Orissa High Court
Meghnad Padhan vs Ashok Kumar Sinha …. Opposite Party on 23 February, 2026
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
AFR CRLREV No.307 of 2025
Meghnad Padhan .... Petitioner
Mr. Niranjan Singh-1, Advocate
-Versus-
Ashok Kumar Sinha .... Opposite party
Mr. Pankaj Kumar Jain, Advocate
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF HEARING:11.11.2025
DATE OF JUDGMENT:23.02.2026
1.
Instant revision under Section 438 read with Section
442 of the BNSS is filed by the petitioner challenging the
impugned judgment in Criminal Appeal No. 04 of 2023 of
learned Additional Sessions Judge, Titilagarh confirming the
order of conviction and sentence directed in 1.C.C. Case
No.14 of 2019 by the learned J.M.F.C., Titilagarh on the
grounds inter alia that the same is not legally tenable and
hence, liable to be set aside.
2. According to the petitioner, the impugned order of
conviction and sentence is otherwise bad in law and hence,
liable to be interfered with. The contention of the petitioner is
that the learned Trial Court has failed to appreciate the
evidence on record in its proper perspective and erroneously
reached at a conclusion that he is guilty of the alleged offence
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punishable under Section 138 of the N.I. Act. One of the
grounds of challenge is that the petitioner had taken a
consistent plea before the learned courts below that he had
never maintained the Bank Account, rather, such an account
had been opened in his name by the opposite party with a
view to reutilize the same to manage financial liabilities, but
it has not been taken judicial notice of and therefore, the
conviction order is not sustainable in law. The further
contention is that taking advantage of prior acquittance with
the petitioner, the complainant himself procured the signed
cheque and misutilized it with a view to harass him and
therefore, the conclusion arrived at by the learned Courts
below cannot be sustained. It has been the plea of the
petitioner that the opposite party’s claim to the effect that he
had given a friendly accommodation/loan to him was
believed despite having contradictions in the evidence
regarding the date of transaction etc., inasmuch as, the alleged
transaction said to have taken place on 9th May, 2018 but in
the affidavit mentioned to have taken place in the month of
October, 2018. The contention of the petitioner is, therefore,
that the impugned order of conviction is entirely based on
surmise and conjecture in absence of any concrete evidence
to establish his guilt. That apart, according to the petitioner,
no specific question was put to him at the time of his
examination under Section 313 Cr.P.C. towards the drawal of
the cheque in question and the handwriting available thereon.
It has been claimed further that the Bank Account of the
petitioner was lying dormant and at no point of time, he had
submitted any application to revive the same and therefore, in
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the light of the evidence on record, the presumption of guilt
has been sufficiently rebutted, hence, the learned courts
below committed a serious wrong in passing the order of
conviction and confirming the same, while dealing with the
appeal. With such other grounds, it has been pleaded by the
petitioner that the conviction order and the decision of the
learned courts below are liable to be set at naught.
3. Perused the LCR.
4. Heard Mr. Singh, learned counsel for the petitioner and
Mr. Jain, learned counsel for the opposite party.
5. The opposite party as the complainant claimed that he
had given a friendly loan of Rs.9,50,000/- (rupees nine lac
fifty thousand) to the petitioner and in that regard, the latter
had issued a post-dated cheque for the said amount drawn at
the Corporation Bank, Titilagarh for payment to him from an
account maintained there. It is further claimed that the cheque
was presented by the opposite party time and again and lastly
on 7th June, 2019 for payment through its banker but the same
was returned with an intimation dated 10th June, 2019 and a
remark ‘funds insufficient, whereafter, sent a legal notice on
20th June, 2019 to bring it to the knowledge of the petitioner
about the dishonour of the cheque and requested to make
payment of the amount within a period of fifteen days from
the date of receipt of the notice. According to the opposite
party, though, the notice was sent by him through Registered
Post with AD on 5th July, 2019 and duly received by the
petitioner, when the payment was not made within fifteen
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days, the complaint was filed registered as I.C.C. No.14 of
2019.
6. The learned Trial Court framed issues for
determination to find out and ascertain whether the petitioner
had issued any such cheque for the alleged amount in favour
of the opposite party and it was towards discharge in whole or
in part of any such legally enforceable debt or liability and a
case of dishonour of cheque is made out. In course of trial,
the opposite party examined himself as C.W.1 and the
petitioner an official witness, namely, Chandra Mohan
Kumbhar as D.W.1. Both sides adduced documentary
evidence in support of and against their respective plea.
