Bache Singh Adhikari vs State Of Uttarakhand & Another

Sharad Kumar Sharma, J

This revision has been preferred by the revisionist questioning the judgment dated 07.11.2017 as passed by the Additional District and Session Judge, Ramnagar, District Nainital, in Criminal Appeal No. 28 of 2016 'Bache Singh vs. State & Another', whereby, the Appellate Court while dismissing the appeal has affirmed the judgment of the learned Trial Court dated 30.01.2016, whereby, the revisionist has been convicted for commission of the offence under Section 138 of the Negotiable Instruments Act and he has been directed to undergo one year rigorous imprisonment and a fine of Rs. 4,20,000/- has been imposed upon him.

When the impugned order was put to challenge before this Court in the revision the Coordinate Bench of this Court by an order dated 17.11.2017 has stayed the extension of warrants issued against the revisionist and simultaneously a direction was also issued by the subsequent order on 21.11.2017, directing the revisionist to deposit a sum of Rs. 1,80,000/- out of the total amount of penalty, which was imposed upon him and it is shown by the office report dated 22.11.2017,s that the draft for the said amount in compliance of the order dated 21.11.2017 has been deposited by the revisionist in the Registry.

In the subsequent proceedings, which was held before this Court, another statement was made by the revisionist, through his counsel, that apart from the deposit of Rs. 1,80,000/-, further a deposit of Rs. 63,000/- has been made by him in addition to the aforesaid amount. However, when the matter was taken up on 25.08.2019 learned counsel for the revisionist was unable to assist the court for the reason that the revisionist after getting the interim order on 17.11.2017 is not in contact with his counsel and due to which he was slightly incapacitated to argue the matter.

Consequently, looking to the aforesaid situation the Court had passed an order on 05.08.2019, directing the S.H.O. Thana Ramnagar, Nainital, to produce Mr. Bache Singh on 26.08.2019, but the said direction was not complied with. Subsequently, yet another direction was issued on 26.08.2019 to the S.H.O. providing 48 hours' time to the S.H.O., Ramnagar, Nainital, to produce the revisionist before this Court, failing which he was directed to appear in person. When the proceedings was taken up today, the S.H.O., Ramnagar, District Nainital, Mr. Kashmir Singh, has appeared in person and had submitted a report through the Government Advocate to the effect that after making investigation and as per the report, which was submitted by the Pradhan on 22.08.2019, it is reported by the Pradhan of the said village that the revisionist is no more residing in the village in question nor his whereabouts are known to him. Even as per the report, which was submitted by the S.H.O. to the office of the Joint Director (Legal) in the State Government's Advocates office, it has been reported that the revisionist is not residing in the village in question and consequently, he could not be taken in custody and produced before this Court in compliance of its orders passed in the instant revision.

In such an eventuality, when the revisionist is deliberately avoiding the proceedings of the court and particularly when he himself has preferred the revision against the judgment of conviction in the proceedings under Section 138, this Court has got no option except to proceed to decide the revision itself on it merit.

The revision has been heard by this Court. As per the facts, which has emerged for consideration before this Court is that the Criminal Case No. 610 of 2014 'Pramod Satyawali vs. Bache Singh Adhikari' was initiated on the complaint preferred by the respondent no. 2 herein, whereby, it is contended that since the revisionist and respondent nos. 2 & 3 were having a close relationship hence, taking advantage of it certain financial assistance was extended by the complainant/respondent on the request of the revisionist and a financial assistance, which is said to be extended was to the tune of Rs. 4 lakhs, which was extended by the complainant/respondent no. 2 to the revisionist.

When despite of the expiry of time of two months, which was fixed for returning of the money, when the same was not returned, the revisionist is said to have issued a Cheque No. 476689 of an amount of Rs. 4 lakhs dated 15.05.2014, drawn on Oriental Bank of Commerce, Ramnagar Branch, Nainital. As per the complainant's case it is that when the said cheque was produced by the complainant in his account to be encashed, the same was returned by the Bank with an information dated 14.06.2014, to the effect that the said cheque cannot be honoured and cleaned by the Bank on account of the insufficient amount standing in the said amount against which the cheque was drawn. After the receipt of the said information from the Bank, the respondent no. 2 has issued a legal notice under the Negotiable Instruments Act on 11.07.2014, through his advocate apart from giving the information with regards to the dishonour of cheque on 14.06.2014, a request was also made that the amount thus due to be paid by the revisionist may be remitted to him.

