A cheque issued as security raises presumption of debt under Section 138 of the NI Act, which can be rebutted by proving no liability exists; concurrent civil proceedings do not preclude criminal actions.

JUDGMENT :

R.K. PATTANAIK, J.

1. Instant revision filed under Section 401 read with Section 397 Cr.P.C. is at the behest of the petitioner assailing the impugned judgment dated 2^nd May, 2022 as at Annexure-2 passed in connection 1CC Case No.1190 of 2015 (T.R. No.137 of 2019) confirmed in Criminal Appeal No.19 of 2022 by judgment dated 4^th November, 2023 i.e. Annexure-2 passed by the learned 3^rd Additional Sessions Judge, Bhubaneswar for having convicted him for an offence punishable under Section 138 of the NI Act followed by a sentence and to pay compensation of Rs.30 lac in terms of Section 357 (3) Cr.P.C. with a default sentence on the grounds inter alia that the order of conviction cannot be sustained in law and hence, liable to be interfered with and set aside in the interest of justice.

2. The opposite party filed the complaint in 1CC Case No.1190 of 2015 alleging therein that the petitioner though a power of attorney holder managed to sell away his property and in that connection, when it was protested, as such authorization was only to look after the property and not for any other purposes and for having received the consideration money of Rs.40 lac issued a cheque of Rs.20 lac dated 24^th February, 2015, it could not be encashed and returned back dishonoured with an intimation and endorsement that the account has insufficient fund received on 3^rd March, 2015 and thereafter, despite notice to the latter to pay back the cheque amount within fifteen days, the same was not responded.

3. A copy of the complaint is at Annexure-1. On the basis of such complaint, the opposite party alleged that the petitioner should be criminally prosecuted for dishonour of cheque in failing to discharge the liability arising out of the alleged transaction. Considering the evidence received only from the side of the opposite party, the learned J.M.F.C., Bhubaneswar reached at a conclusion that the case under Section 138 of the NI Act is established and sentenced the petitioner thereunder and also directed him to pay compensation. The petitioner being aggrieved of filed the appeal before the learned court below, but was dismissed vide Annexure-2 confirming the order of conviction and sentence awarded against him. Such confirmation of conviction order is presently under challenge by the petitioner on the premise that there has been no any debt or liability for him to discharge and that apart, a civil suit is pending before the court of learned Civil Judge (Senior Division), Bhubaneswar in respect of the property involved, wherein, the opposite party is seeking a declaration to the effect that the Power of Attorney dated 17^th January, 2014 to create a 3^rd party interest without passing any consideration to be bad in law and to grant permanent injunction against the petitioner and purchaser, namely, defendant No.2 and their agents from interfering in its peaceful possession over the same with such other reliefs sought for and in that view of the matter, any such conviction and sentence under of the NI Act could not have been directed by the learned courts below, hence, the same is liable to be quashed.

4. Heard Mr. Mohanty, learned counsel for the petitioner and Mr. Bose, learned counsel for the opposite party.

5. Perused the LCR.

6. According to Mr. Mohanty, learned counsel for the petitioner, the order of conviction and sentence is not legally tenable in absence of any liability from being discharged with and that apart, the alleged cheque was issued for the purpose of security but it was misutilized by the opposite party. It is also submitted that the opposit