Considering the evidence received on record, the learned
J.M.F.C., Titilagarh held and concluded that the opposite
party has successfully established a case under Section 138 of
the N.I. Act against the petitioner and accordingly, convicted
him and directed a sentence of one year SI and to pay a fine
of Rs.18,00,000/- (rupees eighteen lac) payable as
compensation as per Section 357 Cr.P.C. for the loss suffered
by the opposite party due to such non-payment, which
includes interest on the cheque amount, besides a default
sentence of three months SI with a further direction that the
compensation so awarded in case of default shall be realized
as per Section 421 Cr.P.C.
7. Against the order of conviction and sentence, the
petitioner approached the learned court below with an appeal
filed by him, however, it was dismissed on contest,
confirming the order of conviction in 1.C.C. Case No. 14 of
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2019. The learned Additional Sessions Judge, Titilagarh,
upon re-appreciation of evidence adduced by both the sides,
concluded that there is no reason to intervene with the order
of conviction for the fact that the learned JMFC correctly
appreciated it without any error having been committed with
a finding that the petitioner is guilty of the offence punishable
under Section 138 of the N.I. Act.
8. Mr. Singh, learned counsel for the petitioner would
submit that gross error has been committed by both the
learned courts below in ignoring the evidence on record. It is
the contention of Mr. Singh, learned counsel that the cheque
i.e. Ext. P-2 bears a signature as Meghnada Padhan, whereas,
the legal notice as at Ext.P-8 carries the name and is said to
have been served on one Meghanada Pradhan so also the
postal notice and receipt. It is claimed that the name of the
opposite party is Meghanada Pradhan before the learned Trial
Court and again there has been discrepancies in the record
and therefore, the impugned order of conviction and sentence
is liable to be quashed for being a case of mistaken identity. It
is further contended by Mr. Singh, learned counsel that legal
notice was shown to have been served on Meghnad Pradhan
S/o. Krushna Pradhan without any date mentioned as to when
the petitioner received the cheque amount from the opposite
party. That apart, the legal notice issued on 25 th September,
2019 to the said Meghnad Padhan marked as Ext.P-8 does not
bear any signature of the Advocate. Finally, it is contended
that the bank account was opened in the name of Meghnad
Padhan, S/o. Krushan Padhan, whereas, the case has been
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filed with the legal notice in the name of Meghnad Pradhan.
The contention is that the learned courts below ignored the
decisions of the Apex Court in K. Prakashan Vrs. P.K.
Surenderan (2008) 1 SCC 258 and Rahul Builders Vrs.
Arihant Fertilizers & Chemicals and others (2008) 2 SCC
321 and erroneously reached at a conclusion regarding an
offence under Section 138 of the NI Act to have been
committed by the petitioner and hence, the same deserves to
be nullified in the interest of justice.
9. Mr. Jain, learned counsel for the opposite party, on
the other hand, submits that any such ground with regard to
the identity of the petitioner was never a question before the
learned courts below. Rather, it is submitted that issuance of
post-dated cheque has been proved and the liability of the
petitioner and for the fact that cheque was dishonoured for the
reason of insufficiency of fund in the alleged account and
regard being had to the fact that a presumption is always
drawn in favour of discharge of a lawful debt or liability, it
has been rightly concluded by the learned courts below that
such presumption could not be rebutted. The material facts,
such as, the cheque was drawn and handed over to the
opposite party and presented before the Bank for encashment
and its dishonour with intimation and thereafter, legal notice
issued to the petitioner and his default in payment have been
established with evidence, hence, was the presumption
towards a lawful debt and therefore, the learned courts below
arrived at a conclusion that the petitioner is guilty of the
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offence under Section 138 of the N.I. Act and thus, it has to
be again confirmed.
