Pushap Raj vs Ramdhan

Ajay Mohan Goel, J.(Oral) - By way of this revision petition, the petitioner has challenged the judgment passed by the Court of learned Sessions Judge, Mandi in Criminal Appeal No. 07/2015 dated 01.12.2015, vide which learned appellate Court while dismissing the appeal so filed by the present petitioner, upheld the judgment of conviction and sentence imposed upon the present petitioner by the Court of learned Special Judicial Magistrate, Mandi in Complaint No. 1245-III/13, dated 28.02.2015/02.03.2015, whereby learned trial Court in a complaint filed under Section 138 of the Negotiable Instruments Act, convicted the present petitioner for commission of offence punishable under Section 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment for a period of one year under Section 138 of the Negotiable Instruments Act and also to pay compensation to the extent of cheque amount of Rs. 2,00,000/- as per the provisions of Section 357(3) of the Code of Criminal Procedure.

Brief facts necessary for the adjudication of this case are that a complaint was filed under Section 138 of the Negotiable Instruments Act by complainant Ramdhan against the petitioner/accused on the ground that accused was having friendly relations with him and as accused was in need of money, accordingly he borrowed an amount of Rs. 6,00,000/- (rupees six lac) from the complainant in the month of March, 2011 and for repayment of the said amount, in order to discharge his liability towards the complainant, accused issued three cheques, i.e. (i) cheque No. 922864 dated 12.12.2011 for an amount of Rs. 2,00,000/- , (ii) cheque No. 922865 dated 10.06.2012 for an amount of Rs. 2,00,000/- and (iii) cheque No. 922866 dated 10.12.2012 for an amount of Rs. 2,00,000/- drawn upon Indian Overseas Bank, Mandi Branch in favour of the complainant. Further as per the complainant, out of these three cheques, cheque No. 922866 dated 10.12.2012 Ex. CW1/A was presented by the complainant for its realization before Indian Overseas Bank, Branch Mandi on 13.02.2013, but the same was dishonoured for the reason "Insufficient Funds". Further as per the complainant, thereafter he issued a legal notice to accused intimating the factum of dishonour of the said cheque, however, even after issuance of the said legal notice, accused did not make any payment of the dishonoured cheque and in these circumstances complainant filed the complaint under the provisions of Section 138 of the Negotiable Instruments Act against the accused.

In order to prove his case, the complainant entered into the witness box as CW-1. He also proved the factum of dishonour of the cheque which was issued by the accused in his favour. The complainant also placed on record the cheque Ex. CW1/A, which was issued in his favour by the accused along with the memo Ex. CW1/B vide which the said cheque was dishonoured. He also produced on record the legal notice Ex. CW1/D which was issued to the accused along with the postal receipt Ex. CW1/E and Registered A.D. envelope Ex. CW1/F.

Respondent/accused entered the witness box as DW-1 and he deposed in the Court that he had been falsely implicated in the case and in fact nothing was due from him to the complainant. As per him, the cheque in issue was issued by him to the complainant as a security cheque on account of some money which he had taken from the complainant, which amount as per the accused stood repaid by him to the complainant along with interest. He further deposed that when he approached the complainant to obtain the said cheque back from the complainant, he was informed by the complainant that he had lost the same.

On the basis of evidence produced on record by the respective parties, learned trial Court held that it stood proved that money was taken by the accused from the complainant and cheque which was issued by him to the complainant in order to discharge his legal liability, was dishonoured by the Bank vide memo Ex. CW1/B. Learned trial Court also held that thereafter legal demand notice dated 02.03.2013 Ex. CW1/D was issued by the complainant for making the said payment in his favour within the stipulated period, but the accused failed to pay the same. Learned trial Court further held that documentary as well as oral evidence produced by the complainant demonstrated that all the provisions of Section 138 of the Negotiable Instruments Act were complied with and on these bases, it was held by the learned trial Court that the complainant had proved that the accused had committed an offence punishable under Section 138 of the Negotiable Instruments Act, and the learned trial Court accordingly convicted the accused.

