Orissa High Court
Prafulla Mishra vs Laba Mallick on 30 June, 2025
Author: Chittaranjan Dash
Bench: Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No. 3464 of 2017
Prafulla Mishra .... Appellant
Mr.
r. Suryakanta Dwibedi
Advocate
-versus-
Laba Mallick .... Respondent
Mr. Abhilash Mishra
Advocate
CORAM:
THE HON'BLE
BLE MR. JUSTICE CHITTARANJAN DASH
Date of Judgment: 30.06.2025
Chittaranjan Dash, J.
1. By means of this application, the Petitioner seeks
indulgence of this Court, for quashing/setting aside the order dated
03.08.2017 passed by the learned S.D.J.M., Sonepur in ICC Case
No.2 of 2017 under Annexure-1.
Annexure
2. The background facts of the case are that the Petitioner,
Smt. Prafulla Mishra, was arrayed as one of the co-accused
co in
I.C.C. Case No. 2 of 2017 pending before the learned S.D.J.M.,
Sonepur, for alleged commission of an offence punishable under
Section 138 of the Negotiable Instruments Act, 1881. The
complainant,
nt, Laba Mallick (Opposite Party No. 2), alleged that
accused no.1, son of the Petitioner,, purchased a piece of land for a
CRLMC No. 3464 of 2017 Page 1 of 7
consideration of ₹15,40,000/- in the name of accused No. 2 (the
Petitioner).
). Of the total amount, ₹6,40,000/- was paid in cash, and
the remaining ₹9,00,000/-
₹9,00,000/ was paid by two post-dated
dated cheques
drawn on the account of accused No. 1. However, upon
presentation to the bank, both cheques were dishonoured due to
insufficient funds, which was communicated to the complainant on
04.01.2017. Despite
pite receiving a legal demand notice on 28.01.2017
asking them to pay the dishonoured amounts within the statutory
period, the accused failed to do so. Consequently, the complainant
instituted the present proceedings before the learned S.D.J.M.,
Sonepur, who
ho took cognizance of the offence under Section 138 of
the N.I. Act against the Petitioner as well. Being aggrieved by the
order of cognizance, the Petitioner has approached this Court by
filing the present CRLMC under Section 482 of the Cr.P.C. for
quashing
ng of the entire criminal proceedings on the ground that she
is neither the drawer nor signatory of the dishonoured cheques and
cannot be held vicariously liable under the law.
3. Mr. Dwibedi, appearing on behalf of the Petitioner submits
that she is only the mother of the co-accused
accused and was not a party to
the underlying transaction nor to the dishonoured instruments. The
record demonstrates that the post-dated
post dated cheques were drawn and
issued by accused No. 1, and the Petitioner neither signed the
cheques nor maintained
intained the account upon which they were drawn.
Mr. Dwibedi asserts that the Petitioner cannot be fastened with
criminal liability under Section 138 of the Negotiable Instruments
Act, 1881, which requires that the person who “draws” the cheque
is liable upon
pon its dishonour. He further states that vicarious liability
CRLMC No. 3464 of 2017 Page 2 of 7
under the N.I. Act is statutorily attracted only in cases involving
companies or juridical persons, not in situations like the present one
where the Petitioner is merely a family member. Mere registration
re
of the property in her name cannot imply criminal intent or liability
under the N.I. Act. Mr. Dwibedi submits that the complaint and the
cognizance order lack any specific allegations against the
Petitioner,, and the Magistrate took cognizance mechanically,
me
without appreciating the absence of the Petitioner’s
‘s role as a drawer
or signatory. The learned counsel presses that allowing the
proceedings to continue against the Petitioner would cause undue
harassment and defeat the ends of justice and prays
prays to quash the
order of cognizance dated 03.08.2017 and all proceedings against
the Petitioner.
4. Mr. Mishra, learned counsel for the Opposite Party, argues
that the criminal proceedings initiated under Section 138 N.I. Act
are fully justified as the Petitioner was the named purchaser and
direct beneficiary of the transaction; thus, her role cannot be
overlooked. He further argues that the dishonoured cheques were
issued to satisfy the balance sale consideration for a property
registered in her name, making her an active participant in the
transaction. Mr. Mishra contends that the plea that she is not a
signatory cannot absolve her as she is vicariously liable.
liable Whether
she was involved in the transaction and liable along with accused
No. 1 is a factual issue to be decided at trial. Mr. Mishra further
places that the learned Magistrate rightly took cognizance after
considering the material placed on record, and there is no abuse of
process justifying quashment, and this petition is hence liable to be
CRLMC No. 3464 of 2017 Page 3 of 7
dismissed to allow the trial to proceed in accordance with law. Mr.
