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CRLREV No.38 of 2026

IN THE HIGH COURT OF ORISSA AT CUTTACK

CRLREV No.38 of 2026

(In the matter of an application under Section 442 of the

BNSS)

----------------

R.K. Mansion Private

Limited, Bhubaneswar,

Khordha, represented

by its Managing Director

Jameswar Nath Sharma

…. Petitioner

-versus-

Rajesh Kumar Dash …. Opposite Party

For Petitioner : Mr. R.N. Mohanty, Advocate

For Opposite Parties : Mr. K.C. Kar, Advocate

Mr. R.K. Prusty, Advocate

CORAM: JUSTICE V. NARASINGH

DATE OF HEARING : 15.07.2026

DATE OF JUDGMENT : 22.07.2026

V. Narasingh,J. Heard learned counsel for the

Petitioner and learned counsel for the Opposite Party.

1. This Criminal Revision has been filed assailing

the judgment dated 01.12.2025 passed by the learned

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CRLREV No.38 of 2026

2

nd

Additional District and Sessions Judge,

Bhubaneswar, in Criminal Appeal No. 135 of 2024,

whereby the learned Appellate court, while affirming

the judgment of conviction dated 05.11.2024 passed

by the learned J.M.F.C., Cog-II, Bhubaneswar in ICC

Case No.135 of 2017 (T.R. Case No.77 of 2022) qua

the Petitioner, sentencing him to undergo Simple

Imprisonment (hereinafter referred to as “S.I.”) for a

period of two months and to pay compensation of an

amount of Rs.4,00,000/- (Rupees Four lakhs only),

which includes the interest on the cheque amount and

cost of litigation as well as cost for the mental agony,

to be awarded to the complainant under Section

357(3) of Cr.P.C., which shall be realized from the

convict like criminal fine, for commission of the offence

punishable under Section 138 of the N.I. Act and in

default of payment of the compensation amount fixed,

to undergo further S.I. for a period of two months.

2. For convenience of reference, the parties

shall be referred to as per their status before the

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CRLREV No.38 of 2026

trial court i.e., learned J.M.F.C., Cog-II,

Bhubaneswar.

3. The case of the Complainant-Opposite Party,

in brief is that, the accused-Petitioner had given a

proposal to the Complainant to purchase one duplex

house and being satisfied with the documents, the

Complainant paid a part consideration of

Rs.20,00,000/- (Rupees Twenty Lakhs only) out of

total consideration of Rs.25,00,000/- (Rupees Twenty

Five Lakhs) on 05.05.2015 for purchasing the duplex

house. The accused-Petitioner expressed his inability

to provide the duplex house which was supposed to be

bought by the Complainant. The accused-Petitioner

executed a written agreement with the Complainant on

23.08.2016 and thereby agreed to refund the part

consideration amount of Rs.20,00,000/- with interest

@10% per annum from the date of payment i.e.

05.05.2015.

Accordingly, the company of the accused-

Petitioner, in order to discharge the liability, issued two

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CRLREV No.38 of 2026

cheques in favour of the Complainant i.e., cheque

No.031153 for Rs.2,60,000/- and cheque No.062959

for Rs.19,40,000/-, both dated 20.09.2016 drawn on

ICICI Bank, Bhubaneswar Branch. As per the

instruction of the accused-Petitioner, the Complainant

deposited the said cheques with State Bank of India,

Rail Vihar Branch, Bhubaneswar. The cheques were

returned with the remarks "Funds Insufficient" on

21.09.2016 and when again presented on 18.11.2016,

were also returned with the remarks "Funds

Insufficient." Thereafter, Complainant-Opposite Party

instituted a complaint under Section 138 of N.I. Act

against the accused persons (O.P No.1 and 2) and

cognizance of the offences was taken against the

accused-Petitioner.

4. The defense plea was that the Complainant

was working with the accused-Petitioner for a long

time and taking advantage of the same, he unfairly

procured the cheque(s) and used the same.

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CRLREV No.38 of 2026

5. To substantiate his claim, the Complainant

examined himself as P.W.1 and accused No.2

(Jameswar Nath Sharma- Petitioner) examined himself

as D.W.1.

Several exhibits were marked at the behest of

the Complainant as well as at the instance of the

accused-Petitioner.

6. On going through the evidence on record

including the recitals of the demand notices at

Exhibits-4 and 5 and certified copy of the Agreement

(Exhibit.7) between accused-Petitioner and the

Complainant- Opposite Party, the learned Trial Court

found the accused-Petitioner guilty for commission of

offence under Section 138 of N.I. Act and imposed

punishment for S.I. of two months and directed

recovery of compensation of Rs.4,00,000/- (Rupees

Four lakhs only).

