Himachal Pradesh High Court
Dalbir Singh vs Rajinder Singh Prop. Of M/S Gurjot ... on 31 October, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No.297 of 2016.
.
Date of decision: 31st October, 2018.
Dalbir Singh .......Petitioner.
Versus
Rajinder Singh Prop. of M/s Gurjot Automobiles Chowkiwala ......Respondent.
Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 No
For the Petitioner : Mr. Balram Sharma, Advocate, as Legal
Aid Counsel.
For the Respondent : Mr. A.S.Rana, Advocate.
Tarlok Singh Chauhan, Judge (Oral).
The petitioner stands convicted and sentenced by the learned trial Magistrate to undergo simple imprisonment for six months and pay a sum of Rs.1,50,000/- as compensation to the complainant for having committed an offence punishable under Section 138 of the Negotiable Instruments Act (for short 'Act').
2. The petitioner unsuccessfully assailed the conviction and sentence passed by the learned Magistrate before the learned Sessions Judge, Solan, constraining him to file the instant revision.
1Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 03/11/2018 22:55:51 :::HCHP 2 2
3. It is vehemently argued by Shri Balram Sharma, Advocate, for the petitioner that the findings recorded by the learned .
Courts below are perverse inasmuch as they have relied upon the untrustworthy evidence led by the complainant-respondent and, therefore, judgments should be set aside. In addition thereto, he would argue that the cheque was issued by the petitioner under compromise and, therefore, the same cannot be considered to be a new liability so as to furnish a cause of action in favour of the respondent and in support of his contention he would rely upon the judgment of the Hon'ble Supreme Court in Lalit Kumar Sharma and another versus State of Uttar Pradesh and another, (2008) 5 SCC 638.
4. I have heard the learned counsel for the parties and have also gone through the records of the case.
5. The revisionary jurisdiction of this Court under Section 397 Cr.P.C. is extremely limited and this Court would only interfere in case the petitioners have been convicted and sentenced without examining the material placed on record with a view to ascertain that the judgments so rendered by the learned Courts below are not perverse and are based on the correct appreciation of evidence on record. This Court would definitely interfere in case it comes to the conclusion that there is a failure of justice and misuse of judicial ::: Downloaded on - 03/11/2018 22:55:51 :::HCHP 3 3 mechanism or procedure or where the sentence awarded is not correct. After all, it is the salutary duty of this Court to prevent the .
abuse of justice or miscarriage of justice or/and correct irregularities, incorrectness committed by the inferior Criminal Court in its judicial process or illegality of sentence or order. This Court has very limited revisionary jurisdiction as held by this Court in Criminal Revision No. 50 of 2011, titled as Rajinder Singh vs. State of Himachal Pradesh, decided on 13.09.2017, wherein the scope of criminal revision has been delineated in the following manner:-
"12. In Amur Chand Agrawal vs. Shanti Bose and another, AIR 1973 SC 799, the Hon'ble Supreme Court has held that the revisional jurisdiction should normally be exercised in exceptional cases when there is a glaring defect in the proceedings or there is a manifest error of point of law and consequently there has been a flagrant miscarriage of justice.
13. In State of Orissa vs. Nakula Sahu, AIR 1979, SC 663, the Hon'ble Supreme Court after placing reliance upon a large number of its earlier judgments including Akalu Aheer vs. Ramdeo Ram, AIR 1973, SC 2145, held that the power, being discretionary, has to be exercised judiciously and not arbitrarily or lightly. The Court held that "judicial discretion, as has often been said, means a discretion which is informed by tradition methodolised by analogy and discipline by system".::: Downloaded on - 03/11/2018 22:55:51 :::HCHP 4 4
14. In Pathumma and another vs. Muhammad, AIR 1986, SC 1436, the Hon'ble Apex Court observed that High Court .
"committed an error in making a re-assessment of the evidence" as in its revisional jurisdiction it was "not justified in substituting its own view for that of the learned Magistrate on a question of fact".
