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2018 DIGILAW 2168 (HP)

Saravjeet Malhotra v. Lic Housing Finance Limited

2018-12-06

TARLOK SINGH CHAUHAN

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JUDGMENT Tarlok Singh Chauhan, J. - The petitioner has been convicted and sentenced to undergo simple imprisonment for a period of one year and to pay compensation of Rs.6,50,000/- to the respondent for an offence having been committed under Section 138 of the Negotiable Instruments Act(for short the ''Act'') by the learned Judicial Magistrate Ist Class, Court No.3, Shimla, on 11.06.2012/18.06.2012 which conviction and sentence was upheld by the learned Sessions Judge, (Forests), Shimla, on 03.01.2014, constraining him to file the present revision petition. 2. Briefly stated the facts of the case are that the respondent filed a complaint against the petitioner with the allegations that the petitioner had approached respondent- LIC Housing Finance Limited which was running its business of housing finance and the petitioner was granted house loan of Rs.6,50,000/- for the construction of the house. The said loan was to be repaid by the petitioner in equal monthly installments within a period of 12 years. However, the petitioner was irregular in making the installments as was agreed by him and, therefore, in discharge of his liability issued a cheque of Rs.5,87,385/- drawn at Bank of Maharashtra, Mandi. The cheque on presentation was dishonoured with the remarks "insufficiency of funds". Thereafter, respondent issued a legal notice demanding payment of the cheque amount, however, the petitioner despite receipt of the notice failed to make the payment. 3. The petitioner was summoned and notice of accusation was put to him to which he pleaded not guilty and claimed trial. 4. The respondent in order to substantiate its case examined one witness Hitender Singh Verma and thereafter closed the evidence, whereas, the petitioner after being examined under Section 313 Cr.P.C. himself stepped into the witness box as DW-1. 5. As observed above, the learned trial Magistrate after hearing the parties and perusing the evidence on record convicted the petitioner as aforesaid and the appeal filed against the said conviction and sentence also came to be dismissed by the learned Sessions Judge. 6. It is vehemently argued by Shri B.N.Sharma, Advocate, Legal Aid Counsel, for the petitioner that the findings recorded by the learned Courts below are perverse and, therefore, deserve to be set aside. On the other hand, Shri Sanjay Dalmia, Advocate, for the respondent, would support the judgments by contending that the same being in accordance with law call for no interference. 7. On the other hand, Shri Sanjay Dalmia, Advocate, for the respondent, would support the judgments by contending that the same being in accordance with law call for no interference. 7. I have heard the learned counsel for the parties and have also gone through the records of the case. 8. However, before I deal with the contentions put-forth by the learned counsel for the petitioner, it would be necessary to delineate the scope and power of this Court while dealing with revision petition of the instant kind. 9. In Amur Chand Agrawal vs. Shanti Bose and another , (1973) AIR SC 799, the Hon''ble Supreme Court has held that the revisional jurisdiction should normally be exercised in exceptional cases when there is a glaring defect in the proceedings or there is a manifest error of point of law and consequently there has been a flagrant miscarriage of justice. 10. In State of Orissa vs. Nakula Sahu , (1979) AIR SC 663, the Hon''ble Supreme Court after placing reliance upon a large number of its earlier judgments including Akalu Aheer vs. Ramdeo Ram , (1973) AIR SC 2145, held that the power, being discretionary, has to be exercised judiciously and not arbitrarily or lightly. The Court held that "judicial discretion, as has often been said, means a discretion which is informed by tradition methodolised by analogy and discipline by system". 11. In Pathumma and another vs. Muhammad , (1986) AIR SC 1436, the Hon''ble Apex Court observed that High Court "committed an error in making a re-assessment of the evidence" as in its revisional jurisdiction it was "not justified in substituting its own view for that of the learned Magistrate on a question of fact". 12. In Bansi Lal and others vs. Laxman Singh , (1986) AIR SC 1721, the legal position regarding scope of revisional jurisdiction was summed up by the Hon''ble Supreme Court in the following terms: "It is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial court, that the High Court is empowered to set aside the order of the acquittal and direct a re-trial of the acquitted accused. From the very nature of this power it should be exercised sparingly and with great care and caution. From the very nature of this power it should be exercised sparingly and with great care and caution. The mere circumstance that a finding of fact recorded by the trial court may in the opinion of the High Court be wrong, will not justify the setting aside of the order of acquittal and directing a re-trial of the accused. Even in an appeal, the Appellate Court would not be justified in interfering with an acquittal merely because it was inclined to differ from the findings of fact reached by the trial Court on the appreciation of the evidence. The revisional power of the High Court is much more restricted in its scope." 13. In Ramu @ Ram Kumar vs. Jagannath , (1994) AIR SC 26, Hon''ble Supreme court cautioned the revisional Courts not to lightly exercise the revisional jurisdiction at the behest of a private complainant. 