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2013 DIGILAW 1289 (ALL)

Piyush Kumar Garg v. State of U. P.

2013-05-01

ADITYA NATH MITTAL

body2013
Aditya Nath Mittal, J.: - 1. This Criminal Revision has been filed against the order dated 9.2.2010 passed by Addl. Sessions Judge, Chandausi (Moradabad) in Criminal Appeal No. 84 of 2008 Piyush Kumar Garg v. State and others by which the appeal has been dismissed and the conviction order dated 20.9.2008 passed by Addl. Civil Judge (JD)/Judicial Magistrate, Chandausi has been affirmed. Learned counsel for the revisionist has submitted that notice was not duly served upon the revisionist, therefore the complaint could not have been filed by opposite party No. 2. It has also been submitted that the cheque was not issued in discharge of any legally recoverable debt, therefore the complaint under section 138 Negotiable Instruments Act could not have been filed. It has also been submitted that it has also not been proved that notice was sent on correct address. No loss has been proved by opposite party No. 2, therefore no compensation could be awarded to him. It has also been submitted that learned Magistrate has exceeded in his jurisdiction by awarding compensation. 2. Learned counsel for opposite party No. 2 has submitted that opposite party No. 2 had given a loan of Rs. 65,000/- to revisionist and in lieu of payment, the revisionist had issued the alleged cheque with the understanding that whenever it shall be produced before the Bank, the payment shall be made. The cheque was produced before the Bank for payment which was dishonoured with the remark of insufficient funds. Upon dishonour of the cheque, the complainant had informed the accused on telephone but the complainant had not paid any heed. The opposite party No. 2 had sent a notice on 11.8.2005 by registered post which was returned back in connivance with the post man. Thereafter the complaint was filed. Learned courts below have considered the material on record and have rightly convicted the revisionist. 3. I have gone through the impugned judgment and order and also other materials on record. It is settled position of law that High Court will exercise its revisional power where there is a material error or defect in law or procedure, misconception or misreading of evidence, failure to exercise or wrong exercise of jurisdiction or where the facts admitted or proved do not disclose any offence. 4. It is settled position of law that High Court will exercise its revisional power where there is a material error or defect in law or procedure, misconception or misreading of evidence, failure to exercise or wrong exercise of jurisdiction or where the facts admitted or proved do not disclose any offence. 4. As a broad proposition, the interference may be justified (a) where the decision is grossly erroneous; (b) where there is no compliance with the provisions of law; (c) where the finding of fact affecting the decision is not based on the evidence; (d) where the material evidence of the parties has not been considered; and (e) where the judicial discretion is exercised arbitrarily or perversely. 5. In exercise of the revisional jurisdiction, it will be beyond its power and jurisdiction to reassess the evidence. Appraisal of the evidence is not permissible in revision petition. Hon'ble Supreme Court in "State of Kerala v. Putthumana Illath Jathavedan Namboodiri", AIR 1999 SC 981 , has held that the High Court while hearing revisions does not work as a Appellate Court and will not reappreciate the evidence, unless some glaring feature is pointed out which may show that injustice has been done. 6. Hon'ble Apex Court in "Jagannath Chaudhary v. Ramayan Singh", AIR 2002 SC 2229 , has held that revisional jurisdiction is normally to be exercised only in exceptional cases where there is a glaring defect in the procedure or there is a manifest error or point of law and consequently there has been a flagrant miscarriage of justice. In "Munna Devi v. State of Rajasthan and others" AIR 2002 SC 107 , it has been further held that while exercising the revisional powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. 7. Hon'ble the Apex Court in "State of Karnataka v. Appa Balu Ingale and others", AIR 1993 SC 1126 , has held that generally speaking, concurrent findings of fact arrived at by two courts below are not to be interfered with by the High Court in absence of any special circumstances or if same are perverse in any manner. 