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2017 DIGILAW 1206 (ORI)

Pradeep Kumar Kar v. State of Odisha

2017-10-27

K.R.MOHAPATRA

body2017
ORDER : K.R. MOHAPATRA, J. This application under Section 482 Cr.P.C. has been filed with a prayer to set aside the order dated 12.05.2005 passed by learned S.D.J.M., Bhubaneswar in I.C.C. Case No. 1559 of 2005 taking cognizance of offence under Section 138 of the Negotiable Instrument Act, 1881 (for short ‘the Act’) against the petitioner. 2. Short matrix of facts necessary for proper adjudication of the case are that the opposite party no. 2, namely, Somya Bhusan Mohanty (the complainant), filed a complaint under Section 138 of the Act contending, inter alia, that pursuant to an agreement executed between the complainant and the accused-petitioner and his wife on 10.01.2005, the complainant advanced a loan of Rs.12,00,000/- to the accused for construction of his building at Baripada. Adhering to the terms of the said agreement, the accused issued an A/c payee cheque bearing no. 512710 dated 26.01.2005 amounting to Rs.12.00 lakh drawn on Canara Bank, Baripada Branch, Baripada towards repayment of loan. The complainant upon receipt of the said cheque deposited the same with his banker, namely, UTI Bank Ltd., Satyanagar Branch, Bhubaneswar on 02.02.2005. But the said cheque was dishonored with a remark of ‘funds insufficient’. Accordingly, the complainant issued a pleader’s notice on 22.03.2005 to the accused to make good the cheque amount. The said notice was received by the accused on 01.04.2005. Even after receipt of the said notice, the accused did not pay the cheque amount within the statutory period of fifteen days. Hence, he filed the complaint under Section 138 of the Act before the court of learned S.D.J.M., Bhubaneswar, which has been registered as I.C.C. Case No. 1599 of 2005. 3. Learned S.D.J.M., Bhubaneswar vide his order dated 12.5.2005 considering the averments made in the complaint petition, initial statement of the complainant recorded under Section 200 Cr.P.C. and the materials available on record took cognizance of offence under Section 138 of the Act against the accused-petitioner and issued summons to him for appearance on 12.8.2005. The petitioner being not satisfied with the order of taking cognizance of offence has filed this application under Section 482 Cr.P.C. for the aforesaid relief. 4. Dr. Dash, learned counsel for the petitioner strenuously argued that on a plain reading of the complaint petition and the materials available on record, no case under Section 138 of the Act has been made out against the petitioner. 4. Dr. Dash, learned counsel for the petitioner strenuously argued that on a plain reading of the complaint petition and the materials available on record, no case under Section 138 of the Act has been made out against the petitioner. The complainant has suppressed the material facts to mislead the trial court. The complainant has come to the Court with unclean hands for which the complaint petition is not maintainable. Elaborating her arguments, she submitted that in reply to the pleader’s notice dated 22.03.2005 issued by the complainant, the accused had sent his reply to the Advocate of the complainant, namely, Shri Bikram Keshari Barik, Advocate. In the said reply, the petitioner-accused had categorically denied to have borrowed money from the complainant for any purpose whatsoever. It has been stated in the said reply that the petitioner inter alia made it clear that he had no proximity in any manner with the complainant. He was staying in his ancestral residential house, which was a joint family property. The so called agreement allegedly executed between the parties was a myth. One of his brother-in-law’s friends was dealing with the complainant and defaulted in payment of loan. Due to nonpayment of some amount by the friend of his brother-in-law, the complainant had detained his brother-in-law and was constantly threatening the petitioner and his relations. Out of fear and apprehending danger to his life, the petitioner had put his signature on a blank cheque and agreement without going through the contents thereof. There was no free consent to it. On being threatened, the petitioner had made a demand draft of Rs.4,50,000/- on 2.2.2005 drawn on Canara Bank, Baripada Branch vide D.D. No.252386 and sent the same to the complainant and had also requested him to return the cheque, which he had issued earlier. Instead of returning the said cheque, the complainant deposited the same in UTI Bank Ltd., Satyanagar Branch, Bhubaneswar on the same day i.e. on 2.2.2005, which was consequently dishonored. After issuance of a demand draft of Rs.4,50,000/-, the petitioner had requested the complainant to proceed against the friend of his brother-in-law for recovery of the rest of the amount. The complainant practicing fraud on the accused-petitioner deposited the cheque which was not at all due to him. She further submitted that all these facts were suppressed before the trial court. The complainant practicing fraud on the accused-petitioner deposited the cheque which was not at all due to him. She further submitted that all these facts were suppressed before the trial court. Had these facts been brought to the notice of learned Magistrate, the impugned order would not have been passed. Hence, she prayed for quashing of the impugned order as well as the proceedings in I.C.C. Case No. 1599 of 2005 pending in the court of learned S.D.J.M., Bhubaneswar. 5. The opposite party no. 2-complainant has not entered appearance in this case. Pursuant to the order dated 06.01.2006, the records of I.C.C. Case No. 1599 of 2005 has been called for from the court of learned S.D.J.M., Bhubaneswar. 6. Having heard learned counsel for the petitioner and on perusal of the records of learned trial court as well as complaint petition, it appears that the accused-petitioner had issued an A/c Payee Cheque bearing No. 512710 dated 26.01.2005 in favour of the complainant drawn on Canara Bank, Baripada Branch. The said cheque was presented by the complainant with his banker, namely, UTI Bank Ltd., Satyanagar Branch, Bhubaneswar on 2.2.2005 and was returned with a remark ‘funds insufficient’. The complainant in his initial statement filed in shape of affidavit also reiterates the said allegation. Thus, a prima facie case taking cognizance of offence under Section 138 of the Act is made out. The veracity of the contention made in the reply (Annexure-4) to the notice of complainant’s Advocate (Annexure-3) stated to have been sent by the accused-petitioner, can only be tested after recording evidence in the matter. Further, the correctness of contention of learned counsel for the petitioner that the complainant has played fraud on the petitioner and obtained his signature on the blank cheque as well as the agreement, is also a matter of trial and cannot be gone into in a petition under Section 482 Cr.P.C. 7. In that view of the matter, I am not inclined to interfere with the impugned order taking cognizance of offence. The CRLMC is accordingly dismissed. 8. The matter is pending since 2005. Hence, learned trial court is directed to dispose of I.C.C. Case No. 1599 of 2005 as expeditiously as possible, preferably by the end of April, 2018 after giving opportunity of hearing to the parties concerned. 9. The CRLMC is accordingly dismissed. 8. The matter is pending since 2005. Hence, learned trial court is directed to dispose of I.C.C. Case No. 1599 of 2005 as expeditiously as possible, preferably by the end of April, 2018 after giving opportunity of hearing to the parties concerned. 9. Registry is directed to send back the L.C.R. forthwith to facilitate early disposal of the case.