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Himachal Pradesh High Court · body

2016 DIGILAW 1758 (HP)

Kartar Chand v. Jagdish Chand

2016-08-23

SANDEEP SHARMA

body2016
JUDGMENT : Sandeep Sharma, J. Present criminal revision petition filed under Section 397 of the Code of Criminal Procedure is directed against the judgment dated 7.3.2009, rendered by the learned Sessions Judge, Hamirpur, H.P., in Criminal Appeal No. 104 of 2008, setting-aside the judgment of conviction and sentence passed by the learned Judicial Magistrate, 1st Class, Barsar in Private Complaint No. 125-1 of 2005 dated 17.11.2008. 2. Briefly stated facts as emerged from the record are that the petitioner ( in short ‘the complainant’) and respondent No. 1 (in the ‘accused’) were running the business of ‘Boot’ and ‘Chapple’ as whole sale and retail in the name and style of ‘Lucky Boot House” at Bhota, Tehsil Barsar, District Hamirpur, H.P. as partners. It is further revealed from the complaint that the accused voluntarily relinquished the partnership/business and after settlement of accounts; a sum of Rs. 10 lacs was to be paid by him to the complainant. As per the complainant, the accused paid a sum of Rs. 1 lac in cash and for the remaining amount of Rs. 9 lacs, he issued two post dated cheques bearing Nos. 269556 and 269557 of the Punjab National Bank (in short ‘the PNB’), Mair, District Hamirpur, HP, in favour of the complainant. But fact remains that when the complainant presented the cheque bearing No. 269557 (Ext.CW1/A) dated 15.8.2005, amounting to Rs. 7 lacs in his bank i.e. Kangra Central Cooperative Bank (in short “the Cooperative Bank”), Bijhar, the same was dishonored for ‘insufficient funds’ and the complainant was intimated about it. The complainant got legal notice issued to the accused calling upon him to make the payment of cheque good within a period of 15 days. Since, the accused failed to make the payment in terms of legal notice, the complainant was constrained to initiate proceedings under Section 138 of the Negotiable Instruments Act (in short the Act) against the accused. Learned Judicial Magistrate, Ist Class, Barsar, Hamirpur, H.P., put a notice of accusation to the accused, to which he pleaded not guilty and claimed trial. Learned trial court on the basis of evidence adduced on record found the accused guilty of having committed offence under Section 138 of the Act and accordingly, convicted and sentenced him to undergo simple imprisonment for a period of six months and to pay compensation to the tune of Rs. 7,50,000/-. Learned trial court on the basis of evidence adduced on record found the accused guilty of having committed offence under Section 138 of the Act and accordingly, convicted and sentenced him to undergo simple imprisonment for a period of six months and to pay compensation to the tune of Rs. 7,50,000/-. Being aggrieved and dissatisfied with the aforesaid judgment and order of conviction and sentence dated 17.11.2008 and 18.11.2008, respectively passed by the learned trial Court, the accused approached learned Sessions Judge, Hamirpur, by way of Criminal Appeal No. 104 of 2008, which was allowed vide judgment dated 7.3.2009. Hence this criminal revision petition before this Court by the petitioner-complainant. 3. Mr. Anand Sharma, Advocate, appearing for the petitioner-complainant, vehemently argued that the judgment passed by the learned Sessions judge is not sustainable as the same is not based upon the correct appreciation of the evidence available on record and same deserves to be quashed and set-aside. Mr. Sharma, further contended that the learned Sessions Judge wrongly arrived at the conclusion that the petitioner-complainant had not issued the notice to the accused within the prescribed time after receipt of memo from the concerned Bank. He with a view to substantiate his aforesaid argument, invited attention of this Court to the letter Ext.CW1/B to demonstrate that Cooperative Bank had sent letter dated 21.9.2005 to the petitioner-complainant intimating therein with regard to receipt of bounced cheque amounting to Rs. 7 lacs on account of ‘insufficient funds’ from PNB Mair. Since cheque was received by hand, by the complainant on 21.9.2005, legal notice dated 19.10.2005, which stands duly proved on record as Ext.CW1/G, was served well within stipulated period. Mr. Sharma forcefully contended that in terms of the amendment carried out in Section 138(b) of the Act 1881 on 06.02.03, notice was required to be sent to the drawer of the cheque within a period of 30 days from the date of receipt of information from the Bank regarding the returning of the cheque and as such, immediately after receipt of information from the Bank on 21.9.2005, the complainant got served legal notice dated 19.10.2005. He argued that bare perusal of the statement of CW3 Sanjay Negi, the official of the Cooperative Bank, clearly suggests that cutting/over righting in date was made by the Manager of the Bank, who after correcting the date from 6th September, 2005 to 21st September, 2007 appended his signature. Mr. Sharma, also invited attention of this Court to that portion of the statement of CW3, wherein he stated that the signature appended on the intimation letter encircled with red ink and marked as Mark-W and Y are of the Manager, which were also identified by him. Hence, finding of sessions judge deserves to be quashed and set aside being wrong and contrary to the facts of the record. 