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Orissa High Court
An Application Under Section 482 Of The … vs Minaketan Mohapatra …. Opp. Party on 31 July, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No. 2900 of 2024
An application under Section 482 of the Code of Criminal Procedure,
1973.
Jyoti Ranjan Kar .... Petitioner
-versus-
Minaketan Mohapatra .... Opp. Party
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For Petitioner : Mr. S. P. Dash, Advocate
For Opp. Party : Mr. G. P. Jena, Advocate
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CORAM:
HON'BLE MISS JUSTICE SAVITRI RATHO
JUDGMENT
31.07.2025
Savitri Ratho, J. This CRLMC has been filed to set aside the criminal
proceeding as well as the order dated 15.05.2024 passed in 1CC Case
No. 51 of 2024 by the learned Judicial Magistrate First Class (in short
“JMFC”) Soro taking cognizance of the offence under Section 138 of the
Negotiable Instruments Act (in short “the NI. Act“) against the accused –
petitioner.
CRLMC No. 2900 of 2024
Page 1 of 12
CASE OF THE COMPLAINANT
2. The complainant is a service holder. he complainant- opposite
party and the accused – petitioner-‟s family are known to each other.
The accused borrowed money from the complainant on different
occasions .When the complainant asked for return of the money , on
16.02.2024 , the accused issued a cheque bearing No.-069326 for Rs
17,00,000/- . The complainant presented the cheque for collection in
State Bank of India, Soro but the cheque was bounced and was returned
unpaid with an endorsement „funds insufficient‟, vide cheque return
memo dated 21.02.2024. Thereafter on dated 09.03.2024 the
complainant sent a legal notice to the accused . He received the above
demand notice but did not pay the amount . So the complainant filed the
complaint – I.C.C No. 51 of 2024 in the Court of the J.M.F.C, Soro. On
receipt of the complaint petition and other relevant documents produced
by the complainant, the learned J.M.F.C, Soro on 15.05.2024 took
cognizance of the offence under Section 138 of the N.I Act and issued
process to the petitioner for his appearance.
IMPUGNED ORDER
3. On 15.05.2024, after the complainant filed the original
documents ; after perusal of the complaint , the affidavit of the
CRLMC No. 2900 of 2024
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complainant under Section 145 of the NI Act and other documents , the
learned JMFC , Soro found sufficient material to proceed against the
petitioner under Section 138 of the N.I. Act , took cognizance of the
offence and issued summons to him .
SUBMISSION
4. I have heard Mr. S.P. Dash, learned counsel for the petitioner
and Mr. G.P. Jena, learned counsel for the Opposite Party.
5. Mr. Dash, learned counsel for the petitioner submitted that the
petitioner does not know the complainant though the complainant claims
they are friends and there is no legal debt existing to attract the offence
under Section 13 of the NI Act . He has submitted that on 22.09.2023 ,
when the petitioner had been to Bank of India Tungabhadra Branch to
withdraw some money , two cheques including the cheque in question in
this case got stolen . So he informed the Bank to stop payment and
reported the matter to the IIC Soro Police Station and police made a
Station Diary Entry . When he received the Advocate‟s notice of the
complainant , he had replied informing him his two cheques had got
stolen for which he had informed the police who had made station diary
entry . But after receiving the reply , instead of returning the cheque to
the petitioner, the complainant filed FIR against him , leading to
CRLMC No. 2900 of 2024
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registration of Soro P.S. Case 224 of 2024 , punishable under Sections
420, 422, 468 I.P.C and also filed this complaint making false
allegations. But the allegations in the FIR and the complaint case are
completely different. He has further submitted that the complainant has
not mentioned in the complaint petition or brought to the notice of the
learned Magistrate about lodging of FIR against the petitioner . In view
of the contents of the written FIR of the complainant in Soro P.S Case
224 of 2024 , no legal liability which is one the requirements to
constitute the offence under Section 138 NI Act , is available against the
petitioner , for which , the impugned order taking cognizance is liable
to be quashed. He has submitted that as investigation in Soro P.S. Case
No. 224 of 2024 was going on, in view of the provisions of Section 210
of the Cr.P.C., the learned Magistrate should have stayed the
proceedings / in the complaint case and called for a report from the
police or the records of that case , before issuing summons to the
petitioner .
