Orissa High Court

Aneel Kumar Dasbarma vs State Of Odisha And Another ....... Opp. ... on 5 May, 2025

          THE HIGH COURT OF ORISSA AT CUTTACK

                       CRLMC No.4105 of 2022

 (In the matter of an application under Section 482 of the Code of Criminal
Procedure, 1973)



Aneel Kumar Dasbarma                            .......         Petitioner

                                  -Versus-

State of Odisha and another            .......               Opp. Parties


      For the Petitioner    : Mr. Sukanta Kumar Dalai, Advocate

      For the Opp. Parties :    Mr. S. J. Mohanty, Additional Standing
                                                       Counsel
                               Mr. B. K. Mohapatra, Advocate for O.P.2


   CORAM:

    THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing:15.04.2025        ::     Date of Judgment: 05.05.2025

S.S. Mishra, J. The opposite party No.2 has initiated a complaint case

being 1.C.C. Case No.3971 of 2022 under Section 138 of the N.I. Act

against the petitioner. The learned S.D.J.M., Bhubaneswar vide its order

dated 04.08.2022 has taken cognizance of the offence under Section 138

of the N.I. Act on the complaint of the opposite party No.2. The
 petitioner is aggrieved by the said order and has filed the present petition

assailing the same.

2.    The facts as emanating from the petition filed by the petitioner, is

that the petitioner has been working as a Branch Manager of IDBI Bank.

He promised to sanction loan of Rs.20,00,000/- to the opposite party

No.2 on the condition that the complainant/opposite party No.2 shall pay

Rs.1,70,000/- in advance towards the loan processing fees which was

paid in cash. However, the petitioner was unable to sanction the loan. On

the pressure of the local gentries, the petitioner had to issue a cheque of

Rs.1,61,000/- and paid Rs. 9,000/- in cash. The complainant/opposite

party No.2 deposited the cheque on 18.02.2022 which was cleared by his

banker on 21.02.2022 and alertness in the phone/message was also

received by him. The petitioner objected to the said debit. Hence, the

bank immediately credited the amount to the account of the petitioner.

The banker sent an information to the opposite party No.2 regarding

dishonor of the cheque as "drawer signature" was mismatched. On

25.03.2022

, the opposite party No.2 sent a legal notice to the petitioner.

However, no complaint was filed pursuant to the said notice, rather on

04.05.2022, the opposite party No.2 once again deposited the same

cheque. On the said cheque being dishonoured, the opposite party No.2

for the second time issued legal notice on 16.05.2022 and on 05.07.2022

filed the complaint petition against the petitioner.

3. Heard Mr. Sukanta Kumar Dalai, learned counsel for the

petitioner, Mr. Sarathi Jyoti Mohanty, learned Additional Standing

Counsel for the State and Mr. Birendra Kumar Mohapatra, learned

counsel for the opposite party No.2.

4. Mr. Dalai, learned counsel for the petitioner submitted that on the

admitted factual position in the present case, no case under Section 138

of the N.I. Act is made out against the petitioner because the prime

ingredient for the commission of the offence is missing. He submitted

that on the two eventualities, the complainant/opposite party No.2 could

have initiated a complaint under Section 138 of the N.I. Act. Firstly, if

the cheque is dishonoured due to insufficient funds and secondly, if the

cheque is dishonoured because of the exceeding the amount arranged to

be paid from his bank. On the contrary, in this case, the cheque was

encashed at the first instance and subsequently the money was credited

back to the account of the petitioner. Apart from that, admittedly the

cheque was firstly dishonoured for the reason that "drawer signature

differed" and for the second time, it was dishonoured for the reason that

"item listed twice".

5. Mr. Dalai, learned counsel for the petitioner further submitted that

for either of the reasons as mentioned above, if the cheque is

dishonoured, the case under Section 138 of the N.I. Act does not lie as

the prime ingredient is not satisfied. He further submits that the opposite

party No.2 has firstly issued a legal notice under Section 138(b) of the

N.I. Act to the petitioner on 25.03.2022 and the complaint petition was

filed on 05.07.2022. Therefore, it is the beyond period of limitation

prescribed. He has also relied upon various judgments.

6. I have carefully gone through the complaint and the annexure

enclosed with the complaint petition and the law operating in the field. It

is apparent on record that initially the opposite party No.2 issued the

statutory legal notice on 25.03.2022. However, the petitioner did not

reply to the same rather reading of the complaint petition in paragraph-

8(iii) reveals that the petitioner has requested the opposite party No.2 to

represent the cheque once more. The said paragraph reads as under:-

"8(iii) That, thereafter, the complainant had issued a statutory legal notice through his advocate by Regd. Post with A.D. on 25.03.2022 to the correct address of the accused asking him to pay the cheque amount of Rs. 1,61,000/- (Rupees one lakh sixty one thousand) only to him within 15 days from the date of receipt of the notice, but the accused received the said notice and requested the complainant that he will rectify his signature in his bank."

7. The complaint reveals that on the request of the petitioner for the

second time the cheque was deposited by the opposite party No.2 with

his banker. On 06.05.2022, the banker communicated the opposite party

No.2 with a memo that the cheque has been dishonoured for the reason

"item listed twice". Therefore, on 20.05.2022, statutory legal notice was

again issued to the petitioner. The contents of the complaint reveal that

even for the second time, the petitioner did not reply to the statutory

notice after duly receiving the same. Hence, the opposite party No.2 filed

the complaint on 05.07.2022. In the backdrop of the above facts, relevant

would be to reproduce Section 139 of the N.I. Act and Section 114 of the

Evidence Act:-

―Section 139 of NI Act. Presumption in favour of holder.-- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability."

