Advocates:
['M/S A PATTANAIK', 'M/S A JENA', '', 'D P JENA', 'J SATPATHY']

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IN THE HIGH COURT OF ORISSA AT CUTTACK

CRLMC No.1157 of 2011

Sri Gadadhar Barik

&.

Petitioner

Mr. A. Pattanaik, Advocate

-Versus-

Sri Pradeep Kumar Jena and another

&.

Opposite Parties

Mr. D.R. Parida, ASC

CORAM:

JUSTICE R.K.PATTANAIK

DATE OF JUDGMENT : 07.04.2022

R.K. Pattanaik, J

1.

The petitioner has approached this Court by invoking

jurisdiction under Section 482 Cr.P.C. assailing legality and judicial

propriety of order of cognizance dated 2^nd February 2011

(Annexure-3) passed in I.C.C. No.427 of 2010 by the learned

S.D.J.M., Khurda on the grounds inter alia that it is not sustainable

in law and therefore, liable to be quashed.

2.

The petitioner pleaded that unless the impugned order

under Annexure-3 is quashed, there would be miscarriage of justice

and hence, inherent jurisdiction of this Court under Section 482

Cr.P.C. should be exercised. The petitioner happens to be the

accused in a complaint case pending before the court below for an

offence punishable under Section 138 of the Negotiable Instruments

Act, 1881 (here-in-after referred to as 8the NI Act9) which has been

filed by OP No.1 alleging therein that the former had taken a hand

loan of Rs.40,000/- to meet his personal needs and when it could

be paid back, on 15^th May, 2010, some henchmen of OP No.1

forcibly entered inside his residence and managed to obtain a

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cheque for an amount of Rs.40,000/- drawn in the UCO Bank,

Khurda Branch, Khurda and thereafter, presented it before the bank

for encashment but it could not be honoured for insufficient funds

in the account and again after five months, it was again submitted

and yet dishonoured with a similar endorsement dated 18^th

October, 2010.

3.

According to the petitioner, on account of dishonour of

cheque due to insufficiency of funds in the account, the learned

court below could not have taken cognizance of the offence under

Section 138 of the N.I. Act after it was presented for encashment

once again after about five months which is not permitted under

law. In fact, the only point which has been raised by the learned

counsel for the petitioner is about the maintainability of the

complaint for a cause of action dated 18^th October, 2010 when the

cheque could not be honoured for insufficient funds on an earlier

occasion.

4.

Learned Standing Counsel for OP No.2, however, submits

that there is no wrong or illegality in the impugned order under

Annexure-3 because OP No.1 could have presented cheques for

more than once and in that regard, no prohibition lies. No steps so

far been taken for service of notice vis-à-vis OP No.1 and hence, he

is not before this Court to defend.

5.

When a cheque is presented for encashment and stands

dishonoured, the payee is required to issue a notice to the drawer

demanding payment of the amount and in case, such request is not

obliged, complaint under Section 138 of the N.I. Act is filed for the

drawer having committed the offence. The question is, whether on

the basis of a statutory notice issued by OP No.1 subsequent to

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dishonour of cheque about five months before, the learned court

below could have entertained the complaint and taken cognizance

of offence under Section 138 of the N.I. Act as against the

petitioner?

6.

More or less a similar question was before the Supreme

Court in M/s. Sicagen India Ltd. Vrs. Mahindra Vadideni and

Others (Criminal Appeal Nos.26-27 of 2019) decided on 8^th

January, 2019, wherein, it has been held that even a second

statutory notice after re-representation of cheque is maintainable in

law. In fact, the issue before the Supreme Court was, whether, a

criminal complaint ba