N HIGH COURT OF CHHATTISGARH AT BILASPU [SB Hon’ble Mr T P Sharma,J l Cr.M.P. 440/2007 Petitioner Aalok Kedia Versus Respondents Manoj Kumar Agrawal and another. K ORDER BE POSTED FOR PRONOUNCEMENT ON {-8-2008 Sdl- ‘§:"“‘ T P Sharma Judge 1 ‘ ' [S Hon’b Mr...Sharma,J. B: le TP‘| Cr.M.P. No. 440/2007 PETITIONER Aalok Kedia aged 40 years S/o Shri Motilal RevisionistlAccused Kedia, Through Gopal‘ Rice Mill, Near Archana Talkies, Kharsia, Police Station Kharsia, Tehsil Kharsia, District Raigarh, CG. VERSUS RESPONDENTS 1. Manoj Kumar Agrawal, aged 38 years, S/o NON APPLICANTS Shri Hariram Agrawal, R/o Seccnd Flour ‘Mill, Lal Tanki, Bohidarpara, Raigarh, District Raigarh, CG. 2. State of Chhattisgarh Through the District Magistrate. Raigarh, District Raigarh (CG) PETITION UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE‘ 1973 Shri Rajiv Shrivastava and Shri V.C. Ottalwar counsel for the applicant. Smt. Indira Tripathi counsel for respondent Noi1. Shri N. Naha Roy Panel Lawyer for the respondent No.2. o R D E R (y6.8.2oos) This petition is directed against the order dated 8.8.2007 passed by the Sessions Judge, Raigarh, in Criminal Revision No. 55/2007 affirming the order dated 31.1.2007 passed by the Judicial Magistrate First Class, Raigarh’ in Complaint Case No. 136/2007 whereby learned Magistrate took cognizance and issued process under Section 204 of the Code of Criminal Procedure (hereinafter referred to as Code). 2. The order is ‘challenged on the ground that the Courts below have committed a grave irregularity by taking cognizance of the complaint for the offence punishable under section 138 of the Negotiable instrument Act (for short the Act) without considering the question of limitation, issuance of cheque, absence of pleadings relating to the acknowledgement and also the fact that the dispute is purely of civil nature. 3. Heard Shri Rajiv Shrivastava and Shri V.C. Ottalwar counsel for the applicant, Smt. Indira Tripathi counsel for respondent No.1 and Shri N. Naha Roy Panel Lawyer for the respondent No.2 and perused the order impugned, complaint and also the order passed by the trial Court. 4, lt is argued by the counsel for the petitioner that the complaint filed before the trial Court was barred by limitation and the Revisional Court was not L competent to take additional documents/evidence although according to paragraph 9 of the order impugned counsel for the petitioner has conceded the grounds except one that the liability which was required to be discharged is not legally enforceable debt or liability. The Revisional Court has not considered the grounds raised by the petitioner and thus committed an illegality by rejecting the' ' petition lt is also argued that although according to paragraph 9 of the order Impugned counsel appearing for the petitioner conceded before the ReVisional Court that he would not press the other grounds taken in the petition except the pomt that the alleged cheque was not for legally enforceable debt or liability However in this petition he has raised the other grounds also and he is permitted to argue on those pomts. .5. v, Counselforthe petitionerfurtherarguedthatthe scope ofinterferenceis limited and the Revisional court is not competent to take additional v documents/eVIdence The object of the reVI5ional jurisdiction under section 401 of ' the Code is to confer power upon superior criminal Courts a kind of paternal or superVisory Jurisdiction in order to correct miscarriage of justice arismg from misconception of law irregularity of procedure neglect of proper precaution or apparent harshness of treatment which has resulted, on the one hand or on the other hand in some undeserved hardship to individuals. Reliance is placed on the \ decision of the Apex Court in the matter of Janata Dal V. H.S. Choudhary 2 which it has'been held that the scope of revisional jurisdiction is limited and the revisional jurisdiction is a kind of paternal or supervisory jurisdiction in order to correct the miscarriage of justice arising from misconception of law, irregularity of procedure. Relevant portion is extracted below: “The Object of the revisional jurisdiction under Section 401 is to ' confer upon superior criminal courts — a kind of paternal or 'supen/isory jurisdiction — in order to correct miscarriage ofjustice frismg from misconception of law irregularity of procedure neglect of proper precaution or apparent harshness of treatment which has resulted on the one hand or on the other hand in some undeserved hardship to indIVIdua/s. The controlling power of the High Court is discretionary and it must be exercised in the interest of justice with regard to all facts and circumstances of each particular case, anxious attention being given to the said facts and circumstances which vary greatly from case to case” 2 (1992)4 scc 305 :‘ a ' x 4 v’a Further reliance is placed on the decision of the Apex Court in the matter of 3 in which it has been held that the revisional jurisdiction is a kind or paternal or supervisory jurisdiction. Relevant portio reads thus: “incidentally the object of the revisional jurisdiction as envisaged under Section 401 was to confer upon superior criminal courts a kind of paternal or supervisory jurisdiction, in order to correct miscarriage of justice arising from misconception of law, irregularity of proceure, neglect of proper precautions of (sic or) apparent harshness of treatment which has resulted on the one hand in some injury to the du maintenance of law and order, or on the other hand in som undeserved hardship to individuals. (See in this context the decision of this Court n Janata Dal V. H.S. Chowdhary) The main question which the High Coult has to consider in an application in revision is whether substantia/justice has been done. If however, the same has been an appeal, the applicant would be entitled to demand an adjudication upon all questions of fact or law which h wishes to raise, but in revison the only question is whether the Court should interfere in the interests ofjustr‘ce. Where the court concerned does not appear to have committed any illegality or material irregularity or impropriety in passng the impugnedjudgment and order, the revision cannot succeed. If the impugned order apparently is presentable, without an such infirmity which may renr it completely