8. A complaint under section 138, Negotiable Instruments Act was filed by opposite party No. 2 alleging that on 5.6.2005 Piyush Kumar Garg (the accused) had came to his residence and has demanded Rs. 8. A complaint under section 138, Negotiable Instruments Act was filed by opposite party No. 2 alleging that on 5.6.2005 Piyush Kumar Garg (the accused) had came to his residence and has demanded Rs. 65,000/-. At that time Ram Kishore and Satish Kumar were also sitting. The complainant had given the sum of Rs. 65,000/- to which the accused promised to return within one month. When the same amount was not returned within one month then upon demand of money, the accused had issued a cheque No. 798788 dated 26.7.2005 drawn on State Bank of India for Rs. 65,000/-. The said cheque was produced before State Bank of India, Naraura on 27.7.2005 which was dishonoured by the State Bank of India on 31.7.2005 mentioning that funds are insufficient. The said letter of dishonour was received by him on 8.8.2005 upon which the complainant had complained about dishonoured cheque on telephone No. 05734223975. Upon which the accused had replied that had he had to give the amount then why he should have issued the wrong cheque and refused to pay the amount. Registered notice was sent on 12.8.2005 which was returned by the accused in connivance with the postman. Therefore the complaint was filed for the offence punishable u/s. 138, N.I. Act and sections406, 420, I.P.C. Learned Magistrate after recording the statement u/s. 200, Cr.P.C., had summoned the accused for the offence punishable u/s. 138, N.I. Act. After recording evidence of complainant Khub Singh P.W. 1, Satish Kumar Singh P.W. 2, Ram Kishore Rajput P.W. 3 and K.K. Tomar P.W. 4, the accused was afforded opportunity to adduce evidence in defence, upon which the accused had examined himself as D.W. 1. It is relevant to mention that in the statement u/s. 313, Cr.P.C. the accused had admitted that the cheque was given but it was given as security. 9. After appreciation of the evidence, learned trial court came to the conclusion that the accused had issued the alleged cheque to complainant which was dishonoured and after dishonour of the cheque, telephonic information as well as registered notice was given to the accused but the accused has not repaid the said amount of cheque. The trial court further relied upon Alvi Hazi v. Pelapeti Mohammad 2007 (2) CC 1103 Supreme Court and had found the service of notice sufficient. The trial court further relied upon Alvi Hazi v. Pelapeti Mohammad 2007 (2) CC 1103 Supreme Court and had found the service of notice sufficient. After considering the evidence on record, learned trial court found the accused guilty for the offence punishable u/s. 138 N.I. Act and sentenced him to 3 months R.I. and a fine of Rs. 5000/- along with a compensation of Rs. 70,000/- u/s. 357(3), Cr.P.C. by order and judgment dated 20.9.2008. 10. This judgment of trial court was challenged in Criminal Appeal No. 84 of 2008 before Sessions Judge, Chandausi and the Sessions Judge, Chandausi after hearing both the parties, had dismissed the appeal and maintained the conviction. 11. As far as the service of notice is concerned, both the learned courts below have discussed this aspect at length and have also taken into consideration the documentary evidence i.e. postal receipt, the registered envelope and the slip of P.C.O. dated 11.8.2005 by which a call at phone No. 05734223975 was made. Learned courts below have also come to the conclusion that there was no dispute as to the address mentioned on the registered envelope. The accused has also not taken any defence that he does not reside on the address given on the envelope. Hon'ble Apex Court in Alvi Hazi v. Pelapeti Mohammad (supra) has held that if the address is correct and the addressee is available but a wrong endorsement has been manipulated then it will amount to refusal of the notice. Hon'ble Apex Court has further held that if the complainant is able to prove that the drawer of the cheque knew about the notice deliberately evaded service and get a false endorsement only to defeat the process of law, the court shall presume the service of notice. 12. In the present case it has specifically proved that before sending the notice by registered post, the information by aforesaid telephone was given to the accused and the receipt of P.C.O. has also been submitted in evidence and has been proved. The returned registered letter has also been produced in the evidence. The address mentioned on it was also not challenged. In all these circumstances, it cannot be said that the revisionist had no notice of dishonour of the cheque. Learned courts below have categorically dealt with this aspect in detail and have rightly come to the conclusion that service of notice was sufficient. 13. The address mentioned on it was also not challenged. In all these circumstances, it cannot be said that the revisionist had no notice of dishonour of the cheque. Learned courts below have categorically dealt with this aspect in detail and have rightly come to the conclusion that service of notice was sufficient. 