The court upheld that issues of legal liability in cheque dishonour cases must be resolved at trial rather than dismissing them pre-trial, affirming the inherent powers shouldn't interfere absent compelling reasons.

JUDGMENT :

B.P. ROUTRAY, J.

1. By way of this petition under Section 482 of the Code of Criminal Procedure, petitioner has assailed the order dated 02.11.2006 passed by the learned S.D.J.M., Angul, taking cognizance against him for commission of offence under Section 138 of the Negotiable Instruments Act (hereinafter in short called “the N.I.Act”), in C.T. Case No. 1973 of 2006.

2. The facts giving rise to this petition in nutshell are that, the present petitioner is the accused in the aforesaid CT Case No. 1973 of 2006 for commission of offence U/s. 138 of the N.I.Act. The complainant therein, namely, Sri Prakash Mandothia (present Opposite Party), alleged that on 18.09.2006 the accused-petitioner issued a cheque in his favour in due discharge of his liability of Rs. 1.00 lakh against him, which upon presentation before the Bank was returned/dishonoured on the ground of insufficient fund in the account of the accused and accordingly, after issuance of notice as required under the law, the said complaint case was filed against the petitioner for commission of the aforesaid offence.

3. What is contended on behalf of the present petitioner is that, the cheque in question was lost by him for which he lodged a written missing information before the Angul P.S. vide Station Diary Entry (SDE) No. 439 dated 18.9.2006. In this regard, the present petitioner also filed a complaint case, i.e. CT No. 1925/2006 before the learned SDJM, Angul and the same has been sent by the learned SDJM to the OIC, Angul P.S. under Section 156 (3) of the Cr.P.C. for registration and investigation. However, it is submitted that the Police has not taken any action till date on the same. It is also submitted on behalf of the petitioner that the present petitioner had no legal liability to be discharged against the opposite party-complainant to constitute the offence under Section 138 of the N.I.Act.

4. On the other hand, it is submitted on behalf of the opposite party-complainant that the complainant had certain legally enforceable debt against the present petitioner for which the petitioner had given the said cheque, with his signature and filling the cheque of his own, to the opposite party-complainant, but when the cheque was dishonoured, with an oblique motive and to save him from commission of offence under Section 138 of the N.I. Act, petitioner filed the vague missing complaint of his cheque before the Police as well as C.T. No. 1925 of 2006. Again, when the learned S.D.J.M. took cognizance against the present petitioner for commission of offence U/s. 138 of NI Act., to frustrate the said case, he has filed this present case to quash the impugned order of cognizance.

5. Upon perusal of the Complaint Petition under Annexure-1 and the alleged information lodged by the petitioner before the police vide SD entry No. 439 dated 18.9.2006 under Annexure-3, it is seen that the date of issuance of cheque and the date of lodging of the missing complaint of the said document vide SD Entry No. 439 are the same. The contents of Annexure-3 show that the said cheque was lost 3/4 days prior to 18.09.2006. The stop payment request had also been made under Annexure-4 to the Bank on the same date i.e., on 18.9.2006. Thus a simple doubt arises that if a Cheque containing the amount of Rs.1.00 lakh with signature of the petitioner was lost, why he lodged the complaint before the Police as well as intimated the Bank to stop payment after 3 / 4 days? That too the date of issuance of cheque is the same date of lodging the complaint before police, and admittedly, the petitioner is not disputing his signature and his writing of the amount mentioned in the cheque. On the other hand, in due c