Dismissed¶28

Sivanand Choudhury v. State of Odisha

Orissa HC19 Nov 2025CRLREV/239/2022

Case brief

AI extract

What is this about?

Sivananda Choudhury v. State of Orissa; CRLREV No.239 of 2022; High Court of Orissa at Cuttack; Justice R.K. Pattanaik; order dated 19.11.2025; Section 138 NI Act; 1CC Case No.384 of 2013; Criminal Appeal No.22 of 2016; advance cheque; legally enforceable debt; presumption of lawful debt; rebuttal evidence; complaint not filed within stipulated period; conviction upheld; revision dismissed; Rs.4.5 lac cheque; Rs.5 lac compensation.

What did the court decide?

The plea that the cheque in question was an advance cheque was never raised before the learned court below, and the Court is not inclined to accept such a ground at the revision stage. ¶23

Sivanand Choudhury Vs State of Odisha — Cheque Dishonour | Orissa HC (2025)

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the cheque issued by the petitioner was an advance cheque not in connection with a legally enforceable debt, so that no offence under Section 138 NI Act was made out. +1 more

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Court's answer

The plea that the cheque in question was an advance cheque was never raised before the learned court below, and the Court is not inclined to accept such a ground at the revision stage.

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Ratio / Principle

The ground that the complaint was not filed within the stipulated period was similarly never agitated before the learned Courts below; the petitioner did not raise it even in the appeal against conviction and sentence.

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Key takeaways

On issuance of a cheque the presumption lies in favour of existence of a lawful debt, and it is for the accused to submit evidence in rebuttal; in the present case the petitioner adduced no evidence, oral or documentary.ratio¶24
Considering the evidence on record, the learned Court below did not err in holding the petitioner guilty of an offence punishable under Section 138 NI Act.ratio¶24
Issuance of the cheque without any rebuttal evidence from the petitioner leads to the inevitable conclusion of existence of a lawful debt; the order of conviction and sentence (Annexure-1) was rightly upheld in appeal (Annexure-2) and needs no interference.

Detailed headnote1 paragraphs

Criminal revision (CRLREV) - conviction under Section 138 NI Act affirmed. The petitioner challenged the judgment dated 27.04.2022 of the learned 1st Additional Sessions Judge, Berhampur in Criminal Appeal No.22 of 2016, which had confirmed his conviction by the learned Special Judicial Magistrate, Berhampur (SI of one year, compensation of Rs.5 lac, default further SI of six months) for dishonour of a cheque dated 24.03.2013 for Rs.4.5 lac drawn on ICICI Bank, Berhampur. His pleas that the cheque was an 'advance cheque' not issued towards a legally enforceable debt, and that the complaint was not filed within the stipulated period, were raised for the first time in revision and rejected as never agitated below. Since the accused adduced no rebuttal evidence, the presumption of a lawful debt stood unrebutted; the conviction and sentence were held rightly upheld in appeal and needing no interference. Revision petition dismissed (R.K. Pattanaik, J., 19.11.2025).

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IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.239 of 2022

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Sivananda Choudhury

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…. Petitioner

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Mr. A. Bhuyan, Advocate

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-Versus-

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State of Orissa and another

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…. Opposite Parties

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Mr. S.K. Swain. AGA Mr. S. K. Dash, Advocate Mr. H. Mohanta, Advocate for O.P.No.2

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CORAM:

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MR. JUSTICE R.K. PATTANAIK

ORDER 19.11.2025

Order No.

Heard Mr. Bhuyan, learned counsel for the petitioner and Mr. Mohanta, learned counsel appearing on behalf of Mr. Dash, learned counsel for opposite party No.2.

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Instant revision petition is filed by the petitioner challenging the impugned judgment dated 27^th April, 2022 passed in connection Criminal Appeal No.22 of 2016 by the learned 1^st Additional Sessions Judge, Berhampur on the grounds stated.

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Opposite party No.2 filed the complaint in 1CC Case No.384 of 2013 alleging the petitioner to have committed an offence punishable under Section 138 of the NI Act with the claim that the latter issued an advance cheque dated 24^th March, 2013 for amount of Rs.4.5 lac from ICICI Bank, Berhampur towards discharge of a debt and the same, on being presented for encashment, stood dishonored on the ground of insufficient

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fund in the account. Considering the complaint, the learned Special Judicial Magistrate, Berhampur disposed it of with the finding that the petitioner is guilty of the alleged offence and convicted him thereunder. The petitioner after such conviction was directed to undergo SI of one year and to pay compensation of Rs.5 lac to opposite party No.2 and in default to undergo further sentence of six months. The said order of conviction and sentence was challenged in appeal before the learned court below but it has been dismissed vide Annexure-2.

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Recorded the submission of Mr. Bhuyan, learned counsel for the petitioner. According to the petitioner, he had given an advance cheque not in connection with a legally enforceable debt, which was mis-utilised by opposite party No.2, hence, therefore, no offence under Section 138 of the NI Act has been established. However, the learned Courts below concluded otherwise and convicted the petitioner under Section 138 NI Act. It is submitted that between the statutory period, the complaint was not filed and the same has not been taken cognizance by the court of 1^st instance and in appeal and therefore, the impugned order of conviction and sentence is liable to be set aside.

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Mr. Mohanta, learned counsel for the opposite party No.2 justifies the impugned judgment at Annexure-2.

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Admittedly, the cheque was issued and received by opposite party No.2 for an amount of Rs.4.5 lac and it was drawn on ICICI Bank. It is not in denial by the petitioner that

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the cheque was issued by him but the plea is that it was an advance cheque without any lawful debt created. The learned Special Judicial Magistrate, Berhampur considered the evidence received from opposite party No.2 only, as no evidence was adduced from the side of the petitioner. Considering the claim of opposite party No.2 and since alleged cheque was received by her and as no such plea that the cheque in question was an advance cheque was ever raised before the learned court below, the Court is not inclined to accept such a ground at present. As regards, the complaint not filed within the stipulated period, similarly the ground was never agitated before the learned Courts below. The petitioner though filed an appeal challenging the order of conviction and sentence under Section 138 of the NI Act did not raise the above ground and as a result, the decision of the learned Special Judicial Magistrate, Berhampur was confirmed.

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The law is settled that when a cheque is issued, the presumption lies in favour of existence of a lawful debt and in that case, it is for the accused to submit evidence in rebuttal. But, in the case at hand, the petitioner did not adduce any evidence be it, oral or documentary. The plea with regard to advance cheque issued having no lawful debt to discharge and demand notice followed by complaint not filed within stipulated period have not been raised earlier. Considering the evidence on record, it can therefore be said that the learned Court below did not err in holding the petitioner guilty for an offence punishable under Section 138 NI Act. The offence is a

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technical one and therefore, issuance of cheque without any rebuttal evidence received from the side of the petitioner leads to an inevitable conclusion about existence of a lawful debt to discharge and therefore, it has to be held that the order of conviction and sentence as at Annexure-1 is rightly upheld in appeal vide Annexure-2, which needs no interference.

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