6. Mr Dash , learned counsel further submitted in a catena of
decision this Hon’ble court as well the Apex court have held that if on a
bare reading of the complaint petition, no offence is disclosed or the
allegations are frivolous or vexatious, the proceeding should be quashed.
CRLMC No. 2900 of 2024
Page 4 of 12
7. Apart from the impugned order dated 15.05.2024 and the
complaint petition (Annexure 1) , the petitioner has annexed copy of the
FIR in Soro P.S. Case No 224 of 2024 ( Annexure 2 ) ; copy of the
intimation to the Police on basis of which SDE was made , statutory
notice and reply to the notice as ANNEXURE 3 Series .
8. Mr. G.P. Jena, learned counsel for the Opp. Party opposed the
submissions of the learned counsel for the petitioner , stating that Soro
P.S Case No 224 of 2024 relates to different offences for which the
provision of Section 210 of the Cr.P.C. is not attracted. He further
submitted that the contentions of the petitioner that the allegations are
frivolous or that the offence under Section 138 NI Act is not made out is
a defence plea to be urged during trial .
STATUTORY PROVISIONS
9. For deciding this application, the provisions of Section-210 of the
Cr.P.C. , Section 223 of the Bharatiya Nagarik Suraksha Sanhita , 2023
( in short “the BNSS”) and Section 138 of the NI Act are relevant , for
which the provisions are extracted below:-
CRLMC No. 2900 of 2024
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“Section 210- Procedure to be followed when there is
a complaint case and police investigation in respect of
the same offence.
(1) When in a case instituted otherwise than on a police
report (hereinafter referred to as a complaint case), it
is made to appear to the Magistrate, during the course
of the inquiry or trial held by him, that an investigation
by the police is in progress in relation to the offence
which is the subject-matter of the inquiry or trial held
by him, the Magistrate shall stay the proceedings of
such enquiry or trial and call for a report on the matter
from the police officer conducting the investigation.
(2) If a report is made by the investigating police
officer under section 173 and on such report
cognizance of any offence is taken by the Magistrate
against any person who is an accused in the complaint
case, the Magistrate shall inquire into or try together
the complaint case and the case arising out of the
police report as if both the cases were instituted on a
police report.
(3) If the police report does not relate to any accused in
the complaint case or if the Magistrate does not take
cognizance of any offence on the police report, he shall
proceed with the inquiry or trial, which was stayed by
him, in accordance with the provisions of this Code.”
CRLMC No. 2900 of 2024
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“Section 223. Examination of complainant.
(1) A Magistrate having jurisdiction while taking
cognizance of an offence on complaint shall examine
upon oath the complainant and the witnesses present, if
any, and the substance of such examination shall be
reduced to writing and shall be signed by the
complainant and the witnesses, and also by the
Magistrate:
Provided that no cognizance of an offence shall
be taken by the Magistrate without giving the accused
an opportunity of being heard:
Provided further that when the complaint is made
in writing, the Magistrate need not examine the
complainant and the witnesses-(a) if a public servant
acting or purporting to act in the discharge of his
official duties or a Court has made the complaint; or(b)
if the Magistrate makes over the case for inquiry or
trial to another Magistrate under section 212:
Provided also that if the Magistrate makes over
the case to another Magistrate under section 212 after
examining the complainant and the witnesses, the latter
Magistrate need not re-examine them.
(2) A Magistrate shall not take cognizance on a
complaint against a public servant for any offence
alleged to have been committed in course of theCRLMC No. 2900 of 2024
Page 7 of 12
discharge of his official functions or duties unless-(a)
such public servant is given an opportunity to make
assertions as to the situation that led to the incident so
alleged; and
(b) a report containing facts and circumstances of the
incident from the officer superior to such public servant
is received.”
