IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Misc.No.21437-38 of 2007 and Criminal Revision No.2105 of 2004 (O&M) DATE OF DECISION :12th December, 2010 Budh Parkash ...Petitioner Vs. Satwant Singh and another ...Respondents CORAM: HON’BLE MR.JUSTICE A.N.JINDAL Present : Mr.Vinod K.Kataria and Mr.Anand Kataria Advocates for the petitioner Mr.R.K.Girdhar, Advocate for respondent no.1 Mr.Amit Chaudhary, AAG, Punjab for the respondent-State -- A.N.JINDAL,J This Revision Petition has arisen out of the judgment dated 13.3.2004 passed by Additional Sessions Judge, Faridkot, acquitting the accused in a complaint case filed by Budh Parkash-complainant (hereinafter referred as ‘the complainant’) under Section 138 of the Negotiable Instruments Act 1881( in short the ‘Act’). The trial Court vide judgment dated 01.02.2003 had convicted and sentenced the accused respondent No.(hereinafter referred as respondent No.1) under Section 138 of the Act. However, on appeal, the Ist Appellate Court accepted the same and acquitted him of the charge so framed. Necessary facts for disposal of this Revision Petition are that Budh Parkash complainant, in the month April, 2000 had borrowed a sum or Rs.1,80,000/-. The respondent No.1 in order to discharge his liability issued a cheque bearing No.14597 dated Criminal Revision No.2105 of 2004 (O&M) -2- 12.6.2000 in favour of the complainant drawn on his bank account bearing No.CA 211 with Fraridkot-Bhatinda Kshetriya Gramin Bank for a sum of Rs.1,80,000/-. The cheque on presentment on 22.8.2000, was returned as dishonored on 24.8.2000. A legal notice was issued on 29.8.2000 upon the respondent No.1. Conseqently, the complaint was filed on 19.9.2000. After recording the preliminary evidence, the respondent No.1 was summoned to face the trial. He was also issued notice of accusation, provided opportunity to further cross examine the witnesses. He was also examined under Section 313 Cr.P.C. in which he denied all the allegations and further pleaded that he was one of the subscribers of a kitty committee being run by Azad Bindu Sharma, who had taken blank cheques as surety securing repayment of “committee” instalments and inspite of the fact that he (the accused) made repayment of all the committee instalments, the said Azad Bindu Sharma did not return the cheque, misused the same by getting the present complaint filed through the complainant who was a friend of Azad Bindu Sharma. In defence, the respondent No.1 examined DW-1 Jasbir Singh, DW-2 Amardeep Singh and DW-3 Anil Kumar Gupta. The trial resulted into conviction. However, the Appellate Court acquitted him with the following observations:- “The complainant had failed to establish if the notice was duly served upon the accused and has failed to establish if the cheque was issued in discharge of legally enforceable debt and the accused has been successful in rebutting the presumption.” - - - - - - Criminal Revision No.2105 of 2004 (O&M) -3- “The accused has been successful in proving the defence that he had given the cheques to Azad Bindu Sharma, which has been misused by the complainant. As regards the first ground, the complainant has submitted in his complaint, in para no. 4, that a legal notice dated 29.8.2000 was served upon the accused through Sh.V.K. Monga, Advocate and the same was sent by registered post as well as through UPC. He has also proved on record the notice (Ex.P-5), its receipt (Ex.P-6) and UPC (Ex.P-7). The trial Court has also observed that the UPC (Ex.P-7) carries the address of the accused, so as the copy of the notice (Ex.P- 5). The Court has not dealt with presumption under Section 114 of the Indian evidence Act, 1872 (for brevity ‘Evidence Act’) Illustration ‘F’ which reads as under:- The Court may presume- (f) That Common course of business has been followed in particular cases. As to illustration (f)-“The question is, whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by disturbances;” This illustration refers to the drawing presumption, if a letter is posted to the address on a correct address then the presumption would be that he has received the same unless its usual course was interrupted. May be through any calamity or by way of wrong address. But such is not the case set up by the accused. The Court instead of examining the presumption, has taken the wrong view of the matter without noticing that the complainant has stated that it was duly served upon the accused. The Court should also be oblivious of the fact that once, it is proved that the letter was duly addressed, stamped and posted, if not received Criminal Revision No.2105 of 2004 (O&M) -4- back unserved then the burden to prove would be upon the addressee who states that he had not received the same or it was never served upon him. The factum of service should have been in the knowledge of the accused and not the complainant and it was not sufficient for the accused to say that he had not received the notice rather he was obliged to rebut the presumption by pleading evidence that the notice never reached him. The Court has also not taken note of the other presumption with regard to drawer of the cheque that it was for consideration. Section 114 of the evidence Act, Illustration ‘C’, which read as under:- Section 114: “The Court may presume existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.” The Court may presume :- a)…………. b)…………. c) that a bill of exchange, accepted or endorsed for the good consideration; Similarly, Section 118 of the Act also recalls to the presumption which could be directed to a negotiable instrument which reads as under:- Presumption as negotiable