Ashis Mohanty vs State Of Odisha And Others
2023 Latest Caselaw 2816 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                    CRLMC No.739 of 2021

  Ashis Mohanty                          ....            Petitioner
                                   Mr. Samvit Mohanty, Advocate


                               -Versus-

  State of Odisha and Others            ....     Opposite Parties
                                          ASC for State-OP No.1
               Mr. Partha Sarathi Nayak, Advocate for O.P. No.2

                           AND

                    CRLMC No.738 of 2021

  Ashis Mohanty                          ....            Petitioner
                                   Mr. Samvit Mohanty, Advocate


                               -Versus-

  State of Odisha and Others           ....      Opposite Parties
                                          ASC for State-OP No.1
               Mr. Partha Sarathi Nayak, Advocate for O.P.No.2



            CORAM:
            JUSTICE R.K. PATTANAIK

              DATE OF JUDGMENT:05.04.2023

1.

Instant petitions under Section 482 Cr.P.C. are at the behest of the petitioner for quashment of the criminal proceedings in connection with 1CC Case Nos.321 & 322 of 2017 and consequential orders passed therein by the learned S.D.J.M., Panposh on the grounds inter alia that he is not the drawer of the cheques and there is no legally enforceable debt against him.

Ashish Mohanty Vrs. State of Odisha & Others

2. It is contended by the petitioner that even by considering the uncontroverted allegations in the complaint, no prima facie case is established against him, he having not drawn the cheques but then, the learned court below lost sight of it and took cognizance of the offence and passed the impugned orders dated 22nd September, 2017 and 23rd September, 2017.

3. Heard Mr. Mohanty, learned counsel for the petitioner and Mr. Nayak, learned counsel for opposite party No.2.

4. The common ground in both the cases is that the orders of cognizance vis-à-vis the petitioner is not sustainable in law as he has not committed any offence under Section 138 of N.I. Act not being the drawer of the cheques in question. The opposite party No.2 filed the complaint against the petitioner as well as his wife for dishonour of cheques issued by them. The copies of the complaints as at Annexure-2 reveal that for the purpose of opening of business, the petitioner's wife had received the alleged amount and when it was returned with the alleged cheques, both bounced back due to insufficient fund in the account. The petitioner is made an accused in both the complaints by opposite party No.2-complainant. It is alleged that the petitioner was looking after the business and the cheques were issued by him and his accused wife and therefore both are liable for the debt and since the cheques stood dishonoured, an offence under Section 138 of N.I. Act was committed by them.

5. Mr.Mohanty, learned counsel for the petitioner submits that the petitioner is not drawer of the cheques but he has been added as a party to the complaint since his name finds place therein. It is submitted that the petitioner could not have been arrayed as an

Ashish Mohanty Vrs. State of Odisha & Others

accused not being the drawer of the cheques and while contending so, he cites a decision of the Gujarat High Court in the case of Harshad Manubhai Malavaiya Vrs. State of Gujarat decided in Criminal Misc. Application No.19938 of 2016 and disposed of on 4th April, 2017 and another decision of the Apex Court in the case of Alka Khandu Avhad Vrs. Mr. Amar Syamprasad Mishra and Others reported in AIR 2021 SC 1616 and submitted that the petitioner cannot be made liable on any such ground even with the aid of Section 141 of N.I. Act and more fully when he is not the drawer of the cheques.

6. Learned counsel for opposite party No.2 submits that the cheques were signed by the petitioner and his wife and therefore, both of them have been arrayed as accused persons and for the fact that the former was looking after and primarily responsible for running the business though the latter entered into an agreement with the complainant. A copy of the agreement is in record executed on 28th March, 2017 between the parties. The said agreement was between opposite party No.2 and petitioner's wife and in that connection, the latter had received the amount and at the time of its return, the cheques were issued. The petitioner himself filed an affidavit stating therein that he was not a party to the agreement which was between his wife and the complainant and therefore, there was no legally enforceable debt agaist him and he was also not a signatory to the cheques issued. In response to the above, an objection in the shape of affidavit is filed by opposite party No.2 stating therein that the cheques in question were in the name of the petitioner and bore short signatures and therefore, both are liable. In other words, it is alleged that the cheques were drawn by the petitioner and his

Ashish Mohanty Vrs. State of Odisha & Others

wife signed by both with short signatures thereon and hence, they are the drawers of the cheques. The petitioner denied that he as well was the drawer of the cheques. The learned counsel for opposite party No.2 submits that whether it was the signature of the petitioner or whose signature was found on the cheques can only be examined during the time of trial.

7. In Harshad Manubhai Malavaiya (supra), Gujarat High Court held that the prosecution under Section 138 of the N.I. Act can only be initiated against the drawer of the cheque. In the said case, the petitioner had not signed the cheque. It was signed by his wife and not being the signatory to the cheque, it was held that no liability can be fastened on him. The intent and purport of Section 138 of N.I. Act was highlighted in the above decision and ultimately, it was held that the drawer of the cheque only is liable to be prosecuted and not any other person unless the cheque has been signed by each and every person, who is a joint account holder. In the present case, since the cheques are alleged to have been signed (bearing short signatures) which is denied by the petitioner, the Court is of the view that such aspect has to be examined by the learned court below. Whether the petitioner and his wife had a joint account at the relevant point of time and therefore, both had issued the cheques which according to opposite party No.2 had short signatures of the petitioner as well, the Court is of the conclusion that it needs examination during enquiry and in course of trial if he is not discharged on such ground. In Alka Khandu Avhad (supra), the Apex Court had the occasion to discuss the effect of Section 138 read with Section 141 of the Negotiable Instructions Act, 1881 and it was held therein that individuals cannot be held liable for the alleged offence with

Ashish Mohanty Vrs. State of Odisha & Others

the assistance of Section 141 of N.I. Act. While dealing with the matter, the Apex Court held that the word 'company' as appearing in Section 141 of N.I. Act means anybody corporate and includes a firm or other association individuals excluding joint liability of two or more persons and does not fall within the expression 'other association of individuals'. It is settled that the drawer of the cheque is only criminally prosecutable for the offence under Section 138 of N.I. Act and in the present case, the cheques are alleged to be signed by the petitioner and his wife and therefore, both of them have been arrayed as accused in the complaint. No doubt, the petitioner declined to be a party to the cheques which were issued and claimed to have been signed by his wife only but then in view of the objection of opposite party No.2 that the cheques bore short signatures, the Court reiterates its view that the same needs examination by the learned court below during enquiry. The liability vis-à-vis the petitioner, if it is proved that the cheques were signed by him, cannot be avoided on the ground that the other accused wife was the signatory to the agreement executed for the purpose of the business transaction. All such aspects are to be gone into in threadbare for a decision with regard to the liability of the petitioner if he is not discharged during enquiry. The Court does not have the comfort to examine all such issues which are based on record and therefore, it should be left open for the learned court below to deal with.

8. Accordingly, it is ordered.

9. In the result, both the CRLMCs stand disposed of with the liberty allowed in favour of the petitioner to seek discharge on

Ashish Mohanty Vrs. State of Odisha & Others

the grounds so urged and in the event, any such applications are so moved by him, the learned S.D.J.M., Panposh shall consider the same and pass necessary orders thereon in connection with 1CC Case Nos.321 & 322 of 2017.

(R.K. Pattanaik) Judge

Uksahoo