13. It has been submitted that the cheque was not issued in discharge of any legally recoverable debt. The complainant has alleged that he has given a sum of Rs. 65,000/- to accused as loan who had promised to repay the same within one month. It was also alleged that when the payment was not made within one month, then the accused has issued the alleged cheque. The alleged cheque and the signature on it have been proved by the prosecution witnesses and the accused himself also admitted that he had issued the cheque to Khub Singh but he has not mentioned the date and amount on it. The issuance of cheque has been admitted by the revisionist and in view of the provisions of section 118, N.I. Act unless the contrary is proved the presumption regarding consideration, date, time of acceptance, time of transfer etc. shall be made. Section 118A provides that until the contrary is proved, it shall be presumed that every negotiable instrument was made or drawn for consideration. Nothing contrary has been proved so that the aforesaid presumption may be rebutted. The complainant has proved the debt of Rs. 65,000/- and certainly it was a legally recoverable debt. Learned courts below have also considered these aspects at length in the light of evidence on record and have also considered the evidence of accused who has been examined as D.W. 1. Learned courts below have come to the conclusion that the defence regarding utilization and payment of all the cheques prior to and after the serial No. 798788 have been honoured by the Bank, has not been proved. Moreover the memorandum of Bank by which the cheque was dishonoured due to insufficient fund has also not been disputed. Therefore there remained no doubt that the cheque has been dishonoured due to insufficient funds. It was the duty of the accused to maintain the funds at Bank so that the cheque could be honoured. 14. Moreover the memorandum of Bank by which the cheque was dishonoured due to insufficient fund has also not been disputed. Therefore there remained no doubt that the cheque has been dishonoured due to insufficient funds. It was the duty of the accused to maintain the funds at Bank so that the cheque could be honoured. 14. Learned counsel for the revisionist has submitted that the alleged loan is said to have been taken for establishment of P.C.O. while the cost of instrument is hardly Rs. 300/- or Rs. 400/-. The capacity of the complainant has also been challenged alleging that he is simply railway reservation clerk who is not supposed to have a cash of Rs. 65,000/- at his home. I do not find any substance in these arguments because neither a P.C.O. can be established or extended by a meagre amount of Rs. 300/- or Rs. 400/- because apart from instrument, securities are also required to be deposited at the post office. The amount of Rs. 65,000/- is not such a huge amount which a reservation clerk cannot have at his home. 15. I also do not find any substance in the submission of learned counsel for the revisionist that the Judicial Magistrate Class-I has no power to impose compensation exceeding Rs. 5,000/-. As per provision of section 29(2), Cr.P.C. the court of Magistrate Ist class may pass a sentence of imprisonment for a term not exceeding 3 years or of fine not exceeding Rs. 10,000/- or both. In the present case the sentence of imprisonment as well as the amount of fine is much less as provided in section 29(2), Cr.P.C. The submission of learned counsel for the revisionist is also misconceived that u/s. 357(3), Cr.P.C. the Magistrate has no power to pass a judgment granting the compensation because section 357(3), Cr.P.C. clearly provides that the court may when passing judgment, order the accused person to pay by way of compensation, such amount as may be specified in the order. Moreover section 138, N.I. Act also provides that without prejudice to any other provision of this Act the accused may be punished with imprisonment for a term which may extend to two years or with fine which may extend to twice the amount of the cheque or with both. Moreover section 138, N.I. Act also provides that without prejudice to any other provision of this Act the accused may be punished with imprisonment for a term which may extend to two years or with fine which may extend to twice the amount of the cheque or with both. The Negotiable Instruments Act, 1881 is a special enactment and the provisions of this Act cannot be said to be in contradiction with the Code of Criminal Procedure. In the present case the revisionist has been sentenced to 3 months imprisonment and a fine of Rs. 5000/- along with a compensation of Rs. 70,000/-. 16. Both the courts below have categorically discussed each and every aspect of the matter and have taken into consideration the evidence on record. There are concurrent findings of fact arrived at by two courts below and in view of State of Karnataka v. Appa Balu ( AIR 1993 SC 1126 ) (supra) the findings are not to be interfered by this Court in absence of any special circumstance or if same are perverse in any manner. I do not find any special circumstance or perversity to interfere with the concurrent findings of fact arrived at by both the courts below. I also do not find that any glaring mistake has been committed by the courts below or that any injustice has been done to the revisionist. 17. For the facts and circumstances mentioned above, I do not find any error of law or perversity. The revision is dismissed. 18. The revisionist is directed to appear before the trial court within 15 days from today to serve out the sentence failing which the court below shall be at liberty to issue coercive process for arrest of the revisionist for serving out the sentence and recovery of fine and compensation. Office is directed to inform the trial court accordingly and send back the lower court record at an early date.