Orissa High Court
Jyoti Prakash Behera vs Bhimsen Samal ..... Opposite Party on 2 September, 2025
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLLP No.56 of 2022
Jyoti Prakash Behera ..... Petitioner
Represented By Adv. -
Subrat Kumar Nayak 3
-versus-
Bhimsen Samal ..... Opposite Party
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR
MOHAPATRA
ORDER
02.09.2025
Order No.
06. 1. This matter is taken up through Hybrid mode.
2. Heard learned counsel for the Petitioner. Perused the
application as well as documents annexed thereto.
3. Although notice was issued to the sole Opposite Party and
Mr. Achutananda Pattanaik, learned counsel has although entered
his appearance for the Opposite Party, however, none appears on
behalf of the Opposite Party. On perusal of the order sheet, it
appears that on the last occasion also when the matter was taken up
on 21.08.2025 the counsel for the Petitioner was present and none
appeared on behalf of the Opposite Party. Therefore, this Court has
a reason that the notice has been made sufficient on the sole
Opposite Party.
4. By filing the present application under Section 378(4) of
Cr.P.C., the Petitioner who was the complainant in ICC No.148 of
2020, corresponding to Trial No.17 of 2022 has sought for leave to
prefer an appeal against the judgment dated 28.09.2022 passed by
the learned J.M.F.C., Bhadrak in ICC No.148 of 2020,
corresponding to Trial No.17 of 2022.
5. Learned counsel for the Petitioner at the outset contended that
the Opposite Party-accused had taken two harvesting machines from
the complainant-Petitioner for harvesting paddy. The accused
agreed to pay an amount of Rs.16,00,000/- (sixteen lakhs only)
towards the charges of the harvesting machine, but he did not pay
the money. Thereafter, the accused issued two cheques of
Rs.8,00,000/- (eight lakhs only) on 29.06.2020 in favour of the
complainant. The complainant presented the cheques for
encashment before the HDFC Bank, Bhadrak. The drawee Bank
returned the cheques with intimation that there is no funds in the
account of the accused, i.e. in the slip there was an endorsement of
"insufficient of funds". Thereafter the complainant served an
advocate's notice on 06.07.2020 demanding the cheque amount.
Since the accused did not pay the demanded amount the
complainant-Petitioner filed the complaint case alleging commission
of an offence punishable under Section 138 of N.I. Act. On filing of
the complaint, cognizance was taken under Section 138 of N.I. Act.
Finally the accused faced trial. The learned trial Court vide
judgment dated 28.09.2022 acquitted the accused of the charges
under Section 138 of N.I. Act holding that the complainant has
failed to prove the case.
6. In course of his argument, learned counsel for the Petitioner
emphatically argued that the legal presumption with regard to the
liability against the accused as contained in Section 139 of the N.I.
Act has been given a complete go-by by the learned trial Court
while conducting the trial. He further submitted that in view of the
provision contained under Section 139 of N.I. Act there is a
presumption against the accused unless the contrary is proved. In
the aforesaid context, learned counsel for the Petitioner further
contended that the learned trial Court has proceeded as if the entire
burden is on the complainant to establish the purpose for which the
cheques were issued and the same got dishonored subsequently. In
course of his argument, learned counsel for the Petitioner referred to
the judgment of Hon'ble Supreme Court in the case of K.N. Beena
v. Muniyappan and another reported in AIR 2001 SC 2895. In
support of his contention and contended that the learned trial Court
proceeded on an erroneous scrutiny, i.e. on the basis that the burden
of proving the consideration for a dishonored cheque is on the
complainant. In the said judgment the Hon'ble Supreme Court,
referring to the provisions contained in Sections 118 and 139 of the
N.I. Act, has held that unless the contrary is proved it is to be
presumed that the negotiable instrument has been issued as
presented for payment for a consideration. Moreover, Section 139 of
N.I. Act clearly provides that unless the accused dislodges the initial
presumption there is no burden of prove on the complainant to
establish that the instrument/cheque was issued for due discharge of
a liability.
7. On a close scrutiny of the impugned judgment, this Court is
of the view that there are good grounds to file an appeal against the
judgment of acquittal. In view of the aforesaid analysis, the leave
petition filed by the complainant is allowed. Accordingly, the
petitioner is granted leave to file an appeal within 30 days.
8. Accordingly, the CRLLP application stands allowed.
( Aditya Kumar Mohapatra )
Judge
S.K. Rout
Digitally Signed Page 4 of 4.
Location: High Court of Orissa, Cuttack
Date: 04-Sep-2025 12:29:19
