[Cites 8, Cited by 0]
Orissa High Court
Ch. Babula Patra vs Narayan Panigrahy .... Opposite ... on 3 February, 2026
Author: V. Narasingh
Bench: V. Narasingh
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No.360 of 2024
In the matter of an application under Section 401 of
Cr.P.C..
------------------
Ch. Babula Patra .... Petitioner
-versus-
Narayan Panigrahy .... Opposite Parties
For Petitioners : Mr. T. Sahoo, Advocate
For Opposite Party : Mr. R.N. Sahu, Advocate
CORAM:
JUSTICE V. NARASINGH
DATE OF HEARING & JUDGMENT : 03.02.2026
V. Narasingh, J.
1. None appears for the Opposite Party when the
matter is called. There was no appearance on behalf of
the Opposite Party on the previous dates i.e.
22.10.2025, 25.11.2025 & 09.12.2025. Hence, this
Court proceeds to hear the matter on merits.
2. Heard learned counsel for the Petitioner.
3. It is submitted by the learned counsel for the
Petitioner referring to the cross-examination of P.W.1-
the complainant that he never received the demand
notice. Paragraph-31 of the cross-examination which is
germane is extracted hereunder:-
"It is a fact that I have not produced any
document to show that the accused received the
demand notice."
The said demand notice is extracted hereunder for
convenience of ready reference;
4. The attention of this Court is also drawn to
Ext.4-postal receipt of demand notice in question. In
this context Paragraph-9 of the examination in chief
filed by way of affidavit is culled out hereunder:-
"Ext.P./P.W.1 is the postal receipt of the
demand notice sent the accused bearing
no.R09589474551N/ 22.10.2019."
5. On perusal of Ext.4, which is extracted
hereunder, it is seen that item in question was
delivered to one "Mukunda Patra" and referring to
such Ext.4, the learned Trial Court came to the
conclusion that notice was duly served.
6. Referring to the relevant provision of the
Negotiable Instruments Act, 1881, more particularly
Section 1381, it is submitted by the learned counsel for
the Petitioner that service of notice is not in
consonance with the statutory provision and the order
passed by the learned Trial Court holding the
Petitioner guilty of committing the offence under
Section 1381 of Negotiable Instruments Act, 1881
having been passed oblivious of the statutory
requirement of service of notice, the same is liable to
be set-aside.
7. And, it is his further submission that though
such ground was specifically raised before the learned
Appellate Court and the learned Appellate Court in fact
took cognizance of the same in paragraph-5 of its
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 provision 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.
(Emphasized)
judgment. The relevant excerpt of the said paragraph
is extracted hereunder:-
"Further, the appellant / accused has never
received any notice from the respondent
No.2/complainant as alleged."
8. And, referring to the judgment of the Appellate
Court, it is submitted that notwithstanding the specific
stand of the Petitioner that he has not been served
with notice and there being no contra evidence to
repel such stand, the affirmation of the finding by the
learned Sessions Judge has resulted in miscarriage of
justice and is the outcome of patent non application of
mind. As such, the order being perverse, the same
merits interference by this Court in exercise of its
revisional jurisdiction.
To fortify his submission, learned counsel for the
Petitioner relies on the following judgments:-
i) D. Vinod Shivappa vs. Nanda Belliappa2
ii) C.C. Alavi Haji vs. Palapetty Muhammed
and another3
D. Vinod Shivappa v. Nanda Belliappa, (2006) 6 SCC 456
C.C. Alavi Haji v. Palapetty Muhammed, (2007) 6 SCC 555
iii) Shakti Travel & Tours v. State of Bihar4
In Shakti Travel & Tours(Supra)4, the Apex
Court has held thus;
"Xxx xxx xxx
2. Accused who is the Appellant, assails the
order of the High Court refusing to quash the
complaint filed under Section 138 of the
Negotiable Instruments Act. The only ground
on which the learned Counsel for the Appellant
prays for quashing of the complaint is that on
the assertions made in paragraph 8 of the
complaint, it must be held that notice has not
been served and, therefore, an application
under Section 138 could not have been
maintained. Undoubtedly, the accused has a
right to pay the money within 15 days from
the date of the service of notice and only
when it fails to pay, it is open for the
complainant to file a case under Section 138
of the Negotiable Instruments Act. That being
the position and in the complaint itself having
not been mentioned that the notice has been
served, on the assertions made in paragraph
Shakti Travel & Tours v. State of Bihar, (2002) 9 SCC 415
8, the complaint itself is not maintainable. We
accordingly quash the complaint.
Xxx xxx xxx"
The law laid down in D. Vinod
Shivappa(Supra)2 and C.C. Alavi Haji(Supra)3 have
no application to the case at hand.
9. This Court perused the deposition of P.W.1 as
well as the order of the learned Magistrate. On a bare
perusal of the same, it is established that notice
admittedly was issued to the Petitioner in terms of the
Section 138(b)1 of the Negotiable Instruments Act,
1881.
9-A. It is borne out from evidence on record that the
said notice was not received by the present Petitioner-
the accused but by one "Mukunda Patra".
10. In fact no contra evidence is led to establish
that notice is in fact received by the Petitioner.
11. It is seen that the learned Appellate Court
though has adverted to the specific ground as urged
by the accused-Petitioner that he has not received any
notice, while passing the judgment has not even
referred to the Ext.4-the notice as adverted to
hereinabove.
Since the mandatory statutory prescriptions
under Section 138(b)1 of Negotiable Instruments Act,
1881 has not been followed in the case at hand, this
Court is persuaded to quash the proceeding.
12. Accordingly, the judgment dtd.18.10.2023 in
ICC No.514 of 2019 passed by the J.M.F.C.(T),
Berhampur is quashed.
13. Consequentially, the amount deposited during
the pendency of the CRLA No.61 of 2023, which is
stated to be in deposit with the learned Appellate
Court shall be released in favour of the Petitioner on
proper identification.
14. The CRLREV is accordingly disposed of.
15. In view of disposal of CRLREV, pending I.As., if
any, also stand disposed of.
Judge
ROUTHigh Court, Cuttack,
Dated the 3rd February, 2026/Ayesha
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 09-Feb-2026 20:35:42
