Akshaya Kumar Kar Vs Purna Chandra Nayak

1. Heard Mr. Acharya, learned counsel for the petitioner and Mr. Panda, learned counsel appearing for and on behalf of Mr. Sahoo, learned counsel for the opposite party.

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Instant revision is filed by the petitioner challenging the impugned judgment in Criminal Appeal No.28 of 2009 as at Annexure-2 of the learned Additional Sessions Judge, Bhadrak on the grounds stated therein.

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Recorded the submissions of learned counsel for the respective parties.

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This Court by order dated 7^th August, 2025 in I.A. Nos.151 and 152 of 2024 had directed the petitioner to deposit a cheque amount of Rs.28,330/- and also the compensation amount of Rs.4,000/-, which according to Mr. Acharya, learned counsel appearing for him, has been complied with, whereafter,

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he has been released on bail. The submission is that the petitioner has remained in custody for four days and has been adequately penalized and that apart, the cheque amount with compensation of Rs.4000/- is already deposited in compliance of the Court’s order as above and hence, the impugned judgment i.e. Annexure-2 should be modified accordingly in the interest of justice.

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Mr. Panda, learned counsel for the petitioner justifies the impugned judgment at Annexure-2 confirming the order of conviction and sentence in 1CC Case No.322 of 2008.

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The opposite party filed the complaint in terms of Section 138 of the NI Act against the petitioner with the allegation therein about the cheque received by him being dishonored for an amount of Rs.28,330/- when it was tendered with his banker and despite a demand notice, the amount was not paid back. Considering the complaint received and evidence adduced from the side of the opposite party, with no evidence from the petitioner, the learned Special Judicial Magistrate, Bhadrak passed the order of conviction, while disposing of 1CC Case No.322 of 2008, directing the petitioner to undergo the sentence of three months simple imprisonment and to pay a fine of Rs.5000/- besides compensation of Rs.4000/- payable to the opposite party. The said conviction order and sentence was challenged in appeal and it was disposed of vide Annexure-2 by the learned Additional Sessions Judge, Bhadrak.

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Gone through the grounds stated in the revision petition and noted down the submission of Mr. Acharya, learned counsel for the petitioner and the response of the other side.

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Having regard to the complaint filed under Section 138 of NI Act, the fact that the cheque was drawn and issued by the petitioner for the alleged amount and since demand notice was sent by the opposite party and it was subsequent to the intimation received from banker, namely, Allahabad Bank, Agarpada Branch, Bhadrak, the Court finds that the learned court below held and concluded him to have committed the offence. When a cheque is drawn and issued by the drawer, a presumption is attached with regard to existence of a lawful debt. Such presumption is of course rebuttal in nature. In the case at hand, the opposite party proved the issuance of cheque by the petitioner and there has been no evidence led by the latter. In other words, there has been no rebuttal evidence received from the petitioner against the claim of the opposite party. So, therefore, considering the evidence in its entirety, the Court is of the view that the learned Trial Court did not err or commit any illegality in passing the order of conviction and sentence against the petitioner, which has ultimately been upheld by the Sessions Court in appeal.

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But, in so far as the fact that the cheque amount has already been deposited before the learned court below by the petitioner vide the Court’s order in I.A Nos.151 and 152 of

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2024 besides compensation amount and as the petitioner has been in custody for about four days, the Court is of the conclusion that the sentence, which has already been undergone by him, should be treated as the sentence directed by the learned Trial Court and upheld in appeal dispensing with the fine of Rs.5000/- as such a decision would serve the purpose and serve the ends of justice. The Court is also of the view that the opposite party should be directed to receive the amount deposited and lying with the learned Trial Court kept in a fixed deposit as has been directed which is the amount inclusive of the cheque amount and compensation.

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10. Accordingly, it is ordered.

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In the result, the revision petition is allowed in part. As a necessary corollary, the impugned judgment in Criminal Appeal No.28 of 2009 is hereby modified to the extent as aforesaid allowing the opposite party to receive the amount deposited before the learned Trial Court in 1CC Case No.322 of 2008 upon receiving a requisition in that regard.

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12. Urgent copy of this order be issued as per rules.

(R.K. Pattanaik)

Judge

Rojina

Signature Not Verified

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Digitally Signed Signed by: ROJINA SAHOO Designation: Junior Stenographer Reason: Authentication Location: OHC, CTC Date: 30-Oct-2025 17:29:25