In the proceedings held before the Court of Judicial Magistrate, Ramnagar, Nainital, the revisionist was provided with the relevant documents and the statement was recorded of the revisionist under Section 251 of the Cr.P.C. The learned Trial Court after examining the witnesses produced by the prosecution namely PW1 Pramod Satyawali and PW2 Sumit Kumar, apart from it the various other documentary evidences were also produced on record pertaining to the receipt of deposit of cheque in the bank. The information supplied by the bank of the complainant with regards to the dishonour of cheque that was exhibit 3. The complainant/respondent no. 2 has produced the exhibit 4, which was a legal notice issued by him through his advocate to the revisionist giving an information with regards to the dishonour of the cheque, which he has produced before the bank of the complainant for being encashed and also in support thereto, he has placed on record the postal receipts, A.D. card showing the fact that the notice, which was issued by him, to the revisionist on 11.07.2014 was duly served, and despite of the service of the notice the amount, which was due to be paid by the revisionist as given by him through Cheque dated 15.05.2014, but despite of having received the said legal notice no response was extended and consequently, before the Trial Court in the proceedings recorded the statement, which has been recorded under Section 313 of Cr.P.C. a finding has been recorded that the revisionist, who was an accused before the Trial Court has rather "declined to produce any evidence" in his favour and made a vague response to the evidence of the prosecution. Hence, ultimately in the absence of there being any evidence adduced by the revisionist in support of his contention or defense, the learned Trial Court of Judicial Magistrate, Ramnagar, after considering the totality of the evidence and the statements recorded by the prosecution witnesses and the fact that the complainant/respondent no. 2 has complied with the conditions of issuance of a prior notice prior for the initiation of the proceedings by registering a complaint under Section 138, the Court after after appreciating the fact, which was adduced by the prosecution or oral testimony of the witnesses produced by him and the documentary evidence, when it was appreciated by the Judicial Magistrate it undoubtedly leads to a logical conclusion that the cheque, which was admittedly issued by the revisionist was in fact dishonoured in view of the communication, which was made by the Bank and further more when the notice issued by the complainant on 11.07.2014 is a fact, which was admitted by the revisionist and no evidence to the contrary, was led by him before the learned Trial Court to show that the notice as issued on 11.07.2014 was not received by him or the propriety of notice itself was never questioned.

Apart from it, the Trial Court has also recorded a finding to the effect that in view of the pleadings, which was raised by the accused revisionist before the Court below, it rather fortifies, the fact that the accused revisionist has issued a cheque and the said fact rather stands admitted by him and, hence, a logical conclusion could be drawn in view of the provisions contained under Section 139 of the Negotiable Instruments Act that admittedly the cheque, which was issued by the revisionist was dishonoured and no action has been taken by him after the receipt of the notice and there is nothing on record as such of any action taken by the revisionist. The learned Court of Judicial Magistrate by the impugned judgment dated 30.01.2016 has passed an order of conviction, whereby, the revisionist has been directed to undergo a sentence of one year rigorous imprisonment and a penalty of Rs. 4,20,000/- has been imposed out of which Rs. 4,10,000/- was to be remitted to the complainant and balance Rs. 10,000/- was to be deposited in the State coffer.

Being aggrieved against the said order the revisionist has preferred an appeal being Criminal Appeal No. 28 of 2016 'Bache Singh vs. State of Uttarakhand & Another'. The Appellate Court too after reappreciating the evidence on record and after scrutinizing that there had not chanced any procedural flaw in drawing the proceedings of complaint case under Section 138 of the Negotiable Instruments Act and the inferences, which has been drawn by the learned Trial Court while passing the order of conviction has upheld the judgment of the learned Trial Court dated 30.01.2016 and the appeal thus preferred by the revisionist was dismissed and the sureties, which was extended in support of the bail granted during the pendency of the bail was discharged.

It is against these two judgments of conviction against which the present revision has been filed and initially there was an interim order, whereby, the execution of the warrant was kept in abeyance by this Court by an order dated 17.11.2017, but later on as per the statement made by the learned counsel for the revisionist, he himself submitted that the revisionist has not contacted his counsel, so as to provide him the latest status of the proceedings and the action, which he has taken in pursuance to the orders passed by this Court and, hence, the counsel for the revisionist was incapacitated to argue the matter in the absence of there being any instruction from the revisionist.

Though despite of beset efforts made by this Court by passing the order directing the S.H.O. to produce the corpus of revisionist, but he is reported to be missing and he is not traceable from the place where he resided. In such a contingency, this Court after considering the propriety and the findings recorded by both the courts below is of the view that looking to the appreciation of evidence made by the learned Trial Court and which subsequently stood affirmed by the learned Appellate Court the logical conclusion, which has been drawn particularly by the Trial Court after appreciating the evidence and also after considering the fact that the revisionist has not led any evidence to the contrary in his defense has passed the order of conviction.

The said fact since stands affirmed by the learned Appellate Court after reappreciating the entire evidence, which is not being reproduced herein, because the finding in relation thereto has already been observed in the above paragraph.

Consequently, this Court does not find any merit in the revision and the revision is dismissed. The Magistrate concerned is directed to ensure that the revisionist is taken in custody and is called upon to serve the sentence, which has been affirmed by this Court by today's judgment. All interim orders passed stand vacated and amount deposited stands forfeited in favour of the complainant/respondent no.2. The Revision is, accordingly, dismissed.

Personal appearance of the S.H.O. is exempted henceforth.