7. Assailing the same, the accused-Petitioner

preferred Criminal Appeal No.135 of 2024 in the Court

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CRLREV No.38 of 2026

of learned 2

nd

Additional District & Sessions Judge,

Bhubaneswar.

7-A. The Appellate Court considered the evidence

on record and refused to interfere with the order of

conviction and sentence as well as the compensation.

8. Being aggrieved, the present revision has

been preferred.

9. Learned counsel for the Petitioner Mr.

Mohanty, submits that the appreciation of the evidence

by the Trial Court as affirmed by the Appellate Court is

ex facie perverse so as to warrant interference by this

Court.

10. It is his submission that the notice at Exhibit-

4 is not in terms of the Proviso (b) to Section 138 of

the N.I. Act. As such, the very institution of the

proceeding is bad in law and the same having not been

considered by the Trial Court as well as the Appellate

Court, the matter merits interference of this Court in

exercise of its revisional jurisdiction.

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CRLREV No.38 of 2026

10-A. Admittedly, such a ground has not been taken

either before the Trial Court nor the Appellate Court.

11. Per contra, learned counsel appearing for the

Complainant-Opposite Party submits that such stand

admittedly having not been raised before the Courts

below, it is not open for the accused-Petitioner to

canvass the same before this Court in this revision for

the first time.

12. Before proceeding to consider the evidence on

record for limited purpose of evaluating the submission

of the learned counsel for the accused-Petitioner that

the appreciation of the same is ex facie perverse, this

Court feels it is prudent to answer the preliminary

objection raised by the learned counsel for the

Complainant-Opposite Party regarding infraction of

proviso (b) to Section 138 of the N.I. Act being urged

by the accused.

For convenience of reference Section 138 of

the N.I. Act is quoted as under:

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CRLREV No.38 of 2026

“xxx xxx xxx

138. Dishonour of cheque for

insufficiency, etc., of funds in the

account.—Where any cheque drawn by a

person on an account maintained by him with

a banker for payment of any amount of money

to another person from out of that account for

the discharge, in whole or in part, of any debt

or other liability, is returned by the bank

unpaid, either because of the amount of

money standing to the credit of that account is

insufficient to honour the cheque or that it

exceeds the amount arranged to be paid from

that account by an agreement made with that

bank, such person shall be deemed to have

committed an offence and shall, without

prejudice to any other provision of this Act, be

punished with imprisonment for a term which

may extend to two years, or with fine which

may extend to twice the amount of the

cheque, or with both:

Provided that nothing contained in this

section shall apply unless—

(a) the cheque has been presented to

the bank within a period of six months from

the date on which it is drawn or within the

period of its validity, whichever is earlier;

(b) the payee or the holder in due

course of the cheque, as the case may be,

makes a demand for the payment of the

said amount of money by giving a notice

in writing, to the drawer of the cheque,

within thirty days of the receipt of

information by him from the bank

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CRLREV No.38 of 2026

regarding the return of the cheque as

unpaid; and

(c) the drawer of such cheque fails to

make the payment of the said amount of

money to the payee or as the case may be, to

the holder in due course of the cheque within

fifteen days of the receipt of the said notice.

xxx xxx xxx ”

(Emphasized)

13. So far as the exercise of revisional jurisdiction

by this Court is concerned, its contours are hedged by

judicial pronouncements and the underlying principle is

that the Court should be slow in re-appreciating the

evidence unless consideration thereof by the Courts

below suffer from patent perversity. Yet, the doors of

this Court in exercising revisional jurisdiction ought not

to be shut, when violation of basic ingredients of an

offence are urged even at the stage of revision.

14. The grounds to be taken before the learned

Courts below are within the domain of the counsel

appearing and the client who reposed implicit trust in

the ability of his counsel ought not to suffer merely

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CRLREV No.38 of 2026

because such a ground was not urged before the

Courts below.

14-A. In this context, reliance can be made to the

judgment of the Apex Court in the case of Rafiq v.

Munshilal

1

, wherein the Hon’ble Court has taken a

view that a Party cannot be made to suffer because of

the inaction of his Advocate.

“xxx xxx xxx

3. The problem that agitates us is whether

it is proper that the party should suffer for the

inaction, deliberate omission, or misdemeanour

of his agent. The answer obviously is in the

negative. …… However, we cannot be a party

to an innocent party suffering injustice merely

because his chosen advocate defaulted.

xxx xxx xxx ”

15. Hence, assessing the rival contentions, this

Court is persuaded to hold that it is open for the

accused-Petitioner to assail the findings of the learned

Trial Court inter alia, on the ground of infraction of

proviso (b) to Section 138 of the N.I. Act.