15. In Bansi Lal and others vs. Laxman Singh, AIR 1986 SC 1721, the legal position regarding scope of revisional jurisdiction was summed up by the Hon'ble Supreme Court in the following terms:
"It is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial court, r that the High Court is empowered to set aside the order of the acquittal and direct a re-trial of the acquitted accused. From the very nature of this power it should be exercised sparingly and with great care and caution. The mere circumstance that a finding of fact recorded by the trial court may in the opinion of the High Court be wrong, will not justify the setting aside of the order of acquittal and directing a re-trial of the accused. Even in an appeal, the Appellate Court would not be justified in interfering with an acquittal merely because it was inclined to differ from the findings of fact reached by the trial Court on the appreciation of the evidence. The revisional power of the High Court is much more restricted in its scope."
16. In Ramu @ Ram Kumar vs. Jagannath, AIR 1991, SC 26, Hon'ble Supreme court cautioned the revisional Courts not to lightly exercise the revisional jurisdiction at the behest of a private complainant.
17. In State of Karnataka vs. Appu Balu, AIR 1993, SC 1126 = II (1992) CCR 458 (SC), the Hon'ble Supreme Court held that in exercise of the revisional powers, it is not permissible for the Court to re-appreciate the evidence.
18. In Ramu alias Ram Kumar and others vs. Jagannath AIR 1994 SC 26 the Hon'ble Supreme Court held as under:
::: Downloaded on - 03/11/2018 22:55:51 :::HCHP 5 5"It is well settled that the revisional jurisdiction conferred on the High Court should not be lightly exercised particularly .
when it was invoked by a private complaint."
19. In Kaptan Singh and others vs. State of M.P. and another, AIR 1997 SC 2485 = II (1997) CCR 109 (SC), the Hon'ble Supreme Court considered a large number of its earlier judgments, particularly Chinnaswami vs. State of Andhra Pradesh, AIR 1962 SC 1788 ; Mahendra Pratap vs. Sarju Singh, AIR 1968, SC 707; P.N. G. Raju vs. B.P. Appadu, AIR 1975, SC 1854 and Ayodhya vs. Ram Sumer Singh, AIR 1981 SC 1415 and held that revisional power can be exercised only when "there exists a manifest illegality in the order or there is a grave miscarriage of justice".
20. In State of Kerala vs. Puttumana Illath Jathavedan Namboodiri (1999) 2 SCC 452, the Hon'ble Supreme Court held as under:
"In Its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of Supervisory Jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second Appellate Jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice."
21. In State of A.P. vs. Rajagopala Rao (2000) 10 SCC 338, the Hon'ble Supreme Court held as under:
::: Downloaded on - 03/11/2018 22:55:51 :::HCHP 6 6"The High Court in exercise of its revisional power has upset the concurrent findings of the Courts below without .
in any way considering the evidence on the record and without indicating as to in what manner the courts below had erred in coming to the conclusion which they had arrived at. The judgment of the High Court contains no reasons whatsoever which would indicate as to why the revision filed by the respondent was allowed. In a sense, it is a non-speaking judgment."
6. In order to see whether there is any perversity in the judgments and findings recorded by the learned Courts below, it would be necessary to look into the complaint as also the evidence that has come on record.
7. In the complaint filed by the respondent, it was alleged that the petitioner had purchased a tractor bearing registration No. HP-12-4433 from the respondent for Rs.1,35,000/-, but the petitioner failed to pay the said amount to the respondent, constraining him to file suit for recovery. In the suit, a compromise was arrived at whereby the petitioner promised to pay the aforesaid amount of Rs.1,35,000/- along with litigation expenses of Rs.15,000/- and thereafter the respondent withdrew the suit on 09.02.2012. It was further alleged that in order to discharge such liability, the petitioner issued a post dated cheque for Rs.1,50,000/- dated 19.03.2012 drawn at State Bank of Patiala, Nalagarh Branch, District Solan in favour of the respondent, which cheque on presentation was ::: Downloaded on - 03/11/2018 22:55:51 :::HCHP 7 7 returned as unpaid for want of "insufficient funds" in the account of the petitioner vide memo dated 21.03.2012. The respondent .
thereafter intimated the petitioner regarding the dishonour of cheque and thereafter petitioner approached him and assured to make arrangement of the cheque amount up to 12.06.2012 which request was acceded to by the respondent. It was further alleged that thereafter the respondent deposited the cheque with his bankers again but even this time the same was returned as unpaid for want of "insufficient funds" vide memo dated 14.06.2012. The respondent thereafter issued a notice under Section 138 of the Act to the petitioner on 21.06.2012 informing him about dishonour of the cheque and also raising the demand of the cheque amount. The notice was duly served upon the petitioner on 28.06.2012, but he failed to pay the cheque amount within the stipulated period.
