Punjab-Haryana High Court
Rakesh Kumar vs Ravinder Kumar & Anr on 25 August, 2011
Author: A.N.Jindal
Bench: A.N.Jindal
Crl.Rev No.230 of 2006 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl.Rev No.230 of 2006 (O&M)
Date of Decision: 25.08.2011
Rakesh Kumar
...Petitioner
Vs.
Ravinder Kumar & Anr. ...Respondents
BEFORE: HON'BLE MR.JUSTICE A.N.JINDAL
Present: Mr.S.K.Bawa, Advocate,
for the petitioner.
Mr.Baljinder Singh Sra, Addl.A.G., Punjab.
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1. Whether Reporters of local papers may be allowed to see the judgment?
2. Whether to be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest.
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A.N.Jindal, J.
Vide judgment dated 12.04.2005 the accused/petitioner (herein referred as the petitioner) was slapped with one year and six months' of imprisonment and a fine of Rs.5000/- for allowing the cheque worth Rs.65,400/- to be dishonoured. His appeal was also dismissed on 25.01.2006, thus both are now under challenge.
The petitioner in order to discharge the legally enforceable liability had issued a cheque for a sum of Rs.65,400/- in favour of the complainant with the assurance that the same would be Crl.Rev No.230 of 2006 2 encashed and honoured. On tendering of the said cheque it was returned with the remarks 'Funds Insufficient''. As such the respondent had to issue a notice Ex.C.1 dated 18.05.2004 but to no response; hence the complaint was filed by him against the petitioner on 15.06.2004.
After recording preliminary evidence, the petitioner was summoned and he faced trial. During trial the complainant examined three witnesses.
When examined under section 313 Cr.PC, the petitioner denied all the incriminating circumstances appearing against him and pleaded his false implication. However, he stated that he was running a lottery/committee scheme and the respondent obtained his signatures on the blank cheque and subsequently, created valuable security in his favour, however, no evidence was led in defence.
The petitioner failed to convince regarding his plea before the trial court as well as the appellate court; hence this revision petition.
Heard, the petitioner has not disputed his signatures over the cheque Ex.CW 2/4. He has also not disputed if notice was not issued to him. His simple plea is that the respondent committed cheating as he converted a blank cheque which was issued by him as security for his mother who was to make payment of the lottery which is commonly known as 'Committee in the Mohalla'. Plea set up by the accused appears to be contradictory. On one side, he has stated that the cheque is the result of fraud but on the other hand he Crl.Rev No.230 of 2006 3 states that the cheque was received by him as a security of the Committee/lottery of his mother. As per contra the complainant while appearing as CW 3 has stated that the petitioner had received an amount of Rs.65,400/- on 1.04.2000 from him and after settling the accounts, the petitioner had issued the cheque. No evidence has been led in order to prove the plea as set up by the petitioner in his defence. No person was examined in order to prove that his mother was indulging in the lottery scheme or that he had issued the blank cheque.
I also do not find any merit in the contention raised by the learned counsel for the petitioner that the onus lay upon the complainant to prove that the cheque was issued for legally enforceable liability. As presumption is attached to the fact that if the cheque is issued then it will be presumed that it was issued for consideration and in those circumstances it was not necessary for the complainant to prove that there was some existing liability. Hon'ble Supreme Court in case M/s M.M.T.C. Ltd. & Anr. Vs. M/s Medchl Chemicals an Pharma P.Ltd. & Anr. 2002 (1) Civil Court Cases, 13, has observed as under:-
" There is, therefore, no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability. The burden of proving that there is no existing debt or liability, was on the respondents. Thus they have to discharge in the trial. At this stage, merely on the basis of averments in the Crl.Rev No.230 of 2006 4 petition filed by them the High Court could not have concluded that there was no existing debt or liability." Similarly, it was observed in case Chand Rattan Newar Vs. Shyam Rattan Newar 2000 (3) Civil Court Cases 642 as under:-
"3. However, I find no merit in this contention of the learned counsel for the petitioner in AIR 1998 SC 1057, M/s Modi Cements Ltd. Vs. Kuchil Kumar Nandi, it was held by their Lordships of Supreme Court that once a cheque is issued by the drawer presumption under section 139 in favour of holder must follow. It was further held in the said authority that merely because the drawer issues a notice to the drawee or to the bank for stoppage of the payment, it will not preclude an action under section 138 by the drawee or the holder of a cheque in due course. It was further held in the said authority that the accused of course would get an opportunity under section139 of the Act to rebut the presumption at the trial."
In the instant case also there was no specific requirement for the complainant to plead specifically in the complaint the details of the amount which he had paid to the petitioner against which the cheque was issued and the onus lay heavily upon the respondent to prove that the cheque was not issued against legally enforceable Crl.Rev No.230 of 2006 5 liability, which the petitioner has failed to establish.
Now this court merely on the basis of the pleadings in the revision cannot proceed to decide that it was not against such liability. Even otherwise, both the courts below have appreciated the evidence in the right perspective and there are concurrent findings of fact that the petitioner in order to discharge the legally enforceable liability had issued the cheque which was dishonoured. Now re- appreciation of evidence is not called for while exercising supervisory powers at this revisional stage, which is very limited.
Interference could be made only if the judgment is based on misappreciation and misreading of evidence, misinterpretation of law or when the judgment is palpably wrong, perverse and suffers from manifest illegalities and infirmities.
Law does not require re-appreciation of evidence at the revisional stage. Similar view was taken by the Apex Court in the judgment delivered in Duli Chand Vs. Delhi Administration AIR 1975 SC 1960, wherein it was held that the High Court in revision was exercising supervisory jurisdiction of a restricted nature and, therefore, it would have been justified in refusing to re-appreciate the evidence for the purposes of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned Additional Sessions Judge was correct.
While further elaborating the scope of interference by the High Court in exercise of revisional jurisdiction, in case of Vimal Singh Vs. Khuman Singh and Anr. (1998) 7 SCC 223, Hon'ble Crl.Rev No.230 of 2006 6 Supreme Court held that the interference by the High Court in exercise of revisional jurisdiction is limited to the exceptional cases viz. (i) when it is found that order under revision suffers from glaring illegality or has caused miscarriage of justice; (ii) When it is found that trial court has no jurisdiction to try the case; (iii) Where trial court has illegally shut out the evidence which otherwise ought to have been considered and (iv) Where material evidence which clinches the issue has been overlooked. (AIR 1962 SC 1788 relied).
But on scrutiny of the impugned judgment, it transpires that the evidence has been duly appreciated in the right perspective and re-appreciation at this stage is not called for. The judgment does not suffer from any manifest illegality much less perversity warranting interference by this court.
(A.N.Jindal) 25.08.2011 Judge rp