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2021 DIGILAW 90 (RAJ)

Ashoka Gears v. Sh. R. N. Metals India Pvt. Ltd

2021-01-13

MAHENDAR KUMAR GOYAL

body2021
ORDER 1. This criminal misc. petition has been filed against the judgment dated 11.02.2020 passed by the learned Additional Sessions Judge, Women Atrocities Cases, No.2, Jaipur Metropolitan, Jaipur in Appeal No.46/2019, CIS No.944/2019 whereby, the appeal against the judgment dated 14.05.2019 passed by the learned Special Metropolitan Magistrate (N.I. Act Cases) No.5 in Regular Criminal (Complaint) No.802/2015, convicting and sentencing accused petitioner under Section 138 of the Negotiable Instruments Act, 1881 (for brevity-"the Act of 1881"), has partly been dismissed. 2. A preliminary question arises as to maintainability of this criminal misc. petition under Section 482 Cr.P.C. against the final order of conviction. 3. It is well established and recognised practice that against appellate order confirming the judgement of conviction, the revision petition lies under Section 397 read with Section 401 Cr.P.C. 4. The Hon'ble Supreme Court has, in case of Vivek Rai & Anr. vs. High Court of Jharkhand through Registrar General & Ors.-JT 2015 (2) SC 32, held as under: "5..................... It is well known practice that generally a revision against conviction and sentence is filed after an appeal is dismissed and the convicted person is taken into custody in Court itself..........." 5. A three-Judges Bench of the Hon'ble Apex Court of India has, in case of Girish Kumar Suneja vs. Central Bureau of Investigation (2017) 14 SCC 809 , held as under: "16. There are three categories of orders that a court can pass - final, intermediate and interlocutory. There is no doubt that in respect of a final order, a court can exercise its revision jurisdiction - that is in respect of a final order of acquittal or conviction. There is equally no doubt that in respect of an interlocutory order, the court cannot exercise its revision jurisdiction. As far as an intermediate order is concerned, the court can exercise its revision jurisdiction since it is not an interlocutory order." 6. Similarly, another three-Judges Bench of the Hon'ble Apex Court of India in case of Damodar S. Prabhu vs. Sayed Babalal H. (2010) 5 SCC 663 , held as under: "20. It may be noted here that Section 143 of the Act makes an offence under Section 138 triable by a Judicial Magistrate, First Class (JMFC). After trial, the progression of further legal proceedings would depend on whether there has been a conviction or an acquittal. It may be noted here that Section 143 of the Act makes an offence under Section 138 triable by a Judicial Magistrate, First Class (JMFC). After trial, the progression of further legal proceedings would depend on whether there has been a conviction or an acquittal. In the case of conviction, an appeal would lie to the Court of Sessions under Section 374(3)(a) Cr.PC; thereafter a Revision to the High Court under Section 397/401 Cr.PC and finally a petition before the Supreme Court, seeking special leave to appeal under 136 of the Constitution of India. Thus, in case of conviction there will be four levels of litigation. In the case of acquittal by JMFC, the complainant could appeal to the High Court under Section 378(4) Cr.PC, and thereafter for special leave to appeal to the Supreme Court under Article 136. In such an instance, therefore, there will be three levels of proceedings." 7. Although, the provisions of Section 397 Cr.P.C. read with Section 401 Cr.P.C, do not provide expressly that revision lies against confirmation of judgement of conviction in appeal; but, from the tenor of these provisions, such inference can reasonably be drawn. Section 397 Cr.P.C. reads as under: "397. Calling for records to exercise powers of revision-(l) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation- All Magistrates whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section 398. (2) The powers of revision conferred by Sub-Section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (2) The powers of revision conferred by Sub-Section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them." Section 401 of Cr.P.C. reads as under: "401. High Court's powers of revision- (1) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (2)xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. (4) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (5) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx." 8. This Court, from the conspectus of the law laid down by the Hon'ble Apex Court of India in the cases of Vivek Rai & Anr. (supra), Girish Kumar Suneja (supra) and Damodar S. Prabhu (supra) and the provisions contained in Section 397 and Section 401 of Cr.P.C, is satisfied that revision lies against the order of conviction affirmed in appeal. 9. Confronted with this situation, learned counsel for the petitioner submitted that a petition under Section 482 Cr.P.C. can be filed instead of a revision petition under Section 397 where exceptional circumstances exist. He submitted that such exceptional circumstance obtaining in the present case is settlement of dispute between the parties by way of compromise. 10. Learned counsel for the petitioner relies on the judgements of the Hon'ble Apex Court of India in cases of Prabhu Chawla Vs. State of Rajasthan and Anr. (2016) 16 SCC 30 and K.M. Ibrahim Vs K.P. Mohammed & Anr.- (2010) 1 SCC 798 in support of his contentions. 