16. To fortify his submission, regarding infraction

of proviso (b) to Section 138 N.I. Act, the learned

1

Rafiq v. Munshilal, (1981) 2 SCC 788

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CRLREV No.38 of 2026

counsel for the accused-Petitioner has placed reliance

on the judgment of the Apex court in the case of

Kaveri Plastics v. Mahdoom Bawa Bahrudeen

Noorul

2

as well as the judgment of the Kerala High

Court in the case of A.C. Raj v. M. Rajan

3

.

The law relating to import of notice

mentioned in proviso (b) to Section 138 N.I. Act has

been succinctly stated in paragraphs 8, 8.1 and 8.2 of

the judgment Kaveri Plastics (supra)

2

, which are

extracted hereunder:

“xxx xxx xxx

8. From the aforestated reiterative

pronouncements and the principles

propounded by the courts, the position of law

that emerges is that the notice demanding the

payment of the amount covered by the

dishonoured cheque is one of the main

ingredients of the offence under section 138 of

the Negotiable Instruments Act. In the event of

the main ingredient not being satisfied on

account of discrepancy in the amount of

cheque and one mentioned in the notice, all

proceedings under section 138 of the

Negotiable Instruments Act would fall flat as

bad in law. The notice to be issued under

2

Kaveri Plastics v. Mahdoom Bawa Bahrudeen Noorul , 2025 SCC Online SC

2019

3

A.C. Raj v. M. Rajan, 1996 SCC OnLine Ker 284

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CRLREV No.38 of 2026

proviso (b) to section 138 of the Act, must

mention the same amount for which the

cheque was issued. It is mandatory that the

demand in the statutory notice has to be the

very amount of the cheque. After mentioning

the exact cheque amount, the sender of the

service may claim in the notice amounts such

as legal charges, notice charges, interest and

such other additional amounts, provided the

cheque amount is specified to be demanded for

payment.

8.1. A failure in above regard, namely when

the cheque amount is not mentioned in the

proviso (b) notice or the amount different than

the actual cheque amount is mentioned, in the

notice, such notice would stand invalid in eye

of law. The notice in terms of proviso (b) being

a provision in penal statute and a condition for

the offence, it has to be precise while

mentioning of the amount of the cheque which

is dishonoured. Even if the cheque details are

mentioned in the notice but corresponding

amount of cheque is not correctly mentioned,

it would not bring in law the validity for such

notice. Here the principle of reading of notice

as a whole is inapplicable and irrelevant. Any

elasticity cannot be adopted in the

interpretation. It has to be given technical

interpretation.

8.2. The condition of notice under proviso (b)

is required to be complied with meticulously.

Even typographical error can be no defence.

The error even if typographical, would be fatal

to the legality of notice, given the need for

strict mandatory compliance. And in the facts

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CRLREV No.38 of 2026

of the present case, the explanation that

mentioning of wrong amount in the cheque

was in the nature of typographical or

inadvertent error could hardly be accepted, for

the so-called mistake occurred and recurred in

both the notices dated June 8, 2012 and

September 14, 2012.

xxx xxx xxx”

17. The judgment in the case of A.C. Raj

(supra)

3

is also to the same effect and the accused-

Petitioner relies on paragraph-11 thereof, which is

extracted hereunder:

“xxx xxx xxx

11. There is another reason also which justifies

the acquittal. Ext. P3 is the office copy of the

notice contemplated by proviso (b) to section

138. There, payment was demanded not only

of the amount covered by the cheque, but also

interest thereon without specifying the rate of

interest. The learned counsel for the

respondent would urge that such a notice is an

insufficient notice or a notice which cannot be

treated as legal under proviso (b) to section

138. In support of this contention, reliance was

placed on the decision reported in 1996 (2)

KLT 886 (Gopa Devi Ozha v. Sujit Paul). The

decision was rendered by the High Court of

Calcutta. There, the amount covered by the

cheque was Rs. 5,79,000/- and the amount

claimed under the notice was Rs. 6,50,000/-.

In considering the legality and sufficiency of

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CRLREV No.38 of 2026

that notice, that court held that the words “the

said amount” in proviso (b) to section 138 and

identical words in proviso (c) to that section

would necessarily indicate that the notice must

be one demanding the amount covered by the

cheque and nothing more or nothing less.

According to that court, a notice claiming a

higher amount or a lesser amount makes the

notice insufficient and vague, and such a

notice will be illegal. I do not see any reason to

disagree with the learned Judge who rendered

the above said decision.

xxx xxx xxx ”

18. Learned counsel for the Complainant submits

that the above said judgments are of no assistance, in

so far as the present lis is concerned.

