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IN THE HIGH COURT OF ORISSA AT CUTTACK
SIBO SANKAR MISHRA
Anupama Biswal – Appellant
Versus
State Of Odisha – Respondent
| Table of Content |
|---|
| 1. basis of the complaint and petitioner’s actions. (Para 1 , 2 , 3) |
| 2. arguments regarding illegality of the debt. (Para 5 , 6) |
| 3. counterarguments for maintaining complaint. (Para 7 , 9) |
| 4. trial necessity and legal presumption. (Para 10 , 12) |
| 5. judicial reasoning for quashing the complaint. (Para 14 , 15 , 17 , 18) |
| 6. application of principles from prior judgments. (Para 19 , 20 , 21) |
| 7. final order quashing the proceeding. (Para 22) |
JUDGMENT :
S.S. Mishra, J.
The petitioner has invoked the inherent jurisdiction of this Court under Section 482 Cr.P.C. seeking quashing of the criminal complaint being ICC Case No.208 of 2021 initiated by the opposite party No.2 for the alleged commission of the offence punishable under Section 138 of the N.I. Act.
2. The brief fact in the complaint is that the opposite party No.2, being the complainant has alleged that, on the basis of the assurance given by the son of the present petitioner to arrange admission of her son in a Government Medical College, she had given cash to the son of the petitioner. The son of the petitioner could not arrange the seat in the Government Medical College for the son of the complainant, as promised by him
A cheque issued to discharge an immoral debt does not constitute a legally enforceable debt under Section 138 of the N.I. Act, making the complaint non-maintainable.
Point of Law : Inherent jurisdiction under Section 482 Cr.P.C. though wide, has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specificall....
A person who is not a signatory to the cheque cannot be prosecuted under Section 138 of the Negotiable Instruments Act, 1881, for the offence of dishonour of cheque for insufficiency of funds.
A legally enforceable debt must exist at the time of cheque presentation for liability under Section 138 of the N.I. Act to arise.
Even a blank cheque leaf, voluntarily signed and handed over by accused, which is towards some payment, would attract presumption under Section 139 of Negotiable Instruments Act.
Cheques issued as security can still be subject to Section 138 if a legally enforceable debt exists at the time of issuance.
The court emphasized that the determination of whether a cheque was issued for a legally enforceable debt or as security is a factual issue for trial.
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