Section 114 of the Indian Evidence Act. Court may presume existence of certain facts. -- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case."

8. The N.I. Act is a special statute. The scheme of law is that if the

cheque is dishonoured for any reason, the drawee of the cheque needs to

give a statutory notice under Section 138(b) of the N.I. Act to drawer of

the cheque by providing him an opportunity to rectify the mistake and

pay back the cheque amount. Within the time frame of fifteen days, if the

mistake is not rectified by the drawee of the cheque, the complaint is

instituted. None response to the statutory notice under Section 138(b) of

the N.I. Act operated the presumption under Section 139 of the N.I. Act

against the drawer of the cheque. The presumption is a rebuttable

presumption. Hence, the burdenship lies on the accused, drawer of the

cheque to rebut the presumption. In the instant case, admittedly, the

petitioner did not reply to both the notices issued by the opposite party

No.2. Therefore, apparently the presumption operates against the

petitioner. The contention of the petitioner is that the cheque was

presented by the opposite party No.2 and the amount was transferred and

thereafter re-transferred to the petitioner's account, which fact has been

informed to the bank concerned is a disputed question of fact needs to be

established on record by leading appropriate evidence while discharging

the burden of presumption by the petitioner. Of course, it is true that if

on presentation of cheque, the amount was temporarily transferred to the

account of the opposite party No.2 by debiting from the account of the

petitioner, and then in that case, the offence under Section 138 of the N.I.

Act cannot be made out. However, this aspect of the matter needs to be

established on record by leading appropriate evidence either

documentary or otherwise. At the stage of cognizance, this Court is

forbidden to evaluate the probable defence of the petitioner. This Court

at the stage of cognizance cannot abruptly scuttle the trial particularly

when the presumption under Section 139 of the N.I. Act read with

Section 114 of the Evidence Act operates against the petitioner.

9. Learned counsel for the petitioner has taken me to the numerous

documents to establish his case. The petitioner has also filed the bank

statement to establish the fact that the cheque initially deposited by the

opposite party No.2 was encashed and transferred to his account

temporarily and retransferred to the account of the petitioner on protest.

The bank statement needs to be proved on record by leading appropriate

evidence. This Court at this stage cannot accept the probative value of

the documentary evidence sought to be relied upon by the petitioner to

justify his case by scuttling the trial at the threshold. Therefore, the

inevitable conclusion in the present case is that the petitioner needs to

face the trial and establish his case by discharging his burden on rebuttal.

10. In view of the above discussion, it becomes abundantly clear that

at the stage of cognizance, this Court ought not to interfere with the

proceedings or examine the probable defence materials in detail. The

petitioner's contention and documents, including the bank statement,

require proper adjudication through evidence during trial. At this

juncture, when the statutory presumptions under Sections 139 of the N.I.

Act and 114 of the Evidence Act operate against the petitioner and

cognizance has already been taken, this Court finds no justification to

quash the complaint. The judgment in Sonu Gupta v. Deepak Gupta1

further settles this position, wherein the Hon'ble Supreme Court has

held:

"7. Considering the stage at which the criminal complaint is pending and the nature of the proposed order, this Court would not like to express any definite opinion on the merits of the allegations made in the complaint petition or upon the defence taken by the accused persons before the courts below or in this Court lest it prejudices one or the other party in future.

8. Having considered the details of allegations made in the complaint petition, the statement of the complainant on solemn affirmation as well as materials on which the appellant placed reliance which were called for by the learned Magistrate, the learned Magistrate, in our considered opinion, committed no error in summoning the accused persons. At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or, in other words, to find out whether prima facie case has been made out for summoning the accused persons. At this stage, the learned Magistrate is not required to consider the defence version or materials or arguments nor is he required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials will lead to conviction or not.

9. It is also well settled that cognizance is taken of the offence and not the offender. Hence at the stage of framing of charge an individual accused may seek discharge if he or she can show that the materials are absolutely insufficient for framing of the charge against that particular accused. But such exercise is required only at a later stage, as indicated above and not at the stage of taking cognizance and summoning the accused on the basis of prima facie case. Even at the stage of framing of charge, the sufficiency of materials for the purpose of conviction is not the requirement and a prayer for discharge can be allowed only if the court finds that the materials are

(2015) 3 SCC 424

wholly insufficient for the purpose of trial. It is also a settled proposition of law that even when there are materials raising strong suspicion against an accused, the court will be justified in rejecting a prayer for discharge and in granting an opportunity to the prosecution to bring on record the entire evidence in accordance with law so that case of both the sides may be considered appropriately on conclusion of trial."

In light of the above settled legal position and the facts at hand,

this Court finds no manifest error or legal infirmity in the order of

cognizance dated 04.08.2022 passed in 1.C.C. Case No.3971 of 2022 by

the learned S.D.J.M., Bhubaneswar. The petitioner is at liberty to raise

all permissible defences and substantiate his claims by leading cogent

evidence during trial. Interference at this preliminary stage would be

premature and unwarranted, particularly when the proceedings are at the

threshold and governed by statutory presumptions under the N.I. Act.

11. Accordingly, the CRLMC is dismissed.

(S.S. Mishra) Judge

The High Court of Orissa, Cuttack Dated the 5th of May, 2025/ Swarna

Designation: Senior Stenographer