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2016 DIGILAW 1969 (HP)

S. K. Shant v. I. C. I. C. I. Bank Ltd.

2016-09-14

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present criminal revision petition is maintained by the petitioner/accused (hereinafter referred to as ‘the petitioner’) assailing the order, dated 16.02.2010, of learned Additional Sessions Judge (Fast Track Court), Shimla, H.P. passed in criminal Appeal No. 83-S/10 of 2009, which had arisen out of the judgment, dated 14.09.2009, passed by the learned Judicial Magistrate Fist Class, Court No. 4, Shimla, in Criminal Complaint No. 143/2 of 2006. 2. Briefly stating the facts giving rise to the present petition are that the complainant/respondent-Bank (hereinafter referred to as ‘the respondent-Bank’) maintained a complaint under Section 138 read with Section 142 of the Negotiable Instrument Act (hereinafter referred to as ‘the Act’) and Sections 406/420 of Indian Penal Code against the petitioner with the allegations that the petitioner took a loan from the respondent-Bank vide agreement No. LPSHM00001912900 and pursuant to the agreement the petitioner, in order to clear a part of the balance loan amount, issued the cheque, dated 14.02.2006, bearing No. 111620, drawn at Punjab National Bank, The Mall, Shimla. However, on being presented, the cheque was dishonored with remarks “funds insufficient”. Subsequently, a demand notice was issued to the petitioner by the respondent-Bank, but the same was not answered, therefore, the respondent-Bank instituted a complaint under Section 138 of the Act. The learned Trial Court convicted the petitioner and sentenced him to undergo simple imprisonment for six months and to pay compensation of Rs. 60,000/- to the respondent-Bank. The petitioner preferred an appeal against the order of learned Trial Court to the Court of learned Additional Sessions Judge (Fast Track Court), Shimla, which came to be dismissed, hence the present petition. 3. The learned Trial Court allowed the complaint and sentenced the petitioner to undergo simple imprisonment for six months and to pay compensation of Rs. 60,000/- to the respondent- Bank for the loss suffered by it and inconvenience and harassment caused. The petitioner (accused), feeling aggrieved, from the judgment of the learned Trial Court preferred an appeal and the learned Lower Appellate Court dismissed the appeal holding that from the statement dated 14.12.2009 made by the petitioner (accused) it becomes clear that he has confessed his guilt. In view of the above noted facts, the learned Lower Appellate Court found no merits in the appeal and the same was accordingly dismissed. 4. In view of the above noted facts, the learned Lower Appellate Court found no merits in the appeal and the same was accordingly dismissed. 4. The learned Lower Appellate Court dismissed the appeal for the simple reason that when appeal was pending before the learned Trial Court the petitioner (accused) has given an undertaking before the Court that he will deposit the amount of compensation and he confessed his guilt. The learned Lower Appellate Court without going into the merits of the appeal has simply held that since the appellant (petitioner herein) has confessed his guilt, so the appeal was dismissed and the petitioner was ordered to surrender before the Court below. Against the said order, the present revision petition is maintained by the petitioner (accused). As per the petitioner, the Court below, however, has neither touched the merits of the appeal nor gone through the facts of the case and simply passed the order on 16.02.2010 after recording the statement of the accused on 14.12.2009. It is further averred that the order of the learned Lower Appellate Court is not sustainable for the simple reason that the Court below has not touched the merits of the appeal at all. Whether the amount was legally payable or not has not been considered by the learned Lower Appellate Court and no findings are given on the appeal. 5. I have heard the learned counsel for the petitioner, learned counsel for the respondent and gone through the record in detail. 6. The learned counsel for the petitioner has argued that the findings of the learned Lower Appellate Court are no findings and the appeal is required to be remanded back to the learned Lower Appellate Court to give findings on merits of the case. The learned counsel for the respondent has argued that no findings are required to be given by the learned Lower Appellate Court when the accused has himself admitted his mistake and confessed his guilt and also promised to pay Rs. 60,000/- to the respondent-Bank. In rebuttal, the learned counsel for the petitioner has argued that his statement is not sufficient to conclude his guilt, as the appeal was pending adjudication before the learned Lower Appellate Court and the Court below was required to give its findings on merits. 7. 60,000/- to the respondent-Bank. In rebuttal, the learned counsel for the petitioner has argued that his statement is not sufficient to conclude his guilt, as the appeal was pending adjudication before the learned Lower Appellate Court and the Court below was required to give its findings on merits. 7. This Court finds that the petitioner (accused), in the learned Trial Court, has disputed the delivery of the cheque as well as the receipt of the statutory notice and these facts were again agitated before the learned Lower Appellate Court in appeal. In the fitness of the things, the learned Lower Appellate Court was required to at least go through the merits of the case after hearing the learned counsel for the parties and give its findings on the merits of the appeal. The order passed by the learned Lower Appellate Court is without touching the merits of the case and the same is not sustainable in the eyes of law and is liable to be set aside. Accordingly, the order under challenge, passed by the learned Lower Appellate Court, dated 16.02.2010, is set aside and it is directed that the learned Lower Appellate Court will pass a detailed order touching the merits of the case as well as considering the submissions made by the learned counsel for the parties afresh. 8. In view of what has been discussed hereinabove, the case is remanded back to the Court of learned Lower Appellate Court for deciding the same afresh on merits. Records, if any, be send back forthwith to the concerned Court. The petition, as also pending applications, if any, stands disposed of.