4. Mr. Ajay Sharma, Advocate duly assisted by Mr. Amit Jamwal, Advocate, representing respondent No.1-accused supported the judgment passed by the learned First Appellate Court and stated that the same is based on correct appreciation of the evidence available on record. He forcefully argued that bare perusal of the impugned judgment suggests that while accepting the appeal preferred by respondent No.1-accused, learned sessions judge has very meticulously dealt with each and every aspect of the matter and as such, no interference, whatsoever, of this Court is warranted in the present facts and circumstances of the case. During arguments having been made by him, Mr. Ajay Sharma, invited attention of this Court to the statement of CW3 Sanjay Negi to demonstrate that the Bank had sent intimation qua the bouncing of cheque on 6th September, 2005, which was duly received by hand by the complainant on 6.9.2005 itself. He also invited attention of this Court to the extract of the register of entries (Mark-Z), which shows that the complainant had received intimation on 6.9.2005 by hand. Bare perusal of statements of CW3, documents Ext.CW1B and Mark-Z clearly suggests that the complainant had received intimation qua the bouncing of the cheque on 6.9.2005 and as such, notice dated 19.10.2005 Ext.CW1G, was sent beyond the period of limitation i.e. 30 days after the receipt of intimation from the Bank. While refuting the arguments having been made on behalf of the complainant, that the date on letter Ext.CW1/B was corrected by the Manager who appended his signatures. Mr. While refuting the arguments having been made on behalf of the complainant, that the date on letter Ext.CW1/B was corrected by the Manager who appended his signatures. Mr. Ajay Sharma, contended that since the complainant failed to examine the Manager, who allegedly corrected the date from 6th to 25th September, 2015, aforesaid version put forth on behalf of the complainant, cannot be accepted on its face value. While concluding his arguments, Mr. Ajay Sharma, submitted that this Court has very limited powers while exercising revisionary jurisdiction under Section 397 of the Cr.PC, especially when it stands proved on record that court below has dealt with each and every aspect of the matter very meticulously and as such, prayed for dismissal of the present criminal revision petition. 5. Reliance is placed upon the judgment passed by Hon’ble Apex Court in case State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri (1999)2 SCC 452 , wherein it has been held as under:- “In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice.” 6. I have heard the learned counsel for the parties and carefully gone through the record. 7. True, it is that while exercising the power under Section 397 of Criminal Procedure Code, this Court has very limited power to reappreciate the evidence available on record. I have heard the learned counsel for the parties and carefully gone through the record. 7. True, it is that while exercising the power under Section 397 of Criminal Procedure Code, this Court has very limited power to reappreciate the evidence available on record. But this Court solely with a view to ascertain that the judgment passed by the Courts below is not perverse and the same is based upon correct appreciation of evidence available on record, undertook an exercise to critically examine the evidence available on record to reach fair and just decision in the case. 8. As far as scope of power of this Court while exercising revisionary jurisdiction under Section 397 is concerned, the Hon’ble Apex Court in Krishnan and another Vs. Krishnaveni and another, (1997) 4 Supreme Court Case 241; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its judicial process or illegality or sentence or order. The relevant para of the judgment is reproduced herein below:- “8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order.” 9. It is undisputed that cheque in question amounting to Rs. It is undisputed that cheque in question amounting to Rs. 7 lacs was issued in favour of the complainant, which was returned back on account of “insufficient funds”. Since the accused failed to make the payment in terms of the legal notice Ext.CW1/G got issued upon him by the complainant, wherein he was advised to make payment good within a period of 15 days from the date of receipt of it, the complainant initiated proceedings under Section 138 of the Act before the learned trial Court. Learned trial Court on the basis of evidence adduced on record, convicted and sentenced the accused (as mentioned supra) under Section 138 of the Act. However, learned appellate Court accepted the appeal preferred by the accused. Perusal of the impugned judgment suggests that learned Sessions Judge non suited the complainant on the ground of maintainability since he failed to issue statutory notice within a stipulated period as prescribed under Section 138(b) of the Act and as such, this Court, with a view to ascertain the genuineness and correctness of the impugned judgment, would be confining itself to the finding returned by the learned Sessions Judge qua the issuance of legal notice after receipt of intimation from the bank by the complainant to the accused. 