Raj Kumar Sethi vs Budhi Prakash

Umesh Chandra Dhyani, J.—The revisionist, by means of present Criminal Revision, seeks to set aside the order dated 29.03.2014, passed by Additional Sessions Judge 2nd, Rishikesh, District Dehradun in Criminal Appeal no. 138/2012, Raj Kumar Sethi vs. State of Uttarakhand & another and seeks to allow the application ''21 Ka'' moved by the revisionist u/s 391 Cr.P.C. in said criminal appeal.

A criminal complaint case u/s 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the Act) was instituted by the complainant (respondent no. 1 herein) against the accused (revisionist herein). The accused faced the trial. He was convicted of the offence punishable u/s 138 of the Act and was sentenced appropriately. Aggrieved against the same, a criminal appeal was preferred by him, which criminal appeal is pending before the learned Additional Sessions Judge 2nd, Rishikesh, District Dehradun. During the course of appeal, an application u/s 391 Cr.P.C. was filed on behalf of the accused-appellant. By filing an application (paper no. 21 Ka), a request was made by the accused-appellant that since he has obtained a certificate from the State Bank of India, therefore, he wants to file such documentary evidence as additional evidence in the lower court of appeal.

Objections (paper no. 24 Ka) were filed by respondent no. 1 on the same. It was objected that the certificate dated 20.02.2014 was already in possession of the accused-appellant, he had knowledge about the same and, therefore, the certificate dated 20.02.2014 of the State Bank of India cannot be permitted to be entertained u/s 391 Cr.P.C. One of the principal reasons assigned by the lower appellate court for rejection of such application was that the adjournments were sought by the appellant (revisionist herein) on 11 dates and, now, when the criminal appeal is listed for arguments, an application u/s 391 Cr.P.C. is filed by the accused-applicant for causing delay in disposal of such criminal appeal. Let us see as to whether such application u/s 391 Cr.P.C. moved by the accused-appellant before the lower appellate court was maintainable or not?

It will be worthwhile to reproduce Section 391 Cr.P.C. herein below for convenience:-

Appellate Court may take further evidence or direct it to be taken.-(1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate.

(2) When the additional evidence is taken by the Court of Session or the Magistrate, it or shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal.

(3) The accused or his pleader shall have the right to be present when the additional evidence is taken.

(4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry.

It was indicated in para 1 of the complaint filed by the respondent no. 1 that the accused issued a cheque no. 254187, dated 31.10.2010, drawn on the State Bank of India, of his savings bank account no. 10548902955, amounting to Rs. 3.50 Lakhs, in favour of the complainant. When the complainant presented the said cheque, the same was returned by the bank on 28.03.2011 with the endorsement of ''funds insufficient''. The information regarding dishonour of cheque was given to the accused through the counsel. The said notice was received by the accused on 08.04.2011. The accused was required to pay back Rs. 3.50 Lakhs to the complainant within 15 days of the receipt of the notice. Although, the accused received such notice on 08.04.2011, but, he did not pay Rs. 3.50 Lakhs to the complainant. Now, by means of additional evidence in the form of a certificate dated 20.02.2014 issued by the State Bank of India, the accused-appellant (revisionist herein) seeks to establish that cheque no. 254187 did not belong to him. He wants to contradict the case of the complainant by showing that cheque no. 254187 was never issued by him. The State Bank of India gave a certificate to the accused-revisionist on 20.02.2014 as follows:

To whomsoever it may concern

This is to state that the following cheque book, bearing cheque nos. 946741 to 946760 have been issued to Mr. Raj Kumar Sethi on A/c-30243581336, which is being maintained at SBI Virbhadra.

The undernoted signature of Mr. Raj Kumar Sethi is verified.

...

The certificate issued by the State Bank of India is, therefore, a relevant piece of evidence in the context of the decision of the criminal appeal preferred by the accused-appellant. The certificate thus issued by SBI to the revisionist may help him, it may not help him, the same may boomerang, but it is certainly a relevant piece of evidence for the purpose of deciding the criminal appeal pending before the Additional Sessions Judge.

The lower appellate court, therefore, ought to have allowed such application of the accused-appellant u/s 391 Cr.P.C. The lower appellate court, therefore, committed a mistake by not accepting the application u/s 391 Cr.P.C. of the accused-appellant.

As a consequence thereof, application u/s 482 Cr.P.C. is allowed. The order impugned is, therefore, set aside by directing the lower appellate court to allow application u/s 391 Cr.P.C., take such evidence itself and thereafter proceed to hear the criminal appeal preferred by the accused-appellant according to law. The criminal revision is, thus, disposed of with the direction to the lower appellate court as above.

Before paring with, this Court feels it''s bounden duty to say something regarding the conduct of the revisionist. It appears that he is in league with his wife in cheating people to whom they (both husband and wife) issue cheques. A supplementary affidavit is also filed on behalf of the revisionist to show that his wife Neelam Sethi is having SBI saving bank account no. 10548902955 (Annexure-1 to the supplementary affidavit) and a cheque book from serial no. 254176 to 254200 was issued to her by the State Bank of India, Main Branch, Railway Road, Rishikesh, District Dehradun. It was also certified by the bank that cheque no. 254187 is the part of aforesaid series. This Court requested the learned counsel for the revisionist to place the photocopy of the cheque issued by Neelam Sethi and her husband Raj Kumar Sethi for perusal of this Court. Both the cheques were placed by learned counsel before this Court. On comparison with naked eyes, it was revealed that Raj Kumar Sethi issued the cheque from the cheque book of his wife and Neelam Sethi issued cheque from the cheque book of her husband Raj Kumar Sethi. In other words, the husband and wife used the cheque books of their spouses, put their signatures on the same and issued cheques to the people with whom they transacted. The same was a tactic to befool and cheat the innocent people, in whose contact they came and transacted. Raj Kumar Sethi will take a plea that he did not issue any cheque from his cheque book and his wife Neelam Sethi will also take a plea that she did not issue any cheque from her cheque book. This tactic probably may work, or may not work, in cases u/s 138 of the Act, but the same will not help them (Neelam Sethi and Raj Kumar Sethi) from facing the trial for the offence of cheating and forgery under the Indian Penal Code, unless it is shown that they are the joint account holders, authorized to issue such cheques, which does not appear to be the case, for, otherwise, they would not have placed such certificates before this Court.

The lower appellate court, however, shall not be guided by the observations made by this Court herein above in para 9.