Mishra relied on relied on the decision in the matters of S.P. Mani
and Mohan Dairy Vs. Snehalatha Elangovan, reported in
MANU/SC/1189/2022 State of Haryana and Others Vs. Ch.
MANU/SC/1189/2022,
Bhajan Lal and others reported in AIR 1992 SC 604, and Laxmi
Dyechem -Vrs.- State of Gujurat and others reported in 2013 (13)
SCC 375.
5. For ready reference and better appreciation of the legal
position, the relevant provision
provision of Section 138 of the Negotiable
Instruments Act, 1881, is extracted hereinbelow:
hereinbelow
138. Dishonour of cheque for insufficiency, etc., of
funds in the account.–Where
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
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
provision 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–
unless
(a) the cheque has been presented
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;
CRLMC No. 3464 of 2017 Page 4 of 7
(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
the said amount of money by giving a
notice; in writing, to the drawer of the cheque, 5
[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.
Explanation.–For
Explanation. For the purposes of this section, “debt
of other liability” means a legally
legally enforceable debt or
other liability.
6. Considering the aforesaid provision, it is evident that
liability under Section 138 N.I. Act rests solely upon the person
who has drawn the cheque on an account maintained by him. In the
present case, there is no material on record to connect the petitioner
petitione
with the dishonoured cheques, as it is undisputed that they were
drawn and signed by her son, Ramakanta Mishra, from his own
account. The statutory scheme underscores that only the drawer of
the cheque can be held liable for its dishonour. The petitioner is
neither a signatory to the instruments nor a partner in any business
nor in any manner associated with the account or transaction in
question. Thus, there exists no legal basis to invoke criminal
liability under Section 138 of the N.I. Act against the petitioner, and
the continuation of proceedings against her is unsustainable in law.
7. The dishonoured cheques in question, bearing cheque Nos.
000021 dated 13.10.2016 for ₹5,00,000/- and 000022 dated
13.10.2016 for ₹4,00,000/-,, were both drawn on HDFC Bank,
CRLMC No. 3464 of 2017 Page 5 of 7
Sonepur Branch, by accused No. 1, Ramakanta Mishra, from his
account bearing No. 50100002272557. The petitioner herein, , is
the mother of the drawer and was merely the registered owner of
the purchased property. The transaction was conducted entirely by
her son and all liabilities arising from the dishonour of the cheques
lie upon him as the drawer.
8. The record also indicates that the petitioner was neither the
signatory nor the account-holder
account holder of the dishonoured cheques, and
the property was purchased in her
her name at the behest of accused
No. 1. No material has been produced to show any active role of the
petitioner in the financial transaction, and as such, liability cannot
be fastened upon her under Section 138 of the Negotiable
Instruments Act, 1881, especially
especially when the cognizance taken is not
under any provision of the IPC.
9. The decisions referred by the learned counsel for the
Opposite Parties are factually distinguishable and do not apply to
the present case. In S.P. Mani and Mohan Dairy vs. Snehalatha
Elangovan,, the matter involved a partnership firm, which is not the
factual situation here. Similarly, the decision in State of Haryana
and Others vs. Ch. Bhajan Lal and Others lays down broad
guidelines for the exercise of jurisdiction under Section 482 Cr.P.C.
C
While those principles are well-settled
well settled and undisputed, they have no
bearing on the present controversy, given the distinct factual matrix.
Further, the decision in Laxmi Dyechem v. State of Gujarat and
Others, pertains to a case where the dishonour arose due to the
drawer’s signature not matching the specimen held by the bank, a
situation entirely different from the present matter.
CRLMC No. 3464 of 2017 Page 6 of 7
10. Consequently, the facts enumerated in the cited decisions
have no relevance to the present set of circumstances. In view
vi of the
above, none of the judgments relied upon by the Opposite Parties is
applicable to the facts of the present case and therefore cannot
advance their case. On the contrary, the cognizance taken against
the petitioner, being neither in conformity with
with law nor supported
by the facts on record, deserves to be quashed.
11. Accordingly, the order dated 03.08.2017 is set aside.
12. The learned trial court is directed to proceed with the case
against the remaining accused as expeditiously as possible, keeping
in view
iew that the matter pertains to the year 2017.
(Chittaranjan Dash)
Judge
Bijay
Signature Not Verified
Digitally Signed
Signed by: BIJAY KETAN SAHOO
Reason: Authentication
Location: HIGH COURT OF ORISSA
Date: 01-Jul-2025 15:17:46
CRLMC No. 3464 of 2017 Page 7 of 7