[Cites 6, Cited by 0]
Orissa High Court
Dr. Anil Kumar Pradhan vs Bijay Prasad Gupta .... Opposite Party on 30 March, 2026
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No.68 of 2024
Dr. Anil Kumar Pradhan .... Petitioner
Mr. K.K. Mishra, Advocate
-Versus-
Bijay Prasad Gupta .... Opposite Party
Mr. A.P. Bose, Advocate
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF HEARING:11.12.2025
DATE OF JUDGMENT:30.03.2026
1.
Instant revision is filed under Section 401 read with
Section 397 Cr.P.C. by the petitioner assailing the impugned
order of conviction and sentence dated 30th May, 2022
passed in connection with 1CC No.16 of 2019 by learned
JMFC, Champua as at Annexure-2 and the judgment dated
29th January, 2024 confirming the same by learned
Additional Sessions Judge, Champua in Criminal Appeal
No. 07 of 2022 under Annexure-3 on the grounds inter alia
that such decision is unjust, illegal and perverse and hence,
liable to be set aside for the ends of justice.
2. A complaint was filed by the opposite party in 1CC
No.16 of 2019 before the Court of learned JMFC, Champua
stating therein that he and one Antaryami Mishra were
dealing with wholesale business of Parle-G, Britannia, Diary
Milk and other products and in the year, 2015 and 2016 and
had opened a canteen-cum-coffee stall and at that time, the
petitioner, a permanent resident of Champua and Dentist by
profession asked for financial help on different occasions. It
has been further pleaded that the petitioner used to pay back
the money in 6 to 8 months' time and in the year, 2016,
when he was facing financial difficulties sought help and in
return, the opposite party arranged and helped him for a sum
of Rs.10,00,000/- with an assurance of repayment and at the
same time, issued two cheques and when demanded for
refund in the year, 2018, it was evaded by him citing family
problems and at last, when he failed to receive back the
money, finding no other alternative, reported the same to the
local police and in the meantime, the alleged cheque was
presented in the Bank but it could not be honoured due to
insufficiency of funds duly intimated and upon such
intimation received and after notice dated 22nd April, 2019,
the petitioner did not take any step for repayment and
maintained silence and thereafter, the complaint was filed
with delay but it was condoned by order dated 11th
September, 2019.
2.1. In support of issuance of cheque and the liability
against the petitioner, the opposite party examined himself
as C.W.1 and another witness, namely, C.W.2, whereas, the
petitioner examined him as D.W.1. In support of the case,
the opposite party proved nine exhibits but in the defence,
no documentary evidence was adduced by the petitioner.
The petitioner denied any such friendly loan received from
the opposite party. Rather, while being examined under
Section 313 Cr.P.C., the petitioner claimed that that he had
given cheque to the opposite party but never received
Rs.10,00,000/- from him as loan. Considering the evidence
received on record, learned JMFC, Champua found the
petitioner guilty for the offence under Section 138 of the
Negotiable Instrument Act (hereinafter referred to as 'the
Act') and convicted him thereunder and directed to pay a
sum of Rs.12,62,500/- to the opposite party as compensation
under Section 357(3) Cr.P.C. to be realised as a fine with a
default sentence of SI for six months besides a sentence of
S.I. of eighteen months with a conclusion that the plea
advanced by him is unworthy of acceptance. It has been
concluded further that the petitioner failed to rebut the
presumption vis-à-vis liability. Being unsuccessful, the
petitioner filed Criminal Appeal No.07 of 2022 but it was
dismissed by the learned Additional Sessions Judge,
Champua. Against the order of confirmation in the appeal
dated 29th January, 2024, the petitioner filed the revision.
3. Heard Mr. Mishra, learned counsel for the petitioner
and Mr. Bose, learned counsel for the opposite party.