11. The scope of entertaining a petition under Section 482 Cr.P.C. is no more res integra and has succinctly been explained by the Hon'ble Apex Court of India in the following cases: 12. Municipal Corporation of Delhi vs. Ram Kishan Rohtagi &Ors. (1983) 1 SCC 1 : "6. It may be noticed that Section 482 of the present Code is the ad verbatim copy of Section 561-A of the old Code. This provision confers a separate and independent power on the High Court alone to pass orders ex debito justitiae in cases where grave and substantial injustice has been done or where the process of the Court has been seriously abused. This provision confers a separate and independent power on the High Court alone to pass orders ex debito justitiae in cases where grave and substantial injustice has been done or where the process of the Court has been seriously abused. It is not merely a revisional power meant to be exercised against the orders passed by subordinate courts. It was under this section that in the old Code, the High Courts used to quash the proceedings or expunge uncalled for remarks against witnesses or other persons or subordinate courts. Thus, the scope, ambit and range of Section 561A (which is now Section 482) is quite different from the powers conferred by the present Code under the provisions of Section 397. It may be that in some cases there may be overlapping but such cases would be few and far between. It is well-settled that the inherent powers under Section 482 of the present Code can be exercised only when no other remedy is available to the litigant and not where a specific remedy is provided by the statute. Further, the power being an extraordinary one, it has to be exercised sparingly. If these considerations are kept in mind, there will be no inconsistency between Sections 482 and 397(2) of the present Code. 7. The limits of the power under Section 482 were clearly defined by this Court in Raj Kapoor vs. State and Ors. (1980) 1 SCC 43 where Krishna Iyer J. observed as follows:- "Even so, a general principle pervades this branch of law when a specific provision is made: easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code." Hamida vs. Rashid @ Rasheed & Ors. (2008) 1 SCC 474 : "6. We are in agreement with the contention advanced on behalf of the complainant appellant. Section 482 Cr.P.C. saves the inherent powers of the High Court and its language is quite explicit when it says that nothing in the Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. A procedural Code, however exhaustive, cannot expressly provide for all time to come against all the cases or points that may possibly arise, and in order that justice may not suffer, it is necessary that every court must in proper cases exercise its inherent power for the ends of justice or for the purpose of carrying out the other provisions of the Code. It is well-established principle that every Court has inherent power to act ex debito justitiae to do that real and substantial justice for the administration of which alone it exists or to prevent abuse of the process of the Court. As held by the Privy Council in Emperor v. Khwaja Nazir Ahmad AIR 1945 PC 18 with regard to Section 561-A of the Code of Criminal Procedure, 1898 (Section 482 Cr.P.C. is a verbatim copy of the said provision) gives no new powers. It only provides that those powers which the Court already inherently possesses shall be preserved and is inserted, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Code and that no inherent power had survived the passing of the Act. 7. It is well-established principle that inherent power conferred on the High Courts under Section 482 Cr.P.C. has to be exercised sparingly with circumspection and in rare cases and that too to correct patent illegalities or when some miscarriage of justice is done. The content and scope of power under Section 482 Cr.P.C. were examined in considerable detail in Madhu Limaye v. State of Maharashtra AIR 1978 SC 47 and it was held as under : "The following principles may be stated in relation to the exercise of the inherent power of the High Court: (1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party; (2) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice; (3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code." 8. In State v. Navjot Sandhu (2003) 6 SCC 641 (para 29), after a review of large number of earlier decisions, it was held as under: "29........The inherent power is to be used only in cases where there is an abuse of the process of the Court or where interference is absolutely necessary for securing the ends of justice. The inherent power must be exercised very sparingly as cases which require interference would be few and far between. The most common case where inherent jurisdiction is generally exercised is where criminal proceedings are required to be quashed because they are initiated illegally, vexatiously or without jurisdiction. Most of the cases set out hereinabove fall in this category. It must be remembered that the inherent power is not to be resorted to if there is a specific provision in the Code or any other enactment for redress of the grievance of the aggrieved party. This power should not be exercised against an express bar of law engrafted in any other provision of the Criminal Procedure Code. This power cannot be exercised as against an express bar in some other enactment." 9. In Arun Shankar Shukla v. State of U.P. (1999) 6 SCC 146 the High Court had entertained a petition under Section 482 Cr.P.C. after an order of conviction had been passed by the Sessions Judge and before the sentence had been awarded and further proceedings in the case had been stayed. In appeal this Court set aside the order of the High Court after reiterating the principle that it is well settled that inherent power is not to be invoked in respect of any matter covered by specific provisions of the Code or if its exercise would infringe any specific provision of the Code. It was further observed that the High Court overlooked the procedural law which empowered the convicted accused to prefer statutory appeal against conviction of the offence and intervened at an uncalled for stage and soft-pedalled the course of justice at a very crucial stage of the trial. The order of the High Court was accordingly set aside on the ground that a petition under Section 482 Cr.P.C. could not have been entertained as the accused had an alternative remedy of an appeal as provided in the Code. The order of the High Court was accordingly set aside on the ground that a petition under Section 482 Cr.P.C. could not have been entertained as the accused had an alternative remedy of an appeal as provided in the Code. It is not necessary to burden this judgment with other decisions of this Court as the consistent view throughout has been that a petition under Section 482 Cr.P.C. cannot be entertained if there is any other specific provision in the Code of Criminal Procedure for redress of the grievance of the aggrieved party." 