Nayankumar Hasmukhalal Nariyewala v. State of Gujarat
2012-12-24
N.V.ANJARIA
body2012
DigiLaw.ai
ORDER : N.V. ANJARIA, J. 1. In view of consent of learned advocate Ms.Kruti M. Shah for the applicant and learned advocate Mr.Apurva S. Vakil for respondent No.2 and with concurrence of learned Additional Public Prosecutor Ms.C.M. Shah for respondent No.1, the present revision on admission board is taken up for final disposal today itself. 2. Therefore, Rule. Learned Additional Public Prosecutor waives service of notice of Rule on behalf of respondent No.1. Learned advocate Mr.Vakil waives service of notice of Rule on behalf of respondent No. 2. 3. The facts giving rise to the present revision application may be summarized. Petitioner-revisionist is the original complainant, who filed a private complaint before the Court of learned Judicial Magistrate First Class, Surat against respondent No.2 for the offence under Section 138 of the Negotiable Instruments Act, 1882. The same was registered as private criminal complaint No.15553 of 2010 before the Court of learned 8th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Surat. 3.1 As per the case in the complaint, respondent No. 2 was engaged in the business of cosmetics and was a relative of the complainant. He demanded money stating that the finance was needed because he had incurred huge debt by investing in the cosmetic companies. The complainant lent a sum of Rs.26,50,300/- to respondent No. 2 during 01.04.2008 to 31.03.2009, and thereafter further sum of Rs.01,24,254/-. According to the complainant, Rs.10,150/- was repaid. It is the further case that respondent No.2 executed two promissory notes on 31.03.2009 and 11.09.2009 for the sum of Rs.26,50,000/- and Rs.01,24,554/-. 3.2 It was further stated that respondent No.2, towards the above amount advanced, gave cheque No.189664 dated 31.12.2009 of ICICI Bank for Rs.27,64,350/-. Another cheque for Rs.15,36,000/- dated 31.12.2009 on ICICI Bank was also drawn. Both the cheques, when deposited in the Bank by the complainant, were bounced on 08.01.2010. Therefore, another cheque of Rs.43,00,000/- was drawn by respondent No.2, which was also returned unpaid. Statutory notice was issued by the complainant. 3.3 Complaint under Section 138 of the N.I. Act came to be filed against respondent No.2-accused in respect of the above cheque for Rs.43,00,000/- which was returned. The trial took place.
Therefore, another cheque of Rs.43,00,000/- was drawn by respondent No.2, which was also returned unpaid. Statutory notice was issued by the complainant. 3.3 Complaint under Section 138 of the N.I. Act came to be filed against respondent No.2-accused in respect of the above cheque for Rs.43,00,000/- which was returned. The trial took place. The Trial Court by judgment and order dated 17.01.2012 convicted respondent No.2-accused for the offence under Section 138 of the N.I. Act and sentenced him to undergo six months simple imprisonment and imposed fine of Rs.10,000/- and in default of payment of fine, awarded further sentence for one month simple imprisonment. 3.3 Against the aforesaid judgment by the Trial Court, present petitioner as well as respondent No.2 preferred Criminal Appeal Nos.17 of 2012 and 22 of 2012 respectively before the Court of Additional Sessions Judge, Surat. The Appeal by the original accused was against conviction and sentence whereas the complainants Appeal was for enhancement of sentence and for payment of compensation. The complainant appealed against to submit that the sentence awarded was inadequate and further that the learned Trial Judge ought to have awarded suitable compensation also. 3.4 By judgment and order dated 18.09.2012, learned Additional Sessions Judge, Surat, dismissed both the Appeals. While the original accused has not challenged the judgment and order of the learned Sessions Judge dismissing his Appeal, the original complainant-revisionist seeks to challenge the aforementioned judgment and order of the learned Sessions Judge in so far as it dismissed his Appeal for enhancement and compensation. 4. Heard learned advocates for the respective-parties. 4.1 Learned advocate for the petitioner submitted that in the common judgment, no reasons are provided for not granting his prayer for enhancement of sentence and for compensation. It was submitted that on the ground that the order relating to his Appeal being unreasoned order, the same is bad in law. She urged various grounds to contend that the sentence is required to be enhanced and the compensation is also required to be ordered. Learned advocate for the respondent No.2 on the other hand submitted that his Appeal was already dismissed for the reasons recorded in the judgment and since no case was made out by the complainant for enhancement of sentence, his Appeal is also rightly dismissed.
