Himachal Pradesh High Court
Deepak Kumar vs Krishna Nand And Another on 20 August, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.R. No. 148 of 2014.
Reserved on: 04.08.2016.
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Decided on: 20.08.2016.
Deepak Kumar ....Petitioner.
Versus
Krishna Nand and another ... Respondents.
___________________________________________________________ of Coram The Hon'ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 No. rt For the petitioner. : Mr. Ashok Tyagi, Advocate, vice Mr. Sanjeev Kumar Suri, Advocate.
For respondent No. 1. : None.
For respondent No. 2 : Mr. V.S. Chauhan, Addl. AG with Ms. Parul Negi, Dy. AG.
Ajay Mohan Goel, J By way of the present revision petition, the petitioner has challenged the judgment passed by the learned Sessions Judge, Sirmaur District at Nahan, dated 19.04.2014 in Cr. Appeal No. 60-Cr.A/10 of 2013/2012, vide which, learned Appellate Court while dismissing the appeal filed by the present petitioner upheld the judgment passed by the court of learned Chief Judicial Magistrate, Sirmaur at Nahan 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:02:49 :::HCHP 2in Criminal Case No. 57/3 of 2010/09 dated 26.05.2012, whereby learned trial Court had convicted the accused for commission of offence punishable under Section 138 of the .
Negotiable Instruments Act (for short 'NI Act') and sentenced him to undergo simple imprisonment for a period of six months and also to pay fine of Rs. 5,000/- alongwith a direction to pay compensation of Rs. 75,000/- to the of complainant.
2. Brief facts necessary for the adjudication of the present rt case are that the respondent/complainant (hereinafter referred to as the 'complainant') filed a complaint against the petitioner-accused under Section 138 of the NI Act on the ground that the complainant was having very cordial relations with accused and on the requirement of the accused, the complainant gave a friendly loan of Rs. 60,000/-
to the accused. In order to meet the said legally and enforceable liability, accused issued cheque dated 26.12.2008 drawn on Bank of India Jagadhri bearing No. 014222 for an amount of Rs. 60,000/- in his favour. Said cheque was deposited by the complainant for its encashment in Punjab National Bank, Nahan but the same was returned back to the complainant vide memo dated 11.04.2009 on the ground "Account Closed". Thereafter, the complainant got issued ::: Downloaded on - 15/04/2017 21:02:49 :::HCHP 3 demand notice upon the accused through his counsel. As the accused failed to make the payment of the cheque amount within the stipulated time, complainant filed the complaint .
against the accused. After the complainant led preliminary evidence, as a prima-facie case was found against the accused, learned trial Court issued summons to him. Notice of accusation was put to the accused to which he pleaded not of guilty and claimed trial.
3. In order to prove his case, the complainant rt entered the witness box as CW-3 and also examined Satya Ram, Record-keeper of Punjab National Bank, Nahan as CW-
1 and Satender Pal, Clerk of Bank of India, Jagadhri as CW-2.
No evidence was led by the accused in his defence. On the basis of material on record produced by the complainant, learned trial Court held that it stood proved that the accused had issued cheque Exhibit C-1 in favour of complainant in order to discharge his legally enforceable liability but the same was dishonoured. Learned trial Court further held that accused thereafter on being asked by the complainant vide notice Exhibit C-5 to make the payment of cheque Exhibit C-
1 failed to repay the same and thus the accused was liable to be punished for the breach committed by him. Accordingly, the accused was convicted by the learned trial Court. In ::: Downloaded on - 15/04/2017 21:02:49 :::HCHP 4 appeal, learned Appellate Court, while upholding the conviction of the accused under Section 138 of the NI Act set aside the order passed by the learned trial Court directing the .
accused to pay compensation of Rs. 75,000/- to the complainant.
4. I have heard the learned counsel for the parties and also gone through the records of the case.
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5. The factum of the present petitioner having issued cheque Exhibit C-1 in favour of the complainant to discharge rt his liability which he owed to the complainant stands adjudicated upon in favour of the complainant and against the accused by both the learned Courts below. In his statement recorded under Section 313 of Code of Criminal Procedure (for short 'Cr.P.C.'), the defence taken by the accused is that the case has been instituted by the complainant against him to cheat him. His further defence was that the complainant had misused some old cheque of his.
6. Whereas the complainant proved his case before the learned trial Court by entering the witness box as CW-3 and by demonstrating from the testimony of CW-1 and CW-2 that the cheque which had been issued by the accused in his favour was dishonoured. No material was produced on record ::: Downloaded on - 15/04/2017 21:02:49 :::HCHP 5 by the defendant to establish that either he did not owe anything to the complainant or that the complaint was filed to cheat him and that the complainant in fact has misused some .
old cheque of the accused. Admittedly, the accused has not filed any case of cheating etc. against the complainant.
7. During the course of arguments, learned counsel for the petitioner could not point out as to what was the of perversity with the judgments passed by the learned Courts below or what was the infirmity in the findings which had rt been returned by both the learned Courts below. The contention of the learned counsel for the petitioner that accused owed nothing to the complainant could not be substantiated by him. A perusal of the judgments passed by the learned Courts below demonstrates that the findings returned by the learned Courts below are passed on appreciation of material produced on record by the complainant and in my considered view, the findings so returned by both the learned Courts below are neither perverse nor it can be said that the same are not borne out from the records of the case.
8. In view of what has been discussed above, I am of the opinion that the judgments passed by both the learned Courts below do not call for any interference. It cannot be ::: Downloaded on - 15/04/2017 21:02:49 :::HCHP 6 said that the findings returned by both the learned Courts below are either perverse or not borne out from the material on record.
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9. It is settled law that the jurisdiction of High Court in revision is severely restricted and it cannot embark upon re-appreciation of evidence. The High Court in revision cannot in absence of error on a point of law, re-appreciate of evidence and reverse a finding of law.
10. This Court has to exercise its revisional powers rt sparingly. Though, this Court is not required to act as a Court of appeal, however, at the same time it is the duty of the Court to correct manifest illegality resulting in gross miscarriage of justice. However, I do not find any manifest illegality with the judgments passed by the learned Courts below in the present case.
In view of the above discussion, I am of the considered view that there is neither any perversity nor any infirmity with the judgments passed by the learned Courts below. In this view of the matter, the present revision petition is dismissed being devoid of any merit.
(Ajay Mohan Goel) Judge 20th August, 2016.
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