13. Thus, from the aforesaid judgements, it is clear that ordinarily this Court will not entertain a petition under Section 482 Cr.P.C. where the petitioner has other remedy available under the Code except under exceptional circumstances. 14. In the case of Prabhu Chawla (supra) relied by learned counsel for the petitioner, the question before the Hon'ble Apex Court was as to validity of rejection of petition filed by the appellants under Section 482 Cr.P.C. assailing the order of cognizance against them under Section 228A of the IPC and their summoning through bailable warrant as not maintainable in view of availability of remedy under Section 397 Cr.P.C. After considering earlier judgements of the Hon'ble Supreme Court of India in the case of Madhu Limaye vs. State of Maharashtra- AIR 1978 SC 47 , the Court proceeded to hold that there can be no total ban on the exercise of extraordinary jurisdiction conferred on a High Court under Section 482 Cr.P.C. if such exercise of power is necessary to give effect to any order under this Code or to prevent the abuse of process of the Court or otherwise to secure the ends of justice. 15. In the present case, no such exceptional circumstance exists which could warrant exercise of inherent jurisdiction by this Court under Section 482 Cr.P.C. instead of relegating the petitioner to invoke the well established regular mode of challenge to the judgement of conviction affirmed in appeal, by way of revision petition. The only exceptional circumstance, pointed out by the learned counsel for the petitioner to invoke the extraordinary jurisdiction of this Court under Section 482 Cr.P.C. instead of revisional jurisdiction is that the matter has been compromised between the parties. The only exceptional circumstance, pointed out by the learned counsel for the petitioner to invoke the extraordinary jurisdiction of this Court under Section 482 Cr.P.C. instead of revisional jurisdiction is that the matter has been compromised between the parties. It is trite that cognizance of the factum of settlement of dispute between the parties by way of compromise, can be taken by this Court in its revisional jurisdictional also and appropriate order can be passed. 16. The judgement of the Hon'ble Apex Court in the case of K.M. Ibrahim (supra), affirms the aforesaid view. In that case also, the appellant before the Hon'ble Supreme Court filed a revision petition against the judgement of conviction under Section 138 of the Act of 1881 affirmed in appeal and the matter went to the Hon'ble Supreme Court from the order dismissing the revision petition and in that case also, the judgement of conviction was set aside as the parties have settled their dispute amicably. 17. The Hon'ble Apex Court has, in the case of Damodar S. Prabhu (supra), held as under: "21. With regard to the progression of litigation in cheque bouncing cases, the learned Attorney General has urged this Court to frame guidelines for a graded scheme of imposing costs on parties who unduly delay compounding of the offence. It was submitted that the requirement of deposit of the costs will act as a deterrent for delayed composition, since at present, free and easy compounding of offences at any stage, however belated, gives an incentive to the drawer of the cheque to delay settling the cases for years. An application for compounding made after several years not only results in the system being burdened but the complainant is also deprived of effective justice. In view of this submission, we direct that the following guidelines be followed:- THE GUIDELINES (i) In the circumstances, it is proposed as follows: (a) That directions can be given that the Writ of Summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the court without imposing any costs on the accused. (b) If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the Legal Services Authority, or such authority as the Court deems fit. (c) Similarly, if the application for compounding is made before the Sessions Court or a High Court in revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of the cheque amount by way of costs. (d) Finally, if the application for compounding is made before the Supreme Court, the figure would increase to 20% of the cheque amount. 22. Let it also be clarified that any costs imposed in accordance with these guidelines should be deposited with the Legal Services Authority operating at the level of the Court before which compounding takes place. For instance, in case of compounding during the pendency of proceedings before a Magistrate's Court or a Court of Sessions, such costs should be deposited with the District Legal Services Authority. Likewise, costs imposed in connection with composition before the High Court should be deposited with the State Legal Services Authority and those imposed in connection with composition before the Supreme Court should be deposited with the National Legal Services Authority." 18. Therefore, mere settlement of dispute by way of compromise between the parties, cannot be reckoned as such exceptional circumstance under which this Court can exercise its inherent and extraordinary jurisdiction vide Section 482 Cr.P.C. against the order of conviction affirmed in appeal in view of availability of regular remedy of revision petition inasmuch as the factum of compromise can be taken into consideration by this Court under its revisional jurisdiction also. Resultantly, this criminal misc. petition is dismissed being not maintainable.