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2022 DIGILAW 757 (ALL)

Om Prakash Sharma v. State of U. P.

2022-05-12

RAJ BEER SINGH

body2022
JUDGMENT : Raj Beer Singh, J. 1. The present petition under Article 227 of the Constitution of India has been filed for setting aside the impugned summoning order dated 22.1.2020, passed by the CJM, Hapur in Case No. 2826 of 2019, Shyam Sunder Agarwal vs. Om Prakash, under Section 138 N.I. Act PS Pilkhuwa, District Hapur, whereby the petitioner was summoned for offence under Section 138 N.I. Act, and also to set aside the order dated 9.8.2021 passed by the Sessions Judge, Hapur in Criminal Revision No. 43 of 2021 (Om Prakash Sharma vs. State U.P. and Another), by which the criminal revision filed by the petitioner has been dismissed. 2. Heard learned counsel for the petitioner and learned A.G.A. for the State and perused the record. 3. It has been argued by learned counsel for the petitioner that both the impugned orders are against the facts and law and thus, liable to be set aside. The main contention of learned counsel for petitioner is that the opposite party No. 2 has filed the complaint against petitioner alleging that he has lent an amount of Rs 7 lakhs to petitioner on interest and that petitioner has to pay the interest @ 18% per annum and thus, the purpose of lending the amount was not lawful. It was submitted that as the opposite party No. 2 was not registered under U.P. Money Lending Act, thus he was not authorised to lend money on interest. It was submitted that in view of these facts and circumstances, the complaint filed by the opposite party No. 2 was not maintainable but the Court below did not consider these aspects of the matter and that the impugned summoning order was passed in an arbitrary manner. Similarly the revisional Court also failed to consider these facts and circumstances of the case and dismissed the revision and thus, both the impugned orders are liable to be set aside. 4. Learned AGA argued that impugned orders have been passed on the basis of material on record after due consideration of the facts of the case and there is no illegality or perversity in the impugned orders. It is submitted that the petitioner has failed to show that he did not issue the cheque in question to the opposite party No. 2 and that said cheque was dishonoured due to insufficiency of funds in the account of petitioner. It is submitted that the petitioner has failed to show that he did not issue the cheque in question to the opposite party No. 2 and that said cheque was dishonoured due to insufficiency of funds in the account of petitioner. It was submitted that both the Courts below have considered entire facts in correct perspective and there is no illegality or perversity in the impugned orders. 5. I have considered rival submissions and perused the record. 6. At the outset it may be stated that in supervisory jurisdiction of this Court over subordinate Courts, the scope of judicial review is very limited and narrow. It is not to correct the errors in the orders of the Court below but to remove manifest and patent errors of law and jurisdiction without acting as an appellate authority. This power involves a duty on the High Court to keep the inferior Courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. But this power does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice, where grave injustice would be done unless the High Court interferes. 7. In D.N. Banerji vs. P.R. Mukherjee, AIR 1953 SC 58 , the Hon'ble Apex Court said: ''Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under articles 226 and 227 of the Constitution to interfere.'' 8. Similarly in Waryam Singh and Another vs. Amarnath and Another, AIR 1954 SC 215 , this power is to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors. In Mohd. Yunus vs. Mohd. Mustaqim and Others, AIR 1984 SC 38 , the Court held that this Court has very limited scope under Article 227 of the Constitution and even the errors of law cannot be corrected in exercise of power of judicial review under Article 227 of the Constitution. In Mohd. Yunus vs. Mohd. Mustaqim and Others, AIR 1984 SC 38 , the Court held that this Court has very limited scope under Article 227 of the Constitution and even the errors of law cannot be corrected in exercise of power of judicial review under Article 227 of the Constitution. The power can be used sparingly when it comes to the conclusion that the Authority/Tribunal has exceeded its jurisdiction or proceeded under erroneous presumption of jurisdiction. The High Court cannot assume unlimited prerogative to correct all species of hardship or wrong decision. For interference, there must be a case of flagrant abuse of fundamental principles of law or where order of the Tribunal, etc. has resulted in grave injustice. 9. For interference under Article 227, the finding of facts recorded by the Authority should be found to be perverse or patently erroneous and de hors the factual and legal position on record. (See: Nibaran Chandra Bag vs. Mahendra Nath Ghughu, AIR 1963 SC 1895 , Rukmanand Bairoliya vs. State of Bihar and Others, AIR 1971 SC 746 , Gujarat Steel Tubes Ltd. vs. Gujarat Steel Tubes Mazdoor Sabha and Others, AIR 1980 SC 1896 , Laxmikant R. Bhojwani vs. Pratapsing Mohansingh Singh Pardeshi, (1995) 6 SCC 576 , Reliance Industries Ltd. vs. Pravinbhai Jasbhai Patel and Others, (1997) 7 SCC 300 , M/s. Pepsi Food Ltd. and Another vs. Sub-Judicial Magistrate and Others, (1998) 5 SCC 749 and Virendra Kashinath Ravat and Others vs. Vinayak N. Joshi and Others, (1999) 1 SCC 47 ). 10. In fact it is well-settled that power under Article 227 is of the judicial superintendence which cannot be used to up-set conclusions of facts, howsoever erroneous those may be, unless such conclusions are so perverse or so unreasonable that no Court could ever have reached them. (See: Rena Drego vs. Lalchand Soni and Others, (1998) 3 SCC 341 , Chandra Bhushan vs. Beni Prasad and Others, (1999) 1 SCC 70 , Savitrabai Bhausaheb Kevate and Others vs. Raichand Dhanraj Lunja, (1999) 2 SCC 171 and Savita Chemical (P) Ltd. vs. Dyes and Chemical Workers' Union and Another, (1999) 2 SCC 143 ). 11. It is also to be kept in mind that power under Article 227 of the Constitution is not in the nature of power of appellate authority enabling re-appreciation of evidence. 