Orissa High Court
Sivananda Choudhury vs State Of Orissa And Another .... ... on 19 November, 2025
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No.239 of 2022
Sil
Sivananda Choudhury .... Petitioner
Mr. A. Bhuyan, Advocate
-Versus-
State of Orissa and another .... Opposite Parties
Mr. S.K. Swain. AGA
Mr. S. K. Dash, Advocate
Mr. H. Mohanta, Advocate for O.P.No.2
CORAM:
MR. JUSTICE R.K. PATTANAIK
ORDER
19.11.2025
Order No.
13. 1. Heard Mr. Bhuyan, learned counsel for the petitioner
and Mr. Mohanta, learned counsel appearing on behalf of Mr.
Dash, learned counsel for opposite party No.2.
2. Instant revision petition is filed by the petitioner
challenging the impugned judgment dated 27th April, 2022
passed in connection Criminal Appeal No.22 of 2016 by the
learned 1st Additional Sessions Judge, Berhampur on the
grounds stated.
3. Opposite party No.2 filed the complaint in 1CC Case
No.384 of 2013 alleging the petitioner to have committed an
offence punishable under Section 138 of the NI Act with the
claim that the latter issued an advance cheque dated 24th March,
2013 for amount of Rs.4.5 lac from ICICI Bank, Berhampur
towards discharge of a debt and the same, on being presented
for encashment, stood dishonored on the ground of insufficient
fund in the account. Considering the complaint, the learned
Special Judicial Magistrate, Berhampur disposed it of with the
finding that the petitioner is guilty of the alleged offence and
convicted him thereunder. The petitioner after such conviction
was directed to undergo SI of one year and to pay
compensation of Rs.5 lac to opposite party No.2 and in default
to undergo further sentence of six months. The said order of
conviction and sentence was challenged in appeal before the
learned court below but it has been dismissed vide Annexure-2.
4. Recorded the submission of Mr. Bhuyan, learned
counsel for the petitioner. According to the petitioner, he had
given an advance cheque not in connection with a legally
enforceable debt, which was mis-utilised by opposite party
No.2, hence, therefore, no offence under Section 138 of the NI
Act has been established. However, the learned Courts below
concluded otherwise and convicted the petitioner under Section
138 NI Act. It is submitted that between the statutory period,
the complaint was not filed and the same has not been taken
cognizance by the court of 1st instance and in appeal and
therefore, the impugned order of conviction and sentence is
liable to be set aside.
5. Mr. Mohanta, learned counsel for the opposite party
No.2 justifies the impugned judgment at Annexure-2.
6. Admittedly, the cheque was issued and received by
opposite party No.2 for an amount of Rs.4.5 lac and it was
drawn on ICICI Bank. It is not in denial by the petitioner that
the cheque was issued by him but the plea is that it was an
advance cheque without any lawful debt created. The learned
Special Judicial Magistrate, Berhampur considered the
evidence received from opposite party No.2 only, as no
evidence was adduced from the side of the petitioner.
Considering the claim of opposite party No.2 and since alleged
cheque was received by her and as no such plea that the cheque
in question was an advance cheque was ever raised before the
learned court below, the Court is not inclined to accept such a
ground at present. As regards, the complaint not filed within the
stipulated period, similarly the ground was never agitated
before the learned Courts below. The petitioner though filed an
appeal challenging the order of conviction and sentence under
Section 138 of the NI Act did not raise the above ground and as
a result, the decision of the learned Special Judicial Magistrate,
Berhampur was confirmed.
7. The law is settled that when a cheque is issued, the
presumption lies in favour of existence of a lawful debt and in
that case, it is for the accused to submit evidence in rebuttal.
But, in the case at hand, the petitioner did not adduce any
evidence be it, oral or documentary. The plea with regard to
advance cheque issued having no lawful debt to discharge and
demand notice followed by complaint not filed within
stipulated period have not been raised earlier. Considering the
evidence on record, it can therefore be said that the learned
Court below did not err in holding the petitioner guilty for an
offence punishable under Section 138 NI Act. The offence is a
technical one and therefore, issuance of cheque without any
rebuttal evidence received from the side of the petitioner leads
to an inevitable conclusion about existence of a lawful debt to
discharge and therefore, it has to be held that the order of
conviction and sentence as at Annexure-1 is rightly upheld in
appeal vide Annexure-2, which needs no interference.
8. Accordingly, it is ordered.
9. In the result, the revision petition stands dismissed.
(R.K. Pattanaik)
Judge
TUDU
