MAHESWAR MISHRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner assails the order of the learned S.D.J.M. (Sadar), Cuttack in 1CC No. 127 dated 09.02.2007 taking cognizance of the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act' for brevity) and issuing processes against him.

(2.) The opposite party, i.e. the complainant before the learned lower Court, is the Proprietor/Owner of M/s. M.S. Fabricator and Coach Builder, Link Road, Cuttack. It is alleged that the accused is the owner of the Buses named and styled, "Laxmi", bearing Registration No. OR-05-H-5265, and "Great India" bearing Registration No. OR-02-J-6336 as well as the Proprietor of Bharati Construction. The accused, the present petitioner, allegedly requested the complainant to repair the body of the aforementioned buses, for an estimated cost of Rs. 4,99,611/-. The accused has paid Rs. 4,35,000/- prior to final settlement of the cost of the repair. As such, the accused had to pay a sum of Rs. 59,611/-. On 31.12.2006, the accused after acknowledging the outstanding dues with him allegedly issued the Cheque of Indian Overseas Bank, Rourkela bearing No. 116976 for Rs. 50,000/- in favour of the complainant. But subsequently when the complainant presented the same for encashment, it was dishonoured. Hence, he issued notice to the accused demanding payment of the money. Since the accused did not pay the money, he initiated a complaint case for the offence under Section 138 of the Act. The learned Magistrate after taking initial statement and perusing the documents filed by the complainant took cognizance of the offence and issued summons against the present petitioner. Such order of cognizance and issuance of process has been challenged in this revision.

(3.) In course of hearing of the revision, the learned Counsel for the petitioner mainly based his argument on two grounds, viz., (i) that since the Cheque was dishonoured due to countermanding and difference in signature of the drawer, a case under Section 138 of the Act is not made out; and (ii) certain documents were executed by one Nirod Chandra Maharana on 16.11.2006 and 17.11.2006 indicating that the Cheque Bearing No. 116976 for a sum of Rs. 50,000/- was issued by the accused Maheswar Mishra in the name of the complainant towards security for arranging money for repairing the vehicle with a promise and assurance that the Cheque will be returned to the said Maheswar Mishra. Hence, it is submitted that a case under Section 138 of the Act is not made out.