Learned advocate for the respondent No.2 on the other hand submitted that his Appeal was already dismissed for the reasons recorded in the judgment and since no case was made out by the complainant for enhancement of sentence, his Appeal is also rightly dismissed. It was submitted that when the lower Appellate Court upheld the conviction and sentence passed by the Trial Court and Appeal for enhancement was dismissed, it was implied that the lower Appellate Court was satisfied with the sentence awarded. 5. Having gone through the common judgment of the lower Appellate Court, whereby both the Appeals came to be dismissed as above, it is seen that the lower Appellate Court framed two issues in the process of deciding the Appeal of the accused. Firstly, whether the cheque was drawn in discharge of legally enforceable debt and secondly, whether the accused could successfully rebut the presumption under Section 139 of the Act. After due discussion and reasons, learned Additional Sessions Judge answered the issues in the affirmative and negative respectively, and consequentially the Appeal of the accused was dismissed for the reasons recorded in the common judgment. 5.1 However, as far as the Appeal of the original complainant is concerned, the learned Additional Sessions Judge recorded only the following lines in paragraph 11 of the judgment: "so far as the Appeal filed by the complainant for enhancement is concerned, no case is made out by the complainant for enhancement." 5.2 It is not necessary to go into the submissions of respective learned advocates on merits with reference to the case for enhancement of the sentence. There is a considerable substance in the submission of the learned advocate for the petitioner-original complainant however that for dismissing his Criminal Appeal No.22 of 2012, no reasons are supplied. As noted above, the Appeal of the original complainant is dismissed only by observing two lines quoted above stating that no case is made out does not amount to giving reasons. Manifestly, the order is non-speaking order. A nonspeaking order becomes a cryptic order. 5.3 It is trite that any judgment or order, more particularly by the quasi-judicial and judicial forums, has to be supported by proper reasons. The reasons are soul of any judicial order. The reasons reveal rational nexus between the facts considered and the conclusions reached.
Manifestly, the order is non-speaking order. A nonspeaking order becomes a cryptic order. 5.3 It is trite that any judgment or order, more particularly by the quasi-judicial and judicial forums, has to be supported by proper reasons. The reasons are soul of any judicial order. The reasons reveal rational nexus between the facts considered and the conclusions reached. In Girdayal Sing Fiji v. State of Punjab [ (1992) 4 SCC 363 ], the Supreme Court perceived the reasons as logical links. In Raj Kishore Jha v. State of Bihar, (AIR 2003 SCC 4664) the apex court stated that reason is the heartbeat of every conclusion, and without the same it becomes lifeless. 5.4 The reasons are barometer as to how the mind is applied to a subject matter. The need for according reasons has been emphasised time and again by the Supreme Court. In Assistant Commissioner v. Shukla & Brothers [ (2010) 4 SCC 785 , it was stated that the reasons are part of natural justice. "14. The principle of natural justice has twin ingredients; firstly, the person who is likely to be adversely affected by the action of the authorities should be given notice to show cause thereof and granted an opportunity of hearing and secondly, the orders to passed by the authorities should give reason for arriving at any conclusion showing proper application of mind. Violation of either of them could in the given facts and circumstances of the case, vitiate the order itself. Such rule being applicable to the administrative authorities certainly requires that the judgment of the court should meet with this requirement with higher degree of satisfaction." 5.5 It was further stated, "13. At the cost of repetition, we may notice, that this Court has consistently taken the view that recording of reasons is an essential feature of dispensation of justice. A litigant who approaches the court with any grievance is accordance with law is entitled to know the reasons for grant or rejection of his player. Reasons are the soul of orders. Nonrecording of reasons could lead to dual infirmities; firstly, it may cause prejudice to the affected party and secondly, more particularly, hamper the proper administration of justice." "19.
A litigant who approaches the court with any grievance is accordance with law is entitled to know the reasons for grant or rejection of his player. Reasons are the soul of orders. Nonrecording of reasons could lead to dual infirmities; firstly, it may cause prejudice to the affected party and secondly, more particularly, hamper the proper administration of justice." "19. In the cases where the courts have not recorded reasons in the judgment, legality, propriety and correctness of the orders by the court of competent jurisdiction are challenged in the absence of proper discussion. The requirement of recording reasons is applicable with greater rigour to the judicial proceedings." 5.6 In Kranti Associates Private Ltd. v. Masood Ahmed khan [2010(9)SCC 496] the supreme court reemphasized and reiterated the importance of reasons with reference to several decisions on the point. 6. In the above view, since the learned Additional Sessions Judge dismissed the Criminal Appeal No.22 of 2012 of the complainant without elaborating any reasons, it is appropriate to remit the matter back to the Court of learned Additional Sessions Judge for delivering judgment by passing appropriate order afresh after recording the reasons. 6.1 Accordingly, on this ground alone, without going into the merits of the case of the complainant for enhancement of sentence and payment of compensation, and without expressing any opinion thereon, the matter is remanded to the lower Appellate Court, viz. the Court of learned Additional Sessions Judge, Surat, with a direction to the learned Judge to decide the Criminal Appeal No.22 of 2012 afresh after giving opportunity of hearing to all the sides and to take appropriate decision in accordance with law supported by reasons. The learned Additional Sessions Judge shall not be influenced by his previous rejection in the common order as well as by the present order of this Court in deciding the Criminal Appeal No.22 of 2012 as per the directions in this order. 6.2 It is expected that the learned Sessions Judge will complete the above exercise preferably within 12 weeks from the date of receipt of this order. 7. The present Revision is allowed in the above terms. Rule is made absolute to the above extent.