10. Close scrutiny of documents available on record suggests that vide Ext.CW1/C, PNB, Mair, Hamirpur, HP, sent copy of memorandum to the Co-operative Bank, enclosing therewith cheque Ext.CW1/A with observation “insufficient funds”. Further perusal of documents Ext.CW1/B placed on record by the complainant suggests that the Cooperative Bank, Dharamshala, intimated the complainant regarding the memorandum received from the PNB. Vide communication dated Ext.CW1/B, Cooperative Bank informed the petitioner that cheque No. 269557 dated 15.8.2005 dated amounting to Rs. 7 lacs drawn at PNB Mair, Hamirpur, is returned as per objection memo of PNB Mair, Hamirpur, HP. As per the complainant, aforesaid intimation was received by him by hand on 21.9.2005. Immediately thereafter, before expiry of statutory period of 30 days, he got the legal notice issued upon the accused asking him to make payment good. 11. During the arguments, this Court had an occasion to peruse the record of the courts below, careful perusal of document Ext.CW1/B clearly suggests that there is over righting as far as date is concerned. Immediately thereafter, before expiry of statutory period of 30 days, he got the legal notice issued upon the accused asking him to make payment good. 11. During the arguments, this Court had an occasion to peruse the record of the courts below, careful perusal of document Ext.CW1/B clearly suggests that there is over righting as far as date is concerned. Though, perusal of Ext.CW1/B suggests that the Manager, Cooperative Bank has appended his signatures while carrying out correction of date from 6.9.2005 to 21.9.2005 i.e. Mark-Y on document Ext.CW1/B, but interestingly, the complainant has nowhere examined the Manager of the Cooperative Bank to prove that he after carrying out correction of date on the document Ext.CW1/B, appended his signatures on it. Though, CW3, i.e. official of the Bank, while deposing before the court below stated that signature encircled with red ink i.e. Mark-Y on document Ext.CW1/B is of the Manager, Cooperative Bank but he nowhere stated that aforesaid Manager had carried out correction, if any, in his presence on the said document. Rather, careful perusal of his statement suggests that letter Ext.CW1/B was issued to the complainant on 6th September, 2005 because he categorically stated in his statement that the complainant received the document Ext.CW1/B on 6.9.2005 as per entry made in the extract of the Register i.e. Mark-Z. This Court also perused the documents Mark-Z available on court case file, which clearly suggests that the complainant had received the document Ext.CW1/B from the Bank on 6.9.2005 and cheque bearing No. 269557 to the tune of Rs. 7 lacs was received by the complainant namely Kartar Chand from the Cooperative Bank on 6.9.2005. After perusing extract of register of entries Mark-Z, this court is satisfied that document Ext.CW1/B was dated 6.9.2005 and same was received by hand by the complainant on 6th September, 2005. 12. Now adverting to another contention raised by the counsel representing the petitioner-complainant that Manager Cooperative Bank himself carried out correction of date on document Ext.CW1/B from 6.9.2005 to 21.9.2005 and appended his signature; this court is unable to accept the aforesaid contention put forth on behalf of the complainant solely for the reason that the Manager, who allegedly changed/corrected the date from 6.9.2005 to 21.9.2005, was nowhere examined by the complainant to prove that letter Ext.CW1/B was dated 21.9.2005. Since, the petitioner-complainant failed to examine the Manager of the Bank, who allegedly carried out correction on the document in question, this Court sees no illegality and infirmity in the impugned judgment passed by the learned Sessions Judge, where he concluded that controversy has been put to rest by CW3 Sanjay Negi, Junior Clerk of Cooperative Bank by specifically stating that cheque has been received back by the petitioner-complainant on 6.9.2005 by putting his signature on Ext.PW3/C. Had the petitioner-complainant examined the Manager of the said Bank to prove the correction, if any, this Court would have lent some credence to the statement of the complainant but in the absence of the statement, if any, of the Manager , qua the alleged correction, this court really finds it difficult to accept the aforesaid contention put forth on behalf of the petitioner-complainant. Once it stands proved on record that the intimation letter i.e. Ext.CW1/B from bank intimating therein dishonoring of the cheque was received by the complainant on 6.9.2005, the complainant was expected to get legal notice issued within 30 days in terms of the Section 138(b) to the accused asking/calling him to make the payment from the date of receipt of intimation dated 6.9.2005. 13. In the facts and circumstances, this Court does not see any reason to interfere with the well reasoned judgment passed by the learned sessions Judge, who has rightly concluded while accepting the appeal of the accused that cheque was returned to the complainant on 6.9.2005 as having been bounced with “insufficient funds”. Under Section 138(b) of the Act, the complainant is/was required to issue notice to the accused intimating about the dishonoring of the cheque and calling him to make the payment of the amount within 30 days from the receipt of the notice. In the instant case, it stands duly proved on record that intimation from the Bank was received by the complainant from 6.9.2005, whereas he got legal notice issued on 19.10.2005 i.e. definitely after the statutory period of 30 days. 14. Consequently, in view of the aforesaid discussion, this court sees no illegality and infirmity in the judgment passed by the learned First Appellate Court, and as such, calls for no interference of this Court as the same is based upon the correct appreciation of evidence available on record. Hence, the instant criminal revision petition is dismissed being devoid of any merit.