instruments:- Until the contrary is proved, the following presumptions shall be made:- a) of consideration--that every negotiable instruments was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was Criminal Revision No.2105 of 2004 (O&M) -5- accepted, indorsed, negotiated or transferred for consideration; b) as to date—that every negotiable instrument bearing a date was made or drawn on such date; c) as to time of acceptance—that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity. d) as to time of transfer-that every transfer of a negotiable instrument was made before its maturity. e) as to order of indorsements—that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; f) as to stamps—that a lost promissory note, bill of exchange or cheque was duly stamped; g) that holder is a holder in due course—that the holder of a negotiable instrument is a holder in due course: Provided that, where the instrument has been contained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.” The aforesaid aspects were not taken into consideration by the trial Court, therefore, the judgment passed by the trial Court has been rendered as invalid and perverse granting interference by this Court at this revisional stage. The other contention raised by counsel for the petitioner is regarding the maintainability of the Revision Petition. Criminal Revision No.2105 of 2004 (O&M) -6- His argument is that this judgment of acquittal was subject to appeal as provided under Sub Section (4) of Section 378 of the Code of Criminal Procedure, 1973 and the Revision was not maintainable. Before I lay my hands to interpret the provisions of Section 378 of the Code, these are reproduced as under:- Appeal in case of acquittal.-Save as provided in sub- section (2), and subject to the provisions of sub-sections (3) and (5),- (a) the District Magistrate may , in any case, direct the Public Prosecutor to present an appeal to the Court of Sessions from an order of acquittal passed by a Magistrate in respect of cognizable and non-bailable offence; (b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision.] (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946) or by any other agency empowered, to make investigation into an offence under any Central Act other than this Code, [the Central Government may, subject to the provisions of sub-section (3), also direct the Public Prosecutor to present an appeal- (a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an order under Criminal Revision No.2105 of 20 04 (O&M) -7- clause (a)] or an order of acquittal passed by the Court of Session in revision.] (3) No appeal to the High Court] under sub-section (1) or sub- section (2) shall be entertained except with the leave of the High Court. (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. (5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal. (6) If, in any case, the application under sub-section (4) for the grant of special leave, to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2). On bare reading of the Section it transpires that State Govt. shall empower to present an appeal to the High Court from an original or Appellate order of an acquittal passed by any Court other than a High Court. This sub clause of sub section (I) of Section 378 relates to the cases as instituted by the State. Again sub clause (‘b’) of Section (2) of Section 378 empowers the State to file the appeal in the High Court against an original or appellate order of acquittal passed in cases in which the offences have been investigated by Delhi Special Police Establishment Act constituted under Delhi Special Police Establishment Act 1946 (25 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code and this appeal could be preferred by the Criminal Revision No.2105 of 2004 (O&M) -8- public prosecutor at the instance of the Central Govt. However, no provision relating to the appeal against appellate Court order of acquittal has been made under Sub Section (4) of 378 of the Code of Criminal Procedure, 1973. The said Section refers to the filing of the appeal in the High Court against the order of acquittal instituted upon complaint that too could be filed by special leave of the High Court. The Section though empowers the complainant to file an appeal in the High Court against the order of acquittal passed in any case instituted upon complaint, yet it does not refer to the appeal against order of acquittal passed by the appellate Court in cases instituted upon a complaint. Had there been any intention of the legislature to make the order of acquittal passed by the Appellate Court appealable before the High Court, then, like Sub Section (1) and Sub Section (2) of Section 378 a specific provision would have been inserted under Sub Section (4) of Section 378 of the Code of Criminal Procedure. Thus, the necessary corollary which could be drawn from the aforesaid observations, essentially, is that any order of acquittal passed by the Appellate Court could not be challenged by way of appeal but its legality could be put to scrutiny by preferring the Revision Petition. As such this Court is of the opinion that Revision Petition against the order of acquittal passed in an appeal by the Appellate Court in a case instituted upon a complaint is maintainable. For the aforesaid reasons this Revision Petition is accepted. The impugned judgment is set aside and the case is remitted back to the Appellate Court to decide the same afresh in accordance with law. Criminal Revision No.2105 of 2004 (O&M) -9- The parties are directed to appear before the Appellate Court on 27.01.2011. (A.N.JINDAL) December 12, 2010 JUDGE p.singh