11. It is also to be kept in mind that power under Article 227 of the Constitution is not in the nature of power of appellate authority enabling re-appreciation of evidence. It should not alter the conclusion reached by the Competent Statutory Authority merely on the ground of insufficiency of evidence. (See: Union of India and Others vs. Himmat Singh Chahar, (1999) 4 SCC 521 ). 12. In Mohan Amba Prasad Agnihotri vs. Bhaskar Balwant Aheer, AIR 2000 SC 931 , the Court said that jurisdiction of High Court under Article 227 of the Constitution is not appealable but supervisory. Therefore, it cannot interfere with the findings of fact recorded by Courts below unless there is no evidence to support findings or the findings are totally perverse. In Indian Overseas Bank vs. Indian Overseas Bank Staff Canteen Workers' Union, (2000) 4 SCC 245 , the Court observed that it is impermissible for the Writ Court to re-appreciate evidence liberally and drawing conclusions on its own on pure questions of fact for the reason that it is not exercising appellate jurisdiction over the awards passed by Tribunal. The findings of fact recorded by the fact finding authority duly constituted for the purpose ordinarily should be considered to have become final. The same cannot be disturbed for the mere reason of having based on materials or evidence not sufficient or credible in the opinion of Writ Court to warrant those findings. At any rate, as long as they are based upon some material which are relevant for the purpose no interference is called for. Even on the ground that there is yet another view which can reasonably and possibly be taken the High Court cannot interfere. In Union of India vs. Rajendra Prabhu, (2001) 4 SCC 472 , the Court observed that the High Court, in exercise of its extraordinary powers under Article 227 of the Constitution, cannot re-appreciate the evidence nor it can substitute its subjective opinion in place of the findings of Authorities below. 13. In Surya Dev Rai vs. Ram Chander Rai and Others, (2003) 6 SCC 675 , it was held that in exercise of supervisory power under Article 227, High Court can correct errors of jurisdiction committed by subordinate Courts. 13. In Surya Dev Rai vs. Ram Chander Rai and Others, (2003) 6 SCC 675 , it was held that in exercise of supervisory power under Article 227, High Court can correct errors of jurisdiction committed by subordinate Courts. It also held that when subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or jurisdiction though available is being exercised in a manner not permitted by law and failure of justice or grave injustice has occasioned, the Court may step in to exercise its supervisory jurisdiction. However, it also said that be it a writ of certiorari or exercise of supervisory jurisdiction, none is available to correct mere errors of fact or law unless error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or disregard of the provisions of law; or, a grave injustice or gross failure of justice has occasioned thereby. 14. In Jasbir Singh vs. State of Punjab, (2006) 8 SCC 294 , the Court said: ''...while invoking the provisions of Article 227 of the Constitution, it is provided that the High Court would exercise such powers most sparingly and only in appropriate cases in order to keep the subordinate Courts within the bounds of their authority. The power of superintendence exercised over the subordinate Courts and tribunals does not imply that the High Court can intervene in the judicial functions of the lower judiciary. The independence of the subordinate Courts in the discharge of their judicial functions is of paramount importance, just as the independence of the superior Courts in the discharge of their judicial functions.'' 15. In Shalini Shyam Shetty and Another vs. Rajendra Shankar Patil, (2010) 8 SCC 329 , the Court said that power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court. The above authority has been cited and followed in Kokkanda B. Poondacha and Others vs. K.D. Ganapathi and Another, AIR 2011 SC 1353 and Bandaru Satyanarayana vs. Imandi Anasuya, (2011) 12 SCC 650 . 16. The above authority has been cited and followed in Kokkanda B. Poondacha and Others vs. K.D. Ganapathi and Another, AIR 2011 SC 1353 and Bandaru Satyanarayana vs. Imandi Anasuya, (2011) 12 SCC 650 . 16. In T.G.N. Kumar vs. State of Kerala and Others, (2011) 2 SCC 772 , the Court said that power of superintendence conferred on the High Court under Article 227 of the Constitution of India is both administrative and judicial, but such power is to be exercised sparingly and only in appropriate cases in order to keep the subordinate Courts within the bounds of their authority. In Commandant, 22nd Battalion, CRPF and Others vs. Surinder Kumar, (2011) 10 SCC 244 , Hon'ble Apex Court referring to its earlier decision in Union of India vs. R.K. Sharma, (2001) 9 SCC 592 , observed that only in an extreme case, where on the face of it there is perversity or irrationality, there can be judicial review under Articles 226 or 227. 17. Keeping the settled position of law in mind, in the instant case it may be seen that the contention of learned counsel for petitioner is that the opposite party No. 2 has alleged that he has lent an amount of Rs 7 lakhs to petitioner on interest and that petitioner has to pay the interest @ 18% per annum on that amount and thus, the purpose of lending the amount to the petitioner was not lawful, as the opposite party No. 2 was not registered under U.P. Money Lending Act. Perusal of impugned summoning order shows that the trial Court has considered all relevant aspects of the matter. That order was challenged in revision vide criminal revision No. 43 of 2021 and that revisional Court has also considered all relevant facts of the matter and dismissed the revision. No patent illegality or perversity could be shown in the impugned orders. The defence of petitioner can hardly be examined at this stage, particularly in these proceedings under Article 227 of the Constitution. Considering entire facts and material, this Court does not find any such patent error, material illegality or error of jurisdiction so as to invoke powers under Article 227 of Constitution of India. The petition has no force and thus liable to be dismissed. 18. The petition is dismissed.