19. To appreciate the grounds urged by the

learned counsel for the accused-Petitioner, it is apt to

refer to Exhibit-4, the notice which was issued on

behalf of the Complainant dated 30.11.2016, the same

is culled out hereunder for ready reference

“xxx xxx xxx

Ref:15 Date:30/11/2016

For and on behalf of:

Rajesh Kumar Dash

xxx xxx

To

1. R.K.Mansion Private Ltd.,

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CRLREV No.38 of 2026

xxx xxx

2. Jameswar Nath Sharma

xxx xxx

Managing Director of R.K. Mansion Private Ltd.

NOTICE

Dear Sir,

Under the instruction of my above named

client I serve this notice as here under.

1. That, my client’ had entered into an oral

agreement with you to purchase one duplex

house situated at Mouza-Kurundi, Khata No.1.

Plot No.964 in the name and style of R. K. Villa

Duplex.

2. That on 05.05.2015 my client had paid a part

consideration amount of Rs.20,00,000/- (Rupees

twenty lakhs) only out of total consideration of

Rs.25,00,000/- (Rupees twenty five lakhs) only.

3. That you expressed your inability to provide

the duplex house and promised to refund the

part consideration amount of Rs.20,00,000/-

(Rupees twenty lakhs) only with interest @ 10%

per annum from the date of payment i.e.

05.05.2015 for one year as total amount of

Rs.22,00,000/-(Rupees twenty two lakhs) only

and executed an agreement to that effect on

23.08.2016.

4. That, in order to discharge your liability you

had issued two numbers of cheques bearing

No.031153 amounting to Rs.2,60,000/-(Rupees

two lakhs sixty thousand) only dtd.20.09.2016

and another cheque bearing No. 062959

amounting to Rs.19,40,000/-(Rupees nineteen

lakhs forty thousand)only both are drawn on

ICICI Bank, Bhubaneswar branch Unit-III,

Opposite Sriya Talkies, Off- Janpath,

Bhubaneswar.

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CRLREV No.38 of 2026

5. That, as per your instruction of my client

deposited the said two nos cheques with his

banker, State Bank of India, Rail Vihar Branch,

Bhubaneswar on 20.09.2016 which was

returned with remarks "Funds Insufficient" on

dd.21.09.2016. My client again deposited the

said two nos cheques with his banker as per

your instruction on 18.11.2016 which was

returned with remarks "Funds Insufficient" in

return Memo on dtd.19.11.2016.

6. That, my client demand you to make

payment of Rs.22,00,000/-(Rupees twenty two

lakhs) only within a period of 15 days of receipt

of this demand notice, failing which my client

shall be constrained to initiate both criminal and

civil action against you for realization of the said

amount with interest.

xxx xxx xxx ”

(Emphasised)

20. It is stated by the learned counsel for the

Petitioner referring to the said notice in the context of

the cheque in question i.e.,No.031153 amounting to

Rs.2,60,000/- drawn on ICICI Bank Bhubaneswar,

Branch-3, Branch Unit-III, Opposite Sriya Talkies, of

Janpath, Bhubaneswar, that notice the amount

demanded is admittedly Rs.22,00,000/- and placing

reliance on the judgment of the Apex Court in the case

of Kaveri Plastics (supra)

2

as well as the judgment

of the Kerala High Court in the case of A.C. Raj

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CRLREV No.38 of 2026

(supra)

3

, it is vehemently urged that the notice does

not reflect the exact amount of the cheque, which was

dishonoured as such there is patent infraction of

proviso (b) to Section 138 of N.I. Act.

21. On a bare perusal of the notice, it is seen that

the said notice related to the two cheques, one which

is the subject matter of the present revision and the

other being for an amount of Rs.19,40,000/-, in

respect of which CRLREV No.1116 of 2026 has been

preferred.

22. The cheque amount mentioned in the notice

which has been referred by the Apex Court in the case

of Kaveri Plastics (supra)

2

was to the tune of Rs.1

crore and the complaint asked for payment of Rs.2

crores and in the said context the Apex Court laid

down the law as extracted hereinabove in

Paragraphs.8 to 8.2 and in the judgment of the Kerala

High Court in A.C. Raj (supra)

3

relied upon by the

learned counsel, it is seen that the notice was issued

“not only of the amount covered by the cheque, but

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CRLREV No.38 of 2026

also interest thereon without specifying the rate of

interest” and in that context, the Court considered

proviso (b) to Section 138 of the N.I. Act and the

import of the words "the said amount".