14. In State of Karnataka vs. Appu Balu , (1993) AIR SC 1126 = II (1992) CCR 458 (SC), the Hon''ble Supreme Court held that in exercise of the revisional powers, it is not permissible for the Court to reappreciate the evidence. 15. In Ramu alias Ram Kumar and others vs. Jagannath , (1994) AIR SC 26 the Hon''ble Supreme Court held as under: "It is well settled that the revisional jurisdiction conferred on the High Court should not be lightly exercised particularly when it was invoked by a private complaint." 16. In Kaptan Singh and others vs. State of M. P. and another , (1997) AIR SC 2485 = II (1997) CCR 109 (SC), the Hon''ble Supreme Court considered a large number of its earlier judgments, particularly Chinnaswami vs. State of Andhra Pradesh , (1962) AIR SC 1788 ; Mahendra Pratap vs. Sarju Singh , (1968) AIR SC 707; P.N.G. Raju vs. B. P. Appadu , (1975) AIR SC 1854 and Ayodhya vs. Ram Sumer Singh , (1981) AIR SC 1415 and held that revisional power can be exercised only when "there exists a manifest illegality in the order or there is a grave miscarriage of justice". 17. 17. In State of Kerala vs. Puttumana Illath Jathavedan Namboodiri , (1999) 2 SCC 452 , the Hon''ble Supreme Court 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 the 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." 18. In State of A.P. vs. Rajagopala Rao , (2000) 10 SCC 338 , the Hon''ble Supreme Court held as under: "The High Court in exercise of its revisional power has upset the concurrent findings of the Courts below without in any way considering the evidence on the record and without indicating as to in what manner the courts below had erred in coming to the conclusion which they had arrived at. The judgment of the High Court contains no reasons whatsoever which would indicate as to why the revision filed by the respondent was allowed. In a sense, it is a non-speaking judgment." 19. Bearing in mind the aforesaid exposition of law and restricted scope of revisional jurisdiction, I have proceeded to analyze in brief the evidence available on record. 20. The respondent examined Shri Hitender Singh Verma as CW-1, who testified that he was authorized by the respondent-Company to institute and maintain the complaint vide letter Ex. CW1/A. He also testified that the petitioner had applied for grant of loan and the respondent disbursed a loan of Rs.6,50,000/- to the petitioner. The loan amount was to be repaid within a period of 12 years in equal monthly installments. However, the petitioner failed to deposit the same and thereafter issued a cheque amounting to Rs.5,87,385/- Ex. CW1/A. He also testified that the petitioner had applied for grant of loan and the respondent disbursed a loan of Rs.6,50,000/- to the petitioner. The loan amount was to be repaid within a period of 12 years in equal monthly installments. However, the petitioner failed to deposit the same and thereafter issued a cheque amounting to Rs.5,87,385/- Ex. CW1/C. The said cheque was presented in the Bank, but was dishonoured vide memos Ex. CW1/D and Ex. CW1/E, respectively. Thereafter, legal notice Ex. CW1/F was issued vide postal receipt Ex. CW1/G and UPC receipt Ex. CW1/H. Despite receipt of the notice, the petitioner failed to make the payment within the statutory period. In cross-examination, the witness denied that the cheque of the petitioner had been misused. 21. As against the aforesaid evidence, the petitioner stepped into the witness box as DW-1 and admitted the receipt of loan amount, but would depose that no legal notice was received by him. He admitted that the balance amount was still to be paid. 22. From the evidence led by the respondent, it is evidently clear that it was in the business of lending house loans and the petitioner had availed the same and agreed to pay the same within a period of 12 years in equal monthly installments. It is also proved on record that there was default in payment of the installments and, therefore, in lieu of discharge of his liability, the petitioner handed over a cheque Ex. CW1/C amounting to Rs.5,87,385/- to the respondent which was dishonoured on account of "insufficiency of funds". The petitioner despite having received a legal notice under the Act failed to pay the said amount and thus had made himself liable to be prosecuted and punished under the Act. 23. Sections 118 and 139 of the Act provide that once such cheque has been signed and issued in favour of the holder, there is a statutory presumption that it is issued in discharge of legally enforceable debt or liability. This presumption is rebuttable one if issuer of the cheque is able to discharge the burden that it was issued for some other purpose like security of loan. However, in the present case, no such evidence has been led by the petitioner rather there is overwhelming evidence to show that the cheque in question had been issued in discharge of legally enforceable debt. 24. However, in the present case, no such evidence has been led by the petitioner rather there is overwhelming evidence to show that the cheque in question had been issued in discharge of legally enforceable debt. 24. There is no perversity much less illegality in the orders passed by the learned Courts below so as to warrant interference. As observed above, the High Court in exercise of its revisional jurisdiction cannot interfere with the order of the Magistrate unless it is perverse. Such order cannot be set aside merely on the ground that another view is possible. (See: Kishan Rao vs. Shankar Gowda , (2018) 8 SCC 165 .) 25. Having said so, I find no merit in this revision petition and the same is accordingly dismissed. Pending application, if any, also stands disposed of.