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2019 Supreme(Ori) 434
IN THE HIGH COURT OF ORISSA, CUTTACK
A.K. Mishra, J.
Subhranshu Sekhar Padhi - Appellant
Versus
Gouri Prasad Sahu - Respondent
Criminal Miscellaneous Case No. 458 of 2018
Decided On : 18-12-2019
Gopal Kr Mohanty, Advocate, P.K. Panda, Advocate, D. Mishra, Advocate, S.K. Garanayak, Advocate, Sidhartha Mishra, Advocate, R. Mishra, Advocate, D. Sahoo, Advocate, A. Mishra, Advocate
Cases Referred
Mojj Engineering Systems Limited and Ors. Vs. A.B. Sugars Ltd., (2008) 154 DLT 579
The main legal point established in the judgment is that for an offence under section 138 of the Negotiable Instrument Act, 1881, the cheque must be issued for the discharge of a debt or other liability, and the necessary consideration must arise.
Headnote:
Negotiable Instrument Act - Cheque Issuance - 138 Negotiable Instrument Act, 1881 - Summary: The court quashed the proceeding under section 138 of the Negotiable Instruments Act, 1881, as the cheque was not issued towards any consideration or to clear any debt or liability. The court found that the ingredients of the offence under section 138 were lacking, and therefore, the taking of cognizance for that offence was not sustainable in the eye of the law.
Fact of the Case:
The complainant filed a complaint under section 138 of the Negotiable Instrument Act, 1881, alleging that the accused issued a cheque that was dishonored due to insufficient funds. The accused argued that the complaint did not disclose any offence under section 138 as the cheque was not issued for any debt or liability.
Finding of the Court:
The court found that as there was no deed or agreement for sale executed as required under law, the payment for consideration did not arise. The court concluded that the ingredients of the offence under section 138 were lacking, and therefore, the taking of cognizance for that offence was not sustainable.
Issues: The main issue was whether the cheque issuance constituted an offence under section 138 of the Negotiable Instrument Act, 1881, and whether the complaint disclosed the necessary ingredients of the offence.
Ratio Decidendi: The court held that the cheque was not issued towards any consideration or to clear any debt or liability, and as there was no deed or agreement for sale executed, the requirement of section 138 of the Negotiable Instrument Act, i.e., money paid to discharge any debt or liability, was found absent.
Final Decision: The court allowed the CRLMC and quashed the proceeding under section 138 of the Negotiable Instruments Act, 1881, against the petitioner.
JUDGMENT
A. K. Mishra, J. - This is a proceeding under section 482 Cr.P.C. to quash the cognizance order dated 2.12.2016 in 1CC No.5534 of 2016 pending in the Court of JMFC, Bhubaneswar.
2. Heard learned counsel for the petitioner and the learned counsel for opposite party.
3. The opposite party has filed complaint bearing I.C.C. No.5534 of 2016 on 2.11.2016 against the accused along with others on the following material facts. For ready reference the same is extract below:-
"8.3 That, the complainant is also a business man and was having a piece of land at Jatni, Khurda, he was suffering from acute financial crunch, hence he wanted to sale his land at Jatni, Khurda, Odisha. In this connection, the complainant had a discussion with the accused and after due conversation and verbal finalization in between the complainant and accused person, both have agreed to finalize the deal for a consideration amount of Rs.10,50,000/- (Rupees Ten lakh fifty thousand only). The accused person not having sufficient cash with him, he requested the complainant to pay the consideration amount by way of cheques. On Goodfaith the complainant accepted to receive one cheque amounting Rs.5,00,000/-(Rupees Five lacs only) vide cheque No.1003237 dt. 15.12.2016.
That, the complainant had received one cheque bearing cheque No.1003236 for Rs.5,00,000/- on dt.15.9.2016 drawn in Union Bank of India, Patia Branch, Bhubaneswar issued in favour of complainant. The complainant deposited the said cheque with his Banker, Indusind Bank Ltd, Chandrasekharpur, Bhubaneswar for collection of cheque amount, but the said cheque returned back without clearance being dishonoured on dt.16.09.2016 with remarks "FUNDS INSUFFICIANT".
It is also mentioned in the complaint petition that accused persons made mischief by issuing cheque for which they committed an offence under the provision of Negotiable Instrument Act, 1881.
4. Learned S.D.J.M., Bhubaneswar took cognizance of offence under section 138 Negotiable Instrument Act, 1881 on 2.12.2016 and found sufficient material to proceed against the present petitioner.
5. Learned counsel for the petitioner submits that as the cheque was issued not for any debt or other liability, the complaint does not disclose any offence under section 138 of the Negotiable Instrument Act, 1881. He further states that when no sale transaction has been made, the cheque presented in the bank could not be said to be towards payment of any consideration.
6. Learned counsel for opposite party repelled the above contention, stating that, there was a talk for sale of land and once cheque has been issued onus lies upon the petitioner to rebut the presumption under section 139 of the Negotiable Instrument Act, 1881. He relies upon a decision of Delhi District Court in the case of Kusum Nanda Vs. Rajiv Jindal disposed of on 21.6.2019. At the outset, I am of the opinion that the judgment cited by learned counsel for the opposite party is not a precedent.
7. Provision U/s.138 Negotiable Instrument Act, 1881 reads thus:-
"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 be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both."
8. In the decision reported in Mojj Engineering Systems Limited and Ors. Vs. A.B. Sugars Ltd., (2008) 154 DLT 579 ,
