'Judicial Harakiri': Orissa High Court Criticizes Magistrate For Ignoring Direction To Decide Maintainability Of Cheque Bounce Case

The Orissa High Court has criticized a Judicial Magistrate First Class (JMFC) for dismissing a petition seeking to decide the preliminary question of maintainability of a cheque bounce case brought under Section 138 of the Negotiable Instruments Act, 1881 (the 'NI Act'), despite a clear direction from the High Court to decide the same. [2026 LiveLaw (Ori) 89]A Bench of Justice V. Narasingh took serious exception to such conduct on the part of the Magistrate and opined that it amounted to breach of hierarchal discipline in the judiciary. In the words of the Judge–“In the case at hand, despite the unequivocal direction of this Court to consider the question of maintainability, the Court below has returned a finding that the petition itself is not maintainable. Such an approach runs contrary to the settled principles of judicial discipline. If permitted to stand, it would undermine public confidence in the administration of justice and erode faith in the justice delivery system.”Briefly put, the Opposite Party No. 2 (OP-2) filed a complaint case before the JMFC, Jajpur Road against the petitioner alleging commission of offence under Section 138, NI Act (dishonour of cheque) and Section 318, BNS (cheating) for dishonour of a cheque of Rs.2,50,407/-. On 06.12.2024, the OP-2 issued the demand notice by registered post and since no acknowledgement was received, it instituted the complaint case on 10.01.2025. The petitioner filed a petition under Section 528 of the BNSS seeking to quash the case primarily on the ground that the case was filed prematurely, before expiry of the statutory period under proviso (b) to Section 138.Notably, the aforesaid proviso says, “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 regarding the return of the cheque as unpaid”. The third proviso to the Section further says that if the drawer of such cheque fails to make the payment of the said amount of money to the payee within fifteen days of the receipt of the said notice, he shall be deemed to have committed an offence under Section 138 NI Act.The contention of the petitioner was that even before expiry of the statutory period of notice, as has been provided in the proviso to Section 138 of NI Act, the complainant approached the Magistrate by filing the complaint case. Thus, he argued that the complaint case is premature and not maintainable.The Court, therefore, had granted liberty to the petitioner to raise the ground of maintainability before the trial Court. It was further directed that upon filing of a petition to that effect, it will be incumbent upon the trial Court to specifically consider the aforesaid aspect.Subsequently, the petitioner filed a petition, annexing the extract of the operative portion of the High Court's direction, to drop the proceeding for the want of maintainability. However, the JMFC rejected such application on the ground that the petitioner failed to raise the same as a preliminary question and thus, the case had proceeded to the advanced stage of recording of accused statement. The Magistrate, nevertheless, allowed him to raise his objection at the appropriate stage of trial.Being aggrieved by such rejection of the petition, the petitioner approached the High Court in this revision petition. He assailed the order of the JMFC for being untenable, especially in the light of a specific direction previously passed by the High Court. Upon perusing the materials, Justice Narasingh was of the view that the Magistrate was bound to take up the issue of maintainability before proceeding further in the case. He thus observed–“The edifice of the judiciary rests upon a hierarchical system. There is no embargo or fetter on subordinate Courts to exercise their jurisdiction independently in accordance with law. Indeed, such independence constitutes the very foundation of the adjudicatory process. However, at the same time, subordinate Courts cannot disregard or act in defiance of a direction issued by a superior Court concerning the manner in which an application is to be considered, however unpalatable such direction may appear to the subordinate Court.”The Court stressed on the importance of hierarchal discipline in the judiciary by placing reliance upon the judgment of the Supreme Court in Tirupati Balaji Developers (P) Ltd. v. State of Bihar (2004). The Court categorically held that it was not open for the JMFC to reject the petition ignoring the High Court's directive. Rather, he was required to pass a reasoned order on the question of maintainability. “The same amounts to patent breach of judicial discipline…This Court is constrained to hold that such approach on the part of the Court in seisin amounts to judicial “harakiri” and can never be countenanced,” the Bench added.Accordingly, the impugned...

'Judicial Harakiri': Orissa High Court Criticizes Magistrate For Ignoring Direction To Decide Maintainability Of Cheque Bounce Case

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'Judicial Harakiri': Orissa High Court Criticizes Magistrate For Ignoring Direction To Decide Maintainability Of Cheque Bounce Case

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