10. The opposite party examined him as P.W.1 and during
examination-in-chief, it is deposed by him that he is a
respected businessman having a business dealing with
fertilizer and pesticide at Titilagarh and a close friend of the
petitioner for nearly ten years and in the month of October,
2018, the latter approached and requested him for a loan of
Rs.9, 50,000/- and on such request and as he was in dire need
of money, agreed to give the friendly loan and against such
loan, the alleged cheque was issued in his favour drawn on an
account in the Syndicate Bank at Titilagarh, which is
maintained by the petitioner himself. It is further deposed by
him that he kept on requesting the petitioner to make the
payment and at last, the cheque was presented before the
banker three times on 6th May, 2019, 27th May, 2019 and
finally on 7th June, 2019 and every time, the cheque was
returned with a Bank memo and remark ‘referred to the
drawer/funds insufficient and account dormant’. All the
returned Bank memos have been marked as Exts. P-5, P-6
and P-7 from the side of the opposite party. The legal notice
dated 22nd June, 2019 and the postal slips of the said notice
have been marked as Exts.P-8 and P-9. Referring to the Postal
Tracking Report of the consignment as Ext.P-10, it was
further deposed by the opposite party that the notice was duly
served on the petitioner. A reminder notice dated 25 th
September, 2019 was sent through an Advocate marked as
Ext. P-11 and proved by the opposite party, according to
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whom, the AD of such notice was received back with an
acknowledgement on 1st October, 2019. The opposite party
was cross-examined in great detail and it has been reiterated
that the petitioner was in need of money as his brother was ill
by then. It has also been reiterated that the alleged cheque
was presented in the Bank thrice and every time, it was
informed that there has been no sufficient fund in the account
of the petitioner. On the other hand, the petitioner did not
examine himself but Branch Manager of the Bank as D.W.1
and the evidence received from him was to the effect that the
alleged account was maintained in the name of one Meghnath
Padhan and admitted the fact that the cheque was presented
couple of times and was rejected as fund to be insufficient. As
per the evidence of D.W.1, on the first two occasions, the
account was shown as dormant. It is also deposed by the said
witness that he had intimated the opposite party about the
cheque having been rejected twice. In course of cross-
examination, D.W.1 claimed that he does not know or having
any acquittance with the parties. The statement of the account
maintained in the Bank by Meghnath Padhan was sought to
be proved by D.W.1., who, while under examination, further
deposed that it was the sole account of the account holder and
cannot be operated by the guarantor or introducer, to clear
any doubt as to whether such transaction had taken place on
6th May, 2019. It has been an attempt on the part of the
petitioner to deny the liability with the examination of D.W.1.
In fact, as per the evidence on record, it is suggested by the
petitioner that the account of Meghnath Padhan was dormant
and unless anything in writing was received, it could not have
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been revived and regularized. The Court finds that the
account was revived before the third time, when the cheque
was presented. In any case, the legal notice was issued to the
petitioner, when the cheque could not be honoured after the
presentation for the last time, admittedly, when the account of
the opposite party was no longer dormant. The question is,
whether, under the above circumstances, the petitioner having
issued the alleged cheque failed to discharge any liability and
hence, guilty of the offence under Section 138 of the N.I. Act.
11. The cheque has been marked as Ext. P-2 from the side
of the opposite party. The signature of the petitioner thereon
was never in dispute. It is only alleged by the petitioner that
the cheque was not issued in discharge of any legally
enforceable debt. Law is well settled that the burden of
proving such a fact is upon the petitioner. In other words, the
onus to prove a fact regarding the debt or liability rests on
who claims its existence, but in a case under Section 138 of
the N.I. Act, reverse presumption is to apply, which means, it
is for the drawer of the cheque to prove that the cheque was
not issued towards any such liability. Section 118 of the N.I.
Act stipulates that it shall be presumed and until the contrary
is proved that every negotiable instrument was made or
drawn for consideration. Furthermore, Section 139 of the N.I.
Act inter alia stipulates that the holder of the cheque was
received for discharge of whole or part of any debt or liability
and such presumption is to remain unless proved to the
contrary. For the said purpose, two incriminating
circumstances are to exist, one is, when the drawer of the
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cheque admits issuance of the cheque and the other one when
the complainant proves that the cheque was issued to him by
the drawer in discharge of a lawful debt. When issuance of
cheque is admitted by the drawer, in view of the reverse onus
clause, it shall have to be presumed that there is a debt or
liability to discharge with. The concept of reverse
presumption has been elaborately discussed and dealt with by
the Apex Court in ANSS Rajashekar Vrs. Augustus Jeba
Ananth (2020) 15 SCC 348.
