.-1 and the signature of the accused thereon as
Ext.1/1. The accused examined a villager to rebut the claim of
the complainant that the statutory notice had been served upon
him but the trial court did not believe the version of the D.W.-1.
As regards the plea that the cheque was dishonoured, not due to
insufficient of funds but because of mismatch of signature,
learned court below referred to Ext.5, which is the intimation
issues by Kendrapara Urban Cooperative Bank, in which the
reasons for dishonour of cheque was clearly stated as insufficient
funds. As such, the trial court held that even if the cheque was
also dishonoured due to mismatch of signature, fact remains that
insufficiency of funds was one of the reasons for dishonour of the
cheque, which brings the case within the mischief of Section 138
of N.I. Act. On the above evidence, the accused was held guilty
and sentenced to fine as aforesaid.
The accused carried the matter in appeal. The learned lower
appellate court went through the oral and documentary evidence
independently and held that there was no infirmity in the order of
conviction and sentence passed by the trial court so as to
interfere. The appeal was thus, dismissed.
Feeling further aggrieved, the petitioner has approached this
Court in this revision.
6. Mr. S. Khilar, learned Amicus Curiae appointed by this
Court has argued that the service of the legal notice on the
accused as mandatorily required by the statute has not been
proved properly inasmuch as the version of the D.W.-1, a
villager, who clearly stated that there was no person called
Ramesh Chandra Das in village was not considered in proper
perspective by the trial court. It is further argued by Mr. Khilar
that the cheque was dishonoured for insufficiency of funds on the
first occasion but on a second occasion, i.e. on 05.05.2003, which
gave rise to the cause of action for filing the complaint, it was
dishonoured for insufficiency of finds and mismatch of signature.
The cheque being dishonoured for mismatch of signature cannot
give rise to a cause of action contemplated under Section 138 of
N.I. Act.
7. In order to appreciate the contention as above this Court has
also perused the documents available in the lower court record,
particularly, Exts.-3 and 5. Ext.-3 is the intimation of the
Kendrapara Urban Cooperative Bank Ltd on 18.03.2003 clearly
indicating that the cheque was not honoured because of
insufficient funds. Ext.-5 is the intimation of the said Bank on
13.05.2005 indicating two reasons for dishonour of the cheque,
namely "drawer signature differs and insufficient of funds".
Since one of the reasons for not honouring the cheque is
insufficient fund, the same is enough to bring the case within the
mischief of Section 138 of N.I. Act. The fact that there was some
other reason also namely, mismatch of drawer's signature, the
same will not take the case out of the purview of Section 138 of
N.I. Act. Thus, the main ground urged by the petitioner accused
does not carry any weight to be considered. Moreover, even on
an independent assessment of the oral and documentary evidence
available on record and on perusal of the order of conviction
passed by the learned trial court as confirmed by the lower
appellate court, this Court finds no reason to interfere in the
matter.
8. In the result, the revision is found to be devoid of any merit
and is therefore, dismissed.
9. Before parting with the case this Court deems it proper to
place on record its appreciation for the able assistance rendered
by Sri S.Khilar, Amicus Curiae in disposal of the case. His
professional fee is fixed at Rs.10,000/-.
10. The CRLREV is disposed of accordingly.
(Sashikanta Mishra)
Judge
A.K. Rana