4. The impugned judgments in 1CC No.16 of 2019 and
Criminal Appeal No.07 of 2022 as at Annexure-2 & 3 have
been challenged by the petitioner on the following grounds,
such as (i) the order of conviction and sentence and its
confirmation is perverse and liable to be quashed; (ii) the
prosecution miserably failed to prove the case beyond all
reasonable doubt; (iii) due to acquaintance of the opposite
party with the petitioner, the latter managed the cheque and
created a fabricated story about a friendly loan; (iv) the
opposite party does not have the capacity to lend money to
the petitioner and therefore, the learned courts below ought
not to have believed any such claim of friendly loan given
by him to the petitioner; and (v) the evidence of C.W.1
reveals that the money had been given in presence of C.W.2
but such claim has not been supported by the former but the
learned court below ignored the same and erroneously
convicted the petitioner and therefore, the impugned
judgments at Annexure-2 & 3 are to be set aside being
illegal and not sustainable in the eyes of law.
5. Mr. Mishra, learned counsel for the petitioner submits
that in absence of any debt or liability to be borne by the
petitioner and when the evidence led by him is credible, the
learned courts below could not have rejected the defence
and directed his conviction. The submission is that the plea
of the opposite party is not trustworthy, as he has no
financial capacity to give a friendly loan to the petitioner.
Furthermore, no material was placed on record by the
opposite party to show that in connection with any such
liability that the cheque was issued by the petitioner, hence,
according to Mr. Mishra, learned counsel for the petitioner,
the court below fell into gross error in passing the order of
conviction confirmed in appeal.
6. On the other hand, Mr. Bose, learned counsel for the
opposite party submits that the conviction is perfectly
justified and also the sentence, since the opposite party
successfully proved the fact of friendly loan given to the
petitioner. It is submitted that a presumption is drawn in
favour of the holder of the cheque in terms of Sections 118
& 139 of the Act and therefore, it has been rightly taken
cognizance of by the learned courts below and in absence of
any evidence in rebuttal, it was followed by conviction. The
further submission is that the learned JMFC, Champua
discussed the evidence on record and ultimately arrived at a
conclusion that the cheque was issued for a debt and since it
was not honoured due to insufficient fund in the account of
the petitioner and repayment was not made in spite of the
notice within thirty days, upon filing of the complaint
condoning the delay therein, rightly directed that the
petitioner is guilty of the offence under Section 138 of the
Act and consequently, imposed the sentence and
compensation, hence, the impugned judgments as at
Annexure-2 & 3 do not suffer from any infirmity.
7. Whether the petitioner had issued the cheque in due
discharge of any such liability? The evidence was discussed
by both the learned courts below. In fact, the drawal of the
cheque by the petitioner and receipt of the same by the
opposite party has been reasonably proved with the
evidence on record supported by an independent witness
examined as C.W.2. According to the opposite party,
namely, C.W.1, the cheque was issued by the petitioner for
clearing payment of the friendly loan. When the cheque was
found in the custody of the opposite party, according to the
Court, it was for the petitioner, who examined himself as
D.W.1, to explain. It has been deposed by the opposite party
that the alleged cheque was received by him from the
petitioner towards payment of the loan. In response to the
above, D.W.1 denied any such friendly loan and claimed
that the opposite party has no capacity to give him
Rs.10,00,000/-, as he has no business of his own, rather, the
cheque was stolen from his Clinic and has filed a false
affidavit, but from the evidence on record, it is made to
reveal that the opposite party was running a partnership
business with C.W.2 at the relevant point of time and both
were dealing with wholesale business in biscuit products.
Both the opposite party and the other witness, namely,
Antaryami Mishra, were cross-examined but nothing
adverse could be elicited from them to show that the former
did not have the means to give him a loan of Rs.10,00,000/-.
As to the theft of the cheque from his Clinic, the learned
courts below found that the petitioner did not lodge any
report with the police and hence, considered the plea as an
afterthought. The Court is equally of the conclusion that the
petitioner having not lodged any complaint with the local
police for the theft of the cheque, any such plea by him
during trial could not have been accepted and was rightly
rejected. The Court considering the materials on record
arrives at a conclusion that such a plea by the petitioner
could not have been accepted. Furthermore, the legal notice
was not responded by the petitioner. No such ground was
raised before regarding incapacity of the opposite party
while the petitioner was examined under Section 313
Cr.P.C., instead, he simply denied about friendly loan and
issuance of any such cheque towards its refund. If there is
no jurisdictional wrong or perversity in a decision and it has
been followed by affirmation in appeal, this Court
exercising revisional jurisdiction is not to unsettle the
concurrent findings of the learned courts below being alive
to the decision of the Apex Court in Bir Singh Vrs.
