Orissa High Court
Smt. Jitramayee Das vs Pranab Kumar Das .... Opposite Party(S) on 31 January, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No. 357 of 2025
Smt. Jitramayee Das .... Petitioner(s)
Mr. Digambara Mishra, Advocate
-versus-
Pranab Kumar Das .... Opposite Party(s)
CORAM: JUSTICE SIBO SANKAR MISHRA
ORDER
31.01.2025
Order No. I.A. No. 283 of 2025
01. 1. This application has been filed for dispensing with filing of
certified copy of the complaint in ICC No. 706 of 2024 pending
before the learned JMFC (City), Cuttack under Annexure-1.
2. For the reasons stated in the application, the same is
allowed.
3. The I.A. is accordingly disposed of.
(S.S. Mishra)
Judge
CRLMC No. 357 of 2025 & I.A. No. 191 of 2025
1. Heard.
2. Mr. Mishra, learned counsel for the petitioner submits that
the petitioner has been prosecuted for the alleged commission of
offence punishable under Section 138 of N.I. Act for dishonour of a
cheque which has been missing, for which an FIR has already been
registered.
3. The notice issued to the petitioner under Section 138 (b) of
the N.I. Act was adequately replied by the petitioner stating inter
alia as under:-
"You, the Noticee is made known that the cheque in
question bearing No.069000 drawn on Indian Bank was
lost and FIR was lodged m respect thereof, affidavit was
duly executed, publication was duly made in the
newspaper and the purported cheque was utilized
mischievously for wrongful gain unto yourself to cause
wrongful loss with a pure and clear intention of
cheating. The entire intention of you, the Noticee is
illegal extortion of money, which is a culpable offence
punishable under the Bharatiya Nagaiik Suraksha
Sanhita, 2023. In view of the aforesaid, not only the
presentation of cheque is abinitio void but also contrary
to the existing facts and also is misconceived. The
alleged presentation as well as intimation by the
concerned Bank is also misnomer and there is no cause
to present the missing cheque. Consequent upon the
missing FIR as well as publication in the newspaper,
our Banker was duly notified with stop payment notice
and, accordingly, our Banker did not and cannot honour
the missing cheque. Therefore, you, the Noticee stop
haunting a cause of action, failing which you, the
Noticee will be prosecuted criminally and also will be
dragged to the Civil Court for adequate compensation
according to my stature."
4. On the premises of the aforementioned facts, Mr. Mishra,
learned counsel or the petitioner submits that the cheque, dishonor
of which has been made the cause of action for prosecuting the
petitioner under Section 138 of the N.I. Act is not negotiable
instrument in the eyes of law. He has relied upon the judgment of
the Hon'ble Supreme Court in the case of Raj Kumar Khurana v.
State of (NCT of Delhi) and another, reported in (2009) 6 SCC 72.
Paragraphs-1 and 10 of the judgment in Raj Kumar Khurana
(supra) have been emphatically relied upon by Mr. Mishra, learned
counsel for the petitioner, which reads as under:-
"1. Whether return of a cheque by the bank on the ground that it
was reported lost by the drawer would attract the penal
provisions contained in Section 138 of the Negotiable Instruments
Act, 1881 (for short "the Act") is the question involved in this
appeal. It arises out of a judgment and order dated 18.09.2007
passed by the High Court of Delhi in Criminal M.C. No. 2890 of
2007.
xxx xxx xxx
10. Section 138 of the Act reads as under:-
"138 - Dishonour of cheque for insufficiency, etc., of funds in the
account- Where any cheque drawn by a person on an account
maintained by him with a banker for payment of any amount of
money to another person from out of that account for the
discharge, in whole or in part, of any debt or other liability, is
returned by the bank unpaid, either because of the amount of
money standing to the credit of that account is insufficient to
honour the cheque or that it exceeds the amount arranged to be
paid from that account by an agreement made with that bank,
such person shall be deemed to have committed an offence and
shall, without prejudice to any other provisions of this Act, be
punished with imprisonment for a term which may extend to two
years, or with fine which may extend to twice the amount of the
cheque, or with both:
Provided that nothing contained in this section shall apply
unless-
(a) the cheque has been presented to the bank within a
period of six months from the date on which it is drawn
or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque,
as the case may be, makes a demand for the payment
of the said amount of money by giving a notice in
writing, to the drawer of the cheque, within thirty
days of the receipt of information by him from the
bank regarding the return of the cheque as unpaid;
and
(c) the drawer of such cheque fails to make the payment
of the said amount of money to the payee or, as the
case may be, to the holder in due course of the
cheque, within fifteen days of the receipt of the said
notice
Explanation- For the purposes of this section, "debt or other
liability" means a legally enforceable debt or other liability.
A bare perusal of the aforementioned provision would clearly go
to show that by reason thereof a legal fiction has been created. A
legal fiction, as is well known, although is required to be given
full effect, has its own limitations. It cannot be taken recourse to
for any purpose other than the one mentioned in the statute itself.
In State of A.P. v. A.P. Pensioners' Association and others, this
Court held:-
"...In other words, all the consequences ordinarily
flowing from a rule would be given effect to if the
rule otherwise does not limit the operation thereof.
If the rule itself provides a limitation on its
operation, the consequences flowing from the legal
fiction have to be understood in the light of the
limitations prescribed. Thus, it is not possible to
construe the legal fiction as simply as suggested by
Mr. Lalit."
5. Issue notice.
6. Notice be issued to the sole opposite party by Speed
Post/Registered post with A.D., fixing short returnable date.
Requisites shall be filed within three working days.
7. In the meantime, the proceeding in ICC No.706 of 2024
pending before the learned J.M.F.C. (City), Cuttack is stayed till the
next date of hearing.
8. List this matter on 08.04.2025.
(S.S. Mishra)
Judge
Ashok
Signed by: ASHOK KUMAR JAGADEB
Location: High Court of Orissa, Cuttack
Date: 31-Jan-2025 18:43:44