Feeling aggrieved by the judgment so passed by the learned trial Court, accused preferred an appeal, which was dismissed by the learned appellate Court vide judgment dated 01.12.2015, vide which it was held by the learned appellate Court that there was neither any erroneousness nor any perversity in the well reasoned judgment which was passed by the learned trial Court.

While dismissing the appeal, learned appellate Court held that defence taken by the accused that he had paid the cheque amount to the complainant with interest was not proved by him. Learned appellate Court also held that it was clear from cheque Ex. CW1/A that the same was issued for an amount of Rs. 2,00,000/- by the accused in favour of the complainant on 10.12.2012, which was drawn at Indian Overseas Bank, Mandi Branch. Learned appellate Court also held that memo Ex. CW1/B dated 13.02.2013 proved that the cheque was dishonoured due to "Insufficient Funds" and legal notice Ex. CW1/D and postal receipt Ex. CW1/E proved that the same were issued to the accused through learned counsel on 02.03.2013. On these bases, it was held by the learned appellate Court that it stood proved that despite issuance of legal notice, petitioner had failed to make payment of the cheque amount and complainant had fully substantiated with documentary evidence the factum of accused having issued a cheque to him, which was subsequently dishonoured. Learned appellate Court also held that during the course of arguments, contradictions could not be pointed out in the testimony of the complainant to make the case doubtful nor any evidence was led by the petitioner to prove that he had not issued the cheque and that his signatures on the said cheque were indeed forged. On these bases, learned appellate Court while upholding the judgment of conviction passed by the learned trial Court, dismissed the appeal.

Feeling aggrieved, the accused has filed this revision petition.

I have heard the learned counsel for the parties and have also gone through the records of the case as well as the judgments passed by both the learned Courts below.

A perusal of the records demonstrate that the complainant had successfully demonstrated before the learned trial Court that cheque which was issued for an amount of Rs. 2,00,000/- in his favour by the accused was dishonoured by the bank concerned and even after the issuance of statutory legal notice, the amount of the cheque was not paid by the accused. The factum of the cheque having been dishonoured by the bank stood duly corroborated by record produced by the complainant. The accused could not probablise his defence that in fact the cheque in issue was not issued by him to the complainant in discharge of any liability as was being urged by the complainant, but the same was a blank cheque issued as security which was misused by the complainant. There is no complaint etc. filed by the accused against the complainant to this effect that a blank cheque issued by him has been misused by the complainant nor he has approached any competent authority or Court of law for initiating proceedings against the complainant on the ground that the complainant has forged his signatures etc. It is relevant to take note of the fact that the issuance of the cheque by the accused is admitted by him even in his statement which is recorded under Section 313 of the Code of Criminal Procedure. Therefore, in these circumstances, it cannot be said that the judgment of conviction passed against the complainant by the learned trial Court and upheld by the learned appellate Court is either perverse or the findings returned by both the Court below are not borne out from the records of the case.

It is well 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 the absence of error on a point of law, re-appreciate evidence and reverse a finding of law. It has been further held by the Hon''ble Supreme Court that the object of the revisional jurisdiction was to confer upon superior criminal Courts a kind of paternal or supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precaution or apparent harshness of treatment which has resulted in undeserved hardship to individuals.

It has been reiterated by the Hon''ble Supreme Court in Shlok Bhardwaj v. Runika Bhardwaj and others (2015) 2 Supreme Court Cases 721 that the scope of revisional jurisdiction of the High Court does not extend to re-appreciation of evidence.

It has been further reiterated by the Hon''ble Supreme Court in Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke and others (2015) 3 Supreme Court Cases 123:

"14. In the case before us, the learned Magistrate went through the entire records of the case, not limiting to the report filed by the police and has passed a reasoned order holding that it is not a fit case to take cognizance for the purpose of issuing process to the appellant. Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the revisional court is not justified in setting aside the order, merely because another view is possible. The revisional court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. Revisional power of the court under Sections 397 to 401 of Cr.PC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction.

Therefore, in view of what has been discussed above, I do not find any merit in the present revision petition. Thus, as the revision sans merit, the same is dismissed.