12. It is made to understand from the record that the
opposite party opened the account for the petitioner to meet
certain exigencies, but no such evidence was let in to prove
that it was the opposite party, who was responsible for the
account opened in the name of the petitioner at the Bank.
Even by considering the evidence of D.W.-1, any such plea
from the side of the petitioner alleging the opposite party
being responsible for reviving the dormant account cannot be
accepted as it is not proved thereby. It was the petitioner
alone, who was entitled to manage the account and request
the Bank to revive the same, if it had become dormant. That
apart, as earlier stated, no dispute was ever raised by the
petitioner alleging that there was any identity crisis, a ground
which has been pleaded at present. According to the Court,
such a ground is an afterthought and without any substance,
when it had not been an issue at the time of trial.
13. The issuance of the cheque in the case at hand and
denial of the same by the petitioner has not been successfully
proved and therefore, the presumption is in support of the
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debt or liability, which would arise forthwith. The burden of
proof is on the petitioner to show that there has been no
liability as such, which could not be established in spite of the
testimony of D.W.1. For no apparent reason, the petitioner
did not examine himself and simply by referring to a fact
regarding the date and month of the transaction differing with
each other, the petitioner cannot be allowed to take advantage
of it when the fundamental facts regarding the issuance of
cheque and presentation of the same and its dishonour
followed by a legal notice have been proved to the hilt. The
intimation about the dishonour of the alleged cheque with a
Banker’s slip is prima facie evidence in view of Section 146
of the N.I. Act. The legal notice received by the petitioner is
also proved through Ext. P-10 followed by the reminder
notice as Ext.P-11. The postal AD of the reminder notice
stands proved as Ext. P-12. With such evidence received from
the side of the opposite party, it has to be held that the notice
was duly served on the petitioner and received back with
postal acknowledgement and hence, it was sufficient having
been sent in the correct address of the drawer of the cheque in
view of the Section 27 of the General Clauses Act.
Considering the evidence in its entirety with reference to the
provisions of the N.I. Act discussed hereinbefore and the
settled position of law, it has to be concluded that the
petitioner failed to discharge the onus in disproving the fact
vis-à-vis debt or liability with any such rebuttal evidence and
therefore, the learned J.M.F.C. did not commit any error in
reaching at such a conclusion. Similarly, the learned court
below while dealing with the appeal discussed and
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reappreciated the evidence adduced by both the sides and
concluded that reverse onus lies on the petitioner which could
not be proved even by preponderance of probability. A
reference has been made of a case law in Rangappa Vrs. Sri
Mohan (2010) 11 SCC 441 by the learned court below in
reaching at a conclusion that the petitioner was to account for
and in the event, a cheque is admitted to have been issued by
him, the presumption as contemplated under Section 138 of
the N.I. Act has to be drawn in favour of the complainant and
that mere assertion and explanation would not amount to
rebuttal of the presumption. According to the Court, in order
to rebut the presumption under Section 139 of the N.I. Act,
the petitioner is required to prove the circumstances under
which the cheque in question was issued. In the statement
under Section 313 Cr.P.C, the petitioner claimed false
implication in the hands of the opposite party but it has no
substance to stand with. As earlier stated, the petitioner
himself never stepped in to the witness box to adduce
evidence and rebut the claim of the opposite party. In such
view of the matter and having considered the plea of the
petitioner and his defence before the learned courts below and
the stand of the opposite party all along, it has to be
concluded that the order of conviction and sentence does not
suffer from any legal infirmity. But, at the same time, the
Court is inclined to reduce the amount of compensation to Rs.
12,00,000/- (rupees twelve lac), which is fair and reasonable,
as the learned courts below did not resort to any kind of
exercise in that regard, rather, imposed maximum fine
permissible extending upto twice the cheque amount.
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14. Accordingly, it is ordered.
15. In the result, the revision petition stands disposed of and
dismissed, however, with a modification of the compensation
amount awarded in favour of the opposite party. It is directed
that the learned J.M.F.C., Titilagarh shall have the liberty to
consider payment of the compensation in installments on such
terms and conditions as would be just and expedient in the
facts and circumstances of the case.
(R.K. Pattanaik)
Judge
Balaram
Signature Not Verified
Digitally Signed
Signed by: BALARAM BEHERA
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Designation: PERSONAL ASSISTANT
Reason: Authentication
Location: OHC, CUTTACK
Date: 25-Feb-2026 10:44:46