22-A. The High Court of Kerala in the

aforementioned judgement held that the said notice

was “insufficient and vague ” and was not in

consonance with the notice as envisaged under Proviso

(b) to Section 138 of the N.I. Act and dismissed the

complaint.

23. On a bare perusal of the notice issued in the

case at hand at Exhibit-4, the same does not suffer

from any infirmity and there is no embargo in law for

issuing one notice for two cheques which have been

dishonoured and on a bare perusal of the notice in

question (Exhibit-4), it is seen that the amount

claimed is the amount for which the cheque(s) have

been issued. As such, the aforesaid judgements relied

upon by the Petitioner are clearly distinguishable on

facts and are of no assistance to the Petitioner.

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CRLREV No.38 of 2026

23-A. Reference in this regard is made to the

judgment of Fayaz Ahmad Rather v. Tariq Ahmad

Wani

4

, wherein the High Court of Jammu and Kashmir

and Ladakh held thus;

“xxx xxx xxx

14. The issue as to whether a single complaint

would be maintainable in respect of more than

three cheques has been dealt with by various

High Courts of this Country and it has been the

consistent view of the Courts that a single

complaint in respect of dishonour of more than

three cheques is maintainable if a consolidated

notice of demand is served upon the accused….

xxx xxx xxx”

24. On going through the judgements passed by

the Trial Court as well as the Appellate Court, it is seen

that the Trial Court based its judgment on the

following counts;

“xxx xxx xxx

4. Points for Determination:

From the facts and circumstances of the case,

the following points for determination comes to

light:

I. Whether the cheques bearing No. 062959 of

ICICI Bank, Bhubaneswar Branch, Unit No.-III,

Opp. Sriya Talkies, Off Janpath, Bhubaneswar-

751001, amounting to Rs. 19,40,000/-, is issued

by the accused persons to the complainant and

4

Fayaz Ahmad Rather v. Tariq Ahmad Wani , 2025 SCC OnLine J&K 176

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CRLREV No.38 of 2026

the said cheque was issued by the accused

persons (as the same persons in one) towards

discharge in part of any legally enforceable debt

or other liability from the complainant?

II. Whether the complainant presented the said

cheque in his bank within three months from the

date on which it was drawn or within the period

of its validity?

III. Whether the said cheque was dishonoured

by the bank on any ground which attracts

implementation of Section 138 of the Act?

IV. Whether the complainant has made demand

for payment of the dishonoured cheque amount

from the accused persons by sending a demand

notice in writing to the accused persons within

thirty days of the receipt of information from the

bank regarding the return of the cheque as

unpaid/dishonoured?

V. Whether the accused persons have failed to

make the payment of the said cheque demanded

amount of money to the complainant within

fifteen days of the receipt of the said pleader's

notice from the complainant?

VI. Whether the complaint petition is

maintainable?

xxx xxx xxx ”

25. The Appellate Court on scrutiny of such

judgment has noted that the Accused No.2 examined

as D.W.1 in the original complaint case has admitted

Exhibit-1, the cheque in question and also the

signature. It also took cognizance of the fact that no

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CRLREV No.38 of 2026

steps have been taken to substantiate the defence plea

that the cheque was forged and misused.

26. It also referred to Exhibit-7, i.e., the

agreement between the parties, which has been

admitted in the case at hand by Accused No. 2 in his

individual capacity as well, without any objection.

It was also noted that the accused was

impleaded in his individual capacity as well as the

company has been cited as co-accused.

26-A. The Appellate Court has affirmed the finding

in this regard by the Trial Court that there is no

infraction regarding impletion of proper parties.

27. On scrutiny of the materials and evidence on

record, this Court finds that the Complainant had filed

the original complaint against the company so also the

Managing Director, Jameswar Nath Sharma in his

individual capacity.

It is apt to note that this revision has been

preferred by the Petitioner as managing director

though the appeal was filed by the Petitioner in his

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CRLREV No.38 of 2026

capacity as managing Director as well as in his

individual capacity, as such, the individual liability fixed

so far as of the accused Jameswar Nath Sharma is

concerned has not been assailed and attained finality.

28. On a conspectus of the materials on record

this Court finds that, there is no infirmity in the

appreciation of evidence by the Trial Court as affirmed

by the Appellate Court, in the light of the provisions as

contained Section 138 of the N.I. Act so as to warrant

interference of this Court in exercise of its revisional

jurisdiction.

29. Accordingly, the CRLREV stands rejected.

(V. NARASINGH )

Judge

Orissa High Court, Cuttack

Dated the 22

nd

July, 2026/ Soumya

22.07.2026/Uploaded