“Section 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 provisions 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:
Provided that nothing contained in this section shall
apply unless-
CRLMC No. 2900 of 2024
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(a) the cheque has been presented to the bank within a
period of six months from the date on which it is drawn
or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque,
as the case may be, makes a demand for the payment of
the said amount of money by giving a notice in writing,
to the drawer of the cheque, [within thirty days] of the
receipt of information by him from the bank regarding
the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment
of the said amount of money to the payee or, as the case
may be, to the holder in due course of the cheque,
within fifteen days of the receipt of the said notice.”
ANALYSIS AND CONCLUSION
10. A perusal of the written FIR in Soro P.S case No 224 of 2024
(Annexure 2) reveals that the complainant had stated that the petitioner
had taken Rs 17,00,000/- from the complainant for investing in the share
market and to convince him to give him the money , had given him a
post dated cheque for Rs 17,00,000/- . When the complainant did not get
any returns from the share market , he presented the cheque for payment
and it bounced .When he sent the statutory notice to the accused he got a
Station Diary Entry registered and refused to make payment . On basis of
CRLMC No. 2900 of 2024
Page 9 of 12
this FIR , the case has been registered under Section-420,422 and 468
IPC against the petitioner .
11. It is true that in his reply to the statutory notice of the
complainant, the petitioner had stated that after he lost the cheques (
including Cheque No. 069326 ) he had informed the police about two
cheques being lost and a Station Diary Entry had been made on the basis
of such information , but the information to the police and SDE has to be
proved by leading evidence .
12. Copy of an affidavit of the petitioner has been filed with this
CRLMC (part of Annexure 3 Series ) relating to loss of the two cheques
, but whether this affidavit was handed over the Bank asking / for it to
stop payment , may also be required to be proved if the petitioner relies
on such plea .
13. If it is true that the petitioner had taken some money from the
complainant for investing in the share market and had issued the post
dated cheque as an assurance / guarantee , but the amount invested did
not produce the promised returns , it may not be a legal liability under
Section 138 of the NI Act . But this has to be proved by the petitioner by
leading evidence which may include the FIR of the complainant .
CRLMC No. 2900 of 2024
Page 10 of 12
14. Had the complaint been filed after coming into force of the
Bharatiya Nagarik Suraksha Sanhita , 2023 ( in short “BNSS”) , which
has replaced the Code of Criminal Procedure , 1973 ( in short “Cr.P.C“)
, as per the first proviso to Section 223(1) of the BNSS , the Magistrate
after examining the affidavit and documents filed by the complainant ,
would have given the petitioner an opportunity of hearing , before
taking cognizance of the offence .
15. I am of the opinion that in exercise of power under Section
482 of the Cr.P.C , I cannot quash the order of cognizance, by relying on
the FIR of the complainant in Soro P.S Case No. 224 of 2024 , or the
Station Diary Entry or Affidavit of the petitioner which has been
produced in this Court . The petitioner will have to produce all these
materials before the learned Magistrate at the appropriate stage .
16. As the registration or pendency of investigation in Soro P.S Case
No. 224 of 2024, was not brought to the notice of the learned Magistrate
by the complainant , the question of exercise of power under Section 210
of the Cr.P.C by the learned Magistrate does not arise .So the impugned
order is not liable for interference on that score.
CRLMC No. 2900 of 2024
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17. However , as it appears that the same cheque is involved in both
the cases , if trial in the two cases is required to be held , it would be in
the interest of justice if both the cases are tried by the same Officer /
Court . Therefore if chargesheet is filed in Soro P.S. Case No 224 of
2024 , it is open to the petitioner to file an application before the
appropriate forum for hearing of the two cases by the same Magistrate ,
18. In view of the discussion above, I am not inclined to interfere
with the impugned order of cognizance, for which the CRLMC is
dismissed, but with the aforesaid observations.
19. Copy of this judgment be communicated to the learned JMFC,
Soro forthwith.
…………………..
(Savitri Ratho)
Judge
Orissa High Court, Cuttack
Dated 31st July, 2025 / Subhalaxmi
Signature Not Verified
Digitally Signed
Signed by: SUBHALAXMI PRIYADARSHANI
SAHOO
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 03-Aug-2025 14:41:45
CRLMC No. 2900 of 2024
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