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2016 DIGILAW 2307 (HP)

Suresh Kumar v. Jagvir Singh

2016-10-28

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. - By way of this revision petition, the petitioner has challenged the judgment passed by the Court of learned Additional Sessions Judge, Hamirpur, Circuit Court Barsar in Cr. Appeal No. 6/11 RBT 4/13, 05/14 dated 23.3.2015 vide which, learned appellate Court while dismissing the appeal filed by the present petitioner upheld the judgment of conviction passed by the Court of learned Judicial Magistrate 1st Class Barsar, Distt. Hamirpur in Complaint No. 153-I-2009 dated 8.12.2010/14.12.2010, whereby learned trial Court had convicted the present petitioner for commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act') and had sentenced him to undergo six months rigorous imprisonment and to pay a fine of Rs. 1,05,000/-. 2. Brief facts necessary for adjudication of the case are that a complaint was filed by the present respondent (complainant) against the petitioner on the ground that petitioner was his friend and had desired to start business of potatoes and onions at Chandigarh and for this purpose petitioner needed some money, therefore, he approached the complainant in the month of April, 2009 for advance on credit basis and assured him to return the same as early as possible. According to the complainant, he advanced an amount of Rs. 85,000/- to the petitioner on 29.4.2009 but he (petitioner) failed to return the said amount to him. Further as per complainant, he approached the petitioner in the month of July, 2009 for repayment of the same and petitioner issued cheque bearing No. 982802 dated 18.7.2009 for an amount of Rs. 85,000/- drawn at State Bank of India, Chakmoh Branch to him, however, when complainant presented the said cheque for its being honoured with his banker i.e., State Bank of India Chakmoh on 17.9.2009, the same was returned unpaid due to 'insufficient funds' in the account of the petitioner. Following this as per the complainant, he issued legal notice to the accused on 30.9.2009, however, despite this petitioner did not discharge his liability towards the complainant forcing him to file complaint under Section 138 of the NI Act. 3. In order to prove its case complainant examined himself as well as one more witness, whereas the petitioner despite opportunity granted to him failed to lead any evidence. 4. 3. In order to prove its case complainant examined himself as well as one more witness, whereas the petitioner despite opportunity granted to him failed to lead any evidence. 4. On the basis of material produced on record it was held by learned trial court that it stood proved on record that the complainant who was known to the petitioner had advanced an amount of Rs. 85,000/- to the petitioner on his asking for the purpose of investment in business but when petitioner approached in the month of July, 2009 for repayment of the same, he issued a cheque in lieu of the same which was not honoured. It was further held by learned trial court that though in his statement recorded under Section 313 Cr.P.C. petitioner had denied that any amount was advanced by the complainant but no such suggestion was put to the complainant during his cross-examination. It was further held by learned trial court that the statement of complainant was cogent and convincing and there was no inconsistency in the same. Learned trial court further held that the factum of cheque which was issued by the petitioner having been dishonoured was also duly proved by Prithi Chand who entered the witness box as CW-1 and that the issuance of notice also stood duly proved on record. On these bases learned trial court allowed the complaint and convicted the accused. 5. In appeal, learned appellate court upheld the findings so returned by learned trial court by holding that it stood proved on record that an amount of Rs. 85,000/- was in fact borrowed by the petitioner from the complainant and in lieu of return of the same, cheque which was issued by the petitioner to complainant had bounced and thereafter legal notice Ext. C-1/A was issued by the petitioner and despite receipt of the said notice no payment was made by him. Learned appellate court further held that CW- 1 who was an official from the State Bank of India, Chakmoh had established that cheque issued by the complainant when presented for encashment was not honoured on account of 'insufficient funds'. Learned appellate court further held that complainant had complied with all necessary codal formalities and had further filed the complaint within time. Learned appellate court further held that complainant had complied with all necessary codal formalities and had further filed the complaint within time. It further held that evidence on record prima facie established the commission of offence punishable under Section 138 of the NI Act and in view of the legal presumptions as provided under Sections 118 and 139 of the NI Act, it could be held so in view of evidence which was adduced on record. It was further held by the learned appellate court that the contention of the petitioner that no such cheque was ever issued by him was not sustainable as the petitioner had not taken any steps to avoid misuse of cheque by the complainant in case the version of the petitioner was correct. It further held that the petitioner has failed to give any cogent explanation as to how the cheque in question came in the hands of the complainant. On these bases, learned appellate court upheld the judgment of conviction passed by the learned trial court. 6. I have heard learned counsel for the parties and have also gone through the records of the case as well as the judgments passed by both learned courts below. 7. Mr. Chauhan learned counsel for the petitioner could not point out during the course of arguments as to what was the perversity with the findings returned by learned courts below and how the findings so returned by both learned courts below were not borne out from the records of the case. The factum of an amount of Rs. 85,000/- having been advanced by the complainant to the petitioner has been duly proved by the complainant in his evidence and the statement of this witness is cogent, reliable and it inspires confidence. In his cross-examination his credibility could not be impinged by the petitioner. Not only this, it stands proved on record that after the cheque which was issued by the petitioner to the complainant was not honoured. Statutory notice as is the requirement under the NI Act was duly issued by the complainant to the petitioner which was duly received by the petitioner. Not only this, it stands proved on record that after the cheque which was issued by the petitioner to the complainant was not honoured. Statutory notice as is the requirement under the NI Act was duly issued by the complainant to the petitioner which was duly received by the petitioner. No reply to the same was filed by the petitioner which also belies his case that he had not borrowed any amount from the petitioner because if that was the case then the said facts could have been stated at the earliest in reply to the said notice. The factum of the cheque which was issued by the petitioner in favour of complainant having been dishonoured stands duly proved and corroborated by CW-1. Therefore, keeping in view the fact that both the learned courts below have held against the petitioner that he was liable to be convicted for commission of offence punishable under the NI Act, in my considered view the findings so recorded by both the learned courts below do not call for any interference as no perversity was pointed out to the findings so recorded by both the learned courts below. During the course of arguments it could not be satisfactorily explained by the learned counsel for the petitioner as to what warranted issuance of cheque by the petitioner in favour of the complainant. He further could not answer as to why the notice issued by the complainant to the petitioner was not replied to and why no evidence was led by the petitioner to substantiate his contention. All these facts demonstrate that on merit there was no material available with the petitioner to assail the findings returned by both the learned courts below. 8. Besides this, it is well settled law that the jurisdiction of High Court in revision is severely restricted and it cannot embark upon re-appreciation of evidence. The High Court in revision cannot in absence of error on a point of law, re-appreciate evidence and reverse a finding of law. 9. 8. Besides this, it is well settled law that the jurisdiction of High Court in revision is severely restricted and it cannot embark upon re-appreciation of evidence. The High Court in revision cannot in absence of error on a point of law, re-appreciate evidence and reverse a finding of law. 9. It is settled law that the object of the revisional jurisdiction was to confer power upon superior criminal Courts a kind of paternal or supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precaution or apparent harshness of treatment which has resulted on the one hand, or on the other hand in some undeserved hardship to individuals. 10. Thus, it can be safely inferred that this Court has to exercise its revisional powers sparingly. Though, this Court is not required to act as a Court of appeal, however, at the same time it is the duty of the Court to correct manifest illegality resulting in gross miscarriage of justice. However, I do not find any manifest illegality with the judgments passed by the learned Courts below in the present case. In view of the above discussion, I am of the considered opinion that there is neither any infirmity nor any perversity with the judgment passed by the learned Trial Court as well as by the learned Appellate Court, hence the present petition is accordingly dismissed, so also pending applications, if any.