Mukesh Kumar (2019) 4 SCC 197.
8. Insofar as Section 118 of the Act is concerned, a
presumption is drawn that a cheque is issued for
consideration. Similarly, in view of Section 139 of the Act,
presumption lies in favour of the holder of the cheque that it
was drawn and issued to him towards discharge of a
liability. Once such a presumption is drawn, it is for the
accused to rebut it by leading evidence. In the instant case,
though, the petitioner examined himself as D.W.1 but could
not dislodge the presumption. The plea of theft has been
found false as no report was lodged with the police by the
petitioner. In absence of any such probable defence from the
side of the petitioner, the presumption is that the cheques
were issued for liability and it was drawn and handed over
to the opposite party for a consideration and to clear the
friendly loan. In the case at hand, the cheque was signed,
but it was filled up by the opposite party and presented
before the Bank. When the plea of theft has been rejected, it
has to be presumed that such a cheque signed by the
petitioner was given to the opposite party in discharging
liability and towards refund of the friendly loan. Therefore,
on any such ground, the petitioner cannot absolve himself
when the presumption is in favour of a debt. It is well
settled that a presumption would arise in terms of Section
139 of the Act. It is a reverse presumption and hence, it was
for the petitioner to submit defence in rebuttal. An accused
in case under Section 138 of the Act is required to put up a
defence, which is acceptable and not to prove it beyond
reasonable doubt but by preponderance of probabilities and
the said aspect has been considered by the learned courts
below. Mere denial about the liability by itself is not
sufficient for the petitioner to wriggle out of the debt as it is
reasonably proved by the opposite party that there was a
friendly loan and hence, the alleged cheque was issued. The
presentation of the cheque in the Bank, its dishonour and
intimation that it had bounced back for insufficiency of
funds have been well proved by the opposite party. When
legal notice was issued, it is marked as Ext.3, upon
receiving the cheque, return memo, i.e., Ext.2, in respect of
the cheque marked as Ext.1 and such receipt of notice
having been proved vide Exts.4 & 5, it can be said that the
opposite party successfully proved that the ingredients of
Section 138 of the Act. When a presumption is in favour of
the opposite party in respect of the friendly loan for an
amount of Rs.10,00,000/- and that, in connection therewith,
he said to have received the cheque from the petitioner and
it was presented for encashment and dishonoured, it shall
have to be held that the burden of proof is discharged. In
fact, the onus stood shifted to the petitioner to discharge and
rebut the presumption. When no evidence was led by the
petitioner to rebut the presumption in favour of the opposite
party, it has to be held that there was a liability. Considering
the case laws cited by the learned counsel and having regard
to the settled position of law, the conclusion of the Court is
that there is no error or illegality in the decision of the
learned courts below.
9. In case of perversity, a finding is to be interfered with.
If there is a concurrent finding of fact by the learned courts
below and it is found to be not perverse leading to a
miscarriage of justice, the same is not to be interfered with
while exercising revisional jurisdiction. It is well-
established principle of law that a revisional court is not to
interfere even if a wrong order has surfaced in absence of a
jurisdictional error and in this regard, the decision of the
Apex Court in Southern Sales and Services & others Vrs.
Sauermilch Design and Handels GMBH (2008) 14 SCC
457 may have a reference.
10. Considering the evidence in its entirety, the irresistible
conclusion of the Court is that no error has been committed
by the learned courts below in reaching at a conclusion that
the petitioner had a liability to discharge and in that
connection, cheque was issued to the opposite party, who,
thereafter, presented it before the Bank, but could not be
honoured for an amount of Rs.10,00,000/- received towards
a friendly loan and was not refunded despite a legal notice,
an offence under Section 138 of the Act is deemed to have
been committed by him and therefore, rightly, it was
followed by the order of conviction and sentence. The
Court, in absence of any perversity in the findings of the
courts below and being alive to the position of law that the
scope of revision is narrow and limited, finds no reason to
disturb the order of conviction and the sentence.
11. Accordingly, it is ordered.
12. In the result, the revision stands dismissed.
(R.K. Pattanaik)
Judge
Manoj