8. In order to prove his case, the respondent appeared as CW-1 and in his statement duly supported/corroborated the averments made in the complaint. Even though, the respondent was cross-examined at length, but nothing contrary could be elicited therefrom. He denied that petitioner had paid Rs.1,35,000/- to him in cash on 09.02.2012 and further denied that three cheques were issued by the petitioner in his favour as security. He further denied that the petitioner did not owe any liability to make the payment of ::: Downloaded on - 03/11/2018 22:55:51 :::HCHP 8 8 the cheque amount to him. The statement of the respondent is duly corroborated by the documents that have been brought on record by .
him.
9. On the other hand, the petitioner did not examine any witness. In his statement under Section 313 Cr.P.C., the petitioner denied the issuance of the cheque in question or the signatures thereupon, but his simple defence was that the cheque had been issued in favour of the respondent as a security in order to encash the freight charges as the petitioner was a commission agent.
However, such defence has not been substantiated or corroborated by any material on record. Therefore, no infirmity much less any perversity can be found with the judgments of conviction and sentence as passed by the learned Courts below.
10. As regards the judgment of the Hon'ble Supreme Court in Lalit Kumar Sharma's case (supra), upon which heavy reliance has been placed by the learned counsel for the petitioner, is totally misconceived. The facts therein were that two Directors of the company had taken a loan of Rs.5,00,000/- and issued two cheques of Rs.3,00,000/- and Rs.2,00,000/-, respectively in favour of the respondent therein. On presentation, they were returned unpaid with the remarks "insufficient funds". A complaint petition was thereafter filed by the complainant against two Directors. Both the Directors ::: Downloaded on - 03/11/2018 22:55:51 :::HCHP 9 9 claimed to have resigned from the post of directorship shortly after the issuance of the cheques. During the pendency of the said .
complaint, an endeavour was made to resolve the dispute and differences between the parties and thereafter an agreement was entered by and between the parties in terms whereof, it was agreed that if a cheque of Rs.5,02,050/- is issued, then the complaint petition would be withdrawn. Consequently, one of the Directors issued a cheque for the said sum on 29.07.2000 which on presentation was returned on 29.01.2001 with the remark "insufficient fund".
11. It was in this background that the Hon'ble Supreme Court held that the second cheque that was issued by one of the Directors for the purpose of arriving at a settlement was not issued in discharge of the debt or liability of the company of which the appellants therein were said to be Directors. It was further held that there was only one transaction between the earlier Directors of the company and the complainant for which offence the Directors had already been punished. Whereas, this is not the fact situation obtaining in this case because neither has the petitioner been punished nor there is any subsequent cheque issued by him. He is only being prosecuted for the lawful liability that has been duly acknowledged by him while issuing the cheque in question.
::: Downloaded on - 03/11/2018 22:55:51 :::HCHP 10 112. Shri Balram Sharma, learned counsel for the petitioner, would vehemently argue that no complaint was maintainable on the .
basis of the presentation of the cheque for the second time.
13. As regards the question of maintainability of the complaint on the basis of the cheque presented for the second time, but within six months, this issue is no longer res integra in view of three Hon'ble Judges' bench decision of the Hon'ble Supreme Court in MSR Leathers versus S.Palaniappan and another, (2013) 1 SCC 177 wherein the earlier decision in Sadanandan Bhadran versus Madhavan Sunil Kumar, (1998) 6 SCC 514 was over-ruled and it was held that prosecution based upon second or successive dishonour of the cheques is also permissible so long as it satisfies the requirements stipulated in the proviso to Section 138 of the Negotiable Instruments Act.
14. In view of the aforesaid discussion, I find no merit in this revision petition and the same is accordingly dismissed. Pending application, if any, also stands disposed of.
31st October, 2018. (Tarlok Singh Chauhan) (krt) Judge ::: Downloaded on - 03/11/2018 22:55:51 :::HCHP