IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.1338 of 2003 Date of decision: 15th February, 2010 Yogesh Gupta … Petitioner Versus Darshan Kumar Khanna … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. A.P. Bhandari, Advocate for the petitioner. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present petitioner Yogesh Gupta had instituted a complaint against Darshan Kumar Khanna. In complaint filed under Section 138 Negotiable Instruments Act 1881, it was stated that allegedly cheque issued by Darshan Kumar Khanna for Rs.1,50,000/- on presentation was returned by the Bank on the ground that there were insufficient funds. On the basis of pre-summoning evidence led, Darshan Kumar Khanna was summoned to stand trial. He was tried by the Court of Sub Divisional Judicial Magistrate, Pehowa, who vide impugned judgment had acquitted the accused respondent. The acquittal of the accused respondent could only be challenged by filing appeal against acquittal accompanied by an application for grant of leave to appeal under Section 378(4) Cr.P.C. The memo of parties reveals that earlier petitioner had opted to file a criminal appeal but the office had raised an objection that criminal appeal is not within limitation. Another objection raised by the office was Criminal Revision No.1338 of 2003 that Criminal Misc. Application under Section 378(4) Cr.P.C. was not stamped. The complainant opted to score off the appeal and preferred the revision without complying with the objections raised by the Registry of this Court. The powers of appellate Court and revisional Court are entirely different. It was held in AIR 1968 Supreme Court 707 Mahendra Partap Singh vs. Sarju Singh and another, relying upon D.Stephens vs. Nosibolla, AIR 1951 SC 196, as under: “only two grounds are mentioned by this Court as entitling the High Court to set aside an acquittal in a revision and to order a retrial. They are that there must exist a manifest illegality in the judgment of the Court of Session ordering the acquittal or there must be a gross miscarriage of justice. In explaining these two propositions, this Court further states that the High Court is not entitled to interfere even if a wrong view of law is taken by the Court of Session or if even there is mis-appreciation of evidence. Again, in Logendranath Jha v. Polajlal Biswas, 1951 SCR 676 (AIR 1951 SC 316), this Court points out that the High Court is entitled in revision to set aside an acquittal if there is an error on a point of law or no appraisal of the evidence at all. This Court observes that it is not sufficient to say that the judgment under revision is “perverse” or “lacking in true correct perspective”. It is pointed out further that by ordering a retrial, the dice is loaded against the accused, because however much the High Court may caution the Subordinate Court, it is always difficult to re-weigh the evidence ignoring the opinion of the High Court. Again in K.Chinnaswamy Reddy v. State of Andhra Pradesh, 1963 (3) SCR 412 = (AIR 1962 SC 1788), it is pointed out that an interference in revision with an order of acquittal can only take place if there is a glaring defect of procedure such as that the Court had no jurisdiction to try the case or the Court 2 Criminal Revision No.1338 of 2003 had shut out some material evidence which was admissible or attempted to take into account evidence which was not admissible or had overlooked some evidence. Although the list given by this Court is not exhaustive of all the circumstances in which the High Court may interfere with an acquittal in revision it is obvious that the defect in the judgment under revision must be analogous to those actually indicated by this Court. As stated not one of these points which have been laid down by this Court, was covered in the present case. In fact on reading the judgment of the High Court it is apparent to us that the learned judge has re- weighed the evidence from his own point of view and reached inferences contrary to those of the Sessions judge on almost every point. This we do not conceive to be his duty in dealing in revision with an acquittal when Government has not chosen to file an appeal against it. In other words, the learned Judge in the High Court has not attended to the rules laid down by this Court and has acted in breach of them.” In Akalu Ahir v. Ramdeo Ram, AIR 1973 Supreme Court 2145 (V 60 C 352), Hon'ble apex Court observed as under: “This Court then proceeded to observe that the High Court is certainly entitled in revision to set aside the order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal, but it was emphasized that this jurisdiction should be exercised only in exceptional cases when “there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice.” In face of prohibition in Section 439(4), Cr.P.C., for the High Court to convert a finding of acquittal into one of conviction, it makes all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering re-trial. No 3 Criminal Revision No.1338 of 2003 doubt, in the opinion of this Court, no criteria for determining such exceptional cases which would cover all contingencies for attracting the High Court’s power of ordering re-trial can be laid down. This Court, however, by way of illustration, indicated the following categories of cases which would justify the High Court in interfering with a finding of acquittal in revision: (i) Where the trial Court has no jurisdiction to try the case, but has still acquitted the accused; (ii) Where the trial Court has wrongly shut out evidence which the prosecution wished to produce; (iii) Where the appellate Court has wrongly held the evidence which was admitted by the trial Court to be inadmissible; (iv) Where the material evidence has been over-looked only (either?) by the trial Court or by the appellate Court; and (v) Where the acquittal is based on the compounding of the offence which is invalid under the law. These categories were, however, merely illustrative and it was clarified that other cases of similar nature can also be properly held to be of exceptional nature where the High Court can justifiably interfere with the order of acquittal. In Mahendra Pratap Singh, (1968) 2 SCR 287 = (AIR 1968 SC 707) (supra) the position was again reviewed and the rule laid down in the three earlier cases reaffirmed. In that case the reading of the judgment of the High Court made it plain that it had re-weighed the evidence from its own point of view and reached inferences contrary to those of the Sessions Judge on almost every point. This court pointed out that it was not the duty of the High Court to do so while dealing with an acquittal on revision, when the Government had not chosen to file an appeal against it. “In other words” said this Court, “the learned Judge in the High Court has not attended to the rules laid down by this Court and has acted in breach of them.” 4 Criminal Revision No.1338 of 2003 Similar view was reiterated by Hon'ble apex Court in Bansi Lal and others vs. Laxman Singh, (1986) 3 Supreme Court Cases 444. Again, Hon'ble apex Court, in Ramu alias Ram Kumar and others, 1995 Supreme Court Cases (Cri) 181, held that it is well settled that the revisional jurisdiction conferred on the High Court should not be lightly exercised particularly when it has been invoked by a private complainant. In Vimal Singh vs. Khuman Singh and another, (1998) Supreme Court Cases (Cri) 1574 and in Bindeshwari Prasad Singh vs. State of Bihar, 2002 AIR (SC) 2907, the High Court has been reminded of its very limited jurisdiction in revision against acquittal. In view of the settled law, this Court has to examine the findings returned by the trial Court. The trial Court held that accused had alleged that cheque was tampered with. For this, the trial Court relied upon the evidence led by the accused and the evidence of the Documents and Handwriting Expert. This finding of fact cannot be examined by the revisional Court, especially when there is no patent illegality or irregularity which warrants interference. This Court can also not become oblivious of the fact that a Division Bench of this Court, which could entertain appeal against acquittal, while entertaining the application under Section 378(4) Cr.P.C. may not have condoned the delay in filing the appeal, a remedy which was available to the petitioner. Hence, the present revision petition is dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE February 15, 2010 rps 5