Raghunath vs State Of Uttarakhand And Another

Sharad Kumar Sharma, J

This revision was taken up yesterday and it was posted today on the request of the learned counsel for the revisionist because he wanted to complete his instructions from the revisionist. Today, when the matter is taken up, the learned counsel for the revisionist submits that on the instructions, which he has now received from the revisionist, on that basis the learned counsel for the revisionist submits that the revisionist has rather expressed his anguish as to why the revision has not been pursued by him till now by procuring an order of acquittal and he submits that the manner in which the expression was given by the revisionist in fact, he has expressed his dissatisfaction, with the counsel in manner regards not to pursue with the criminal revision, any further and hence in such an eventuality, this Court is constrained to consider the revision in the absence of any argument being extended by the counsel for the revisionist. Since the matter being a criminal revision under Section 397 to be read with Section 401 of the Cr.P.C., it cannot be dismissed for want of prosecution on account of the lack of instructions to the counsel, this Court has got no other option except to proceed to decide the criminal revision itself on its own merit.

The revisionist herein is a convict of commission of offence under Section 138 of the Negotiable Instruments Act, 1881, whereby on registration of the Complaint Case Number 192 of 2009, Vinod Kumar v. Raghunath, the revisionist has been sentenced to undergo a simple imprisonment for a period of two weeks and a fine of Rs. 4,50,000/- was imposed upon him on account of the established commission of offence of dishonouring of the cheque, which he has admittedly established to have been issued by him in favour of complainant/respondent No. 2, which was dishonoured by the bank on its presentation before the financial institution on 02.12.2008. Consequently, resulting into a settled commission of an offence under Section 138 of the Negotiable Instruments Act of 1881.

The said order of conviction by the Court Judicial Magistrate, Haridwar vide its judgement dated 09.11.2010, was challenged in a Criminal Appeal, being Criminal Appeal Number 180 of 2010, Raghunath v. Vinod, and the Appellate Court too vide its judgement dated 18th January 2012, has affirmed the sentence and thereby has affirmed the penalty also as Rs. 4,50,000/-, out of which Rs. 4,40,000/- has been directed to be remitted to the complaint/respondent No. 2 and the remaining Rs. 10,000/- has been directed to be remitted to the State's coffers.

Heard the learned counsel for the respondent No. 2/ complainant, who is present before this Court. On considering the story, which has been dealt with by both the Courts below, it has revealed that there was certain transactions for purchase of land between the complainant/respondent No. 2 and the revisionist in relation to 3-0-0 bighas of land, which was settled to be dealt with by the complainant/respondent No. 2 with the revisionist. Consequently, in lieu of the said proposed transactions for sale of land, a sum of Rs. 4,400,000/- was said to have been remitted by the complainant/respondent No. 2, as an earnest money on 1st November 2008, but despite of there being settled term for sale of land, within which the deed was to be executed in relation to the land which was agreed to be sold and since there was a denial by the revisionist to proceed with the execution of the sale deed, the complaint/ respondent No. 2 has raised a demand for return back of Rs. 4,40,000/-, which was remitted by him as an advance earnest money on 1st November 2008.

Acceding to the request made by the complainant/ respondent No. 2, admittedly the revisionist is said to have issued a cheque bearing Cheque number 047498 dated 2nd December 2008, drawn in favour of the complainant/respondent No. 2, from his bank account, which was standing in branch of the State Bank of India at Ranipur, District Haridwar.

The complainant's case was that on presentation of the said cheque for its encashment on 02.12.2008 in his accounts, the same was reported by the bank, to be dishonoured by the bank on account of insufficiency of funds standing in the account, and consequently, the complainant has initiated proceedings after issuing notices to the revisionist on 20th January 2009, it was thereafter the complainant/respondent No. 2, had received the memo from the bank on 17th December 2008, informing him with regards to dishonour of check. The trial proceeded of the complaint case and statement under Section 313 of Cr.P.C. was recorded of the accused person, i.e. the revisionist, wherein he had tried to make an evasive reply pertaining to receipt of the notices which has been issued by the complainant/respondent No. 2, and further he tried to make an evasive denial with regards to the said transactions, which was agreed to be settled between the parties to convey the property in lieu of which it was contended by the complaint/respondent No. 2, that an earnest money was advanced to the revisionist.

In the aforesaid facts, after considering the evidence and rival contention, which was raised by the parties to the proceedings, the learned trial Court, after considering the fact that as far as the aspect pertaining to issuance of cheque, and with regards to the plea taken by the revisionist that the cheque book, from where the cheque was issued, had been lost somewhere and hence the cheque which was shown to have been issued in favour of the complainant/respondent No. 2 on 2nd December 2008, could not be said to be exact and true transaction, which was willingly carried by the revisionist and thus he contended that the cheque book which was lost by him, was misutilised by the complainant/respondent no. 2, by presenting it after filling the concocted figures in it for its encashment before the Bank.

The learned trial Court, on considering the evidence pertaining to the actual issuance of cheque in favour of complainant/respondent No. 2, and various ratios relied by it, as it has been dealt with by the learned trial Court that once it is established that the cheque was actually issued by the revisionist, the signature of which too tallied with the specimen signature of revisionist available with the bank, and later on it was dishonoured on its presentation, then subsequent story developed by the revisionist as an afterthought with regards to loss of cheque book and its purported misuse and which has been manufactured by the complainant/respondent No. 2, was not accepted by both the Courts below, resulting into his order of convection.

After having considered the findings and with regards to the initiation of the proceedings by issuance of notice, which was also a fact, which stood proved by both the Courts below, this Court is of the view that the order of conviction, as rendered by the both the Courts below does not suffer from any apparent error or mistake on the face of it, which calls for an interference in exercise of powers under Section 397 of the CrPC. Consequently, the sentence as imposed upon the revisionist, under Section 138 of the Negotiable Instruments Act is affirmed and the revision stands dismissed. The revisionist, who has been enlarged on bail by the order of the coordinate Bench of this Court's order dated 29th February 2012, is directed to surrender himself forthwith and to serve the remaining sentence as imposed by the Courts below and affirmed by today's judgement and also remit the total penalty as imposed by both the Courts, out of which sum of Rs. 10,000/- is being directed to be deposited in the State coffers.

Consequently, the revision lacks merit and the same is hereby dismissed. The impugned judgements passed by both the Courts below are hereby affirmed. However, there would be no order as to cost.