JUDGMENT

Dr. B.R. Sarangi, J. The opposite party being the complainant filed a complaint case bearing I.C.C. Case No. 215 of 1999 before the court of the learned S.D.J.M., Bhubaneswar under Section 138 of the N.I. Act in which the learned Magistrate took cognizance by order dated 25.7.2000, which is sought to be challenged in the present application.

2. The fact as revealed from the complaint petition is that on 10.12.1998, the petitioner issued a cheque for Rs. 30,000/- in favour of the opposite party bearing cheque No. 749465 dated 10.12.1998 drawn on State Bank of India, C&I Division, Bhubaneswar, Main Branch towards payment of his personal debt. It is stated that the said amount had been borrowed by the petitioner from the opposite party on 13.08.1997 by executing a promissory note for the said value. After obtaining the said cheque, the opposite party deposited the same in Urban Cooperative Bank Ltd., Bhubaneswar and the Bank forwarded the said cheque for clearance, which was returned for non-clearance “due to insufficient fund”. On 31.3.1999, the complainant-opposite party through his Advocate intimated the fact of non-clearance/non-encashment of the cheque to the petitioner by registered post with A.D. demanding for immediate payment within a period of fifteen days. It is further alleged that in spite of such notice the petitioner failed to pay the said amount within the stipulated period for which the opposite party-complainant filed the complaint petition vide Annexure-1.

3. This Court while entertaining this application, issued notice on 3.4.2003 through registered post with A.D. and after valid service of notice, the A.D. has been received back. But none appeared for the opposite party.

4. Mr. A. Das, learned counsel appearing for the petitioner states that the petitioner is no way connected with the alleged transaction and as such the initiation of the complaint case before the court below is to harass the petitioner. After initiation of the complaint case, the complainant was examined under Section 200 Cr.P.C. and thereafter the learned S.D.J.M. took cognizance under section 138 of the N.I. Act against the petitioner and issued notice for his appearance. He further submits that during the proceeding the opposite party-complainant filed the advocate notice which was sent to the petitioner as stated in the complaint petition. In the said notice it was stated “you on or about 8.9.1998 issued cheque bearing No.749422 dated 08.9.1998, drawn on State Bank of India, C&I, Bhubaneswar Main Branch in favour of my client Mr. Tapan Kumar Padhi towards liquidation of loan availed by you from my client”, whereas in the complaint petition in paragraph-8(1), it is stated as follows :-

“that on 10.12.1998 at Bhubaneswar the accused issued a cheque favouring complainant amount to Rs.30,000/- only bearing cheque No.749465 dated 10.12.1998 drawn on State Bank of India, C&I, Bhubaneswar Main Branch towards repayment of his personal debt ………”

5. On perusal of the above mentioned statements, it is found that two contradictory stands have been taken, namely, in both the statements the cheque numbers and dates are different. Therefore, it appears that the complainant is not sure of the cheque issued in his favour and its number and dates, thereby an attempt was being made to cause harassment to the petitioner by filing such frivolous complaint case.

6. Mr. A. Das, learned counsel for the petitioner relying on the judgments of the Hon’ble apex Court in the case of DCM FINANCIAL SERVICES LIMITED v. J.N. SAREEN AND ANOTHER, (2008) 8 SCC 1 and JUGESH SEHGAL v. SHAMSHER SINGH GOGI, 2009 (II) OLR (SC) 309, (2009) 14 SCC 683 submits that while taking cognizance the learned S.D.J.M., Bhubaneswar should have at least followed the section as enunciated under the N.I. Act i.e. under Sections 138 and 142 and without application of any mind, the order taking cognizance under Section 138 of the N.I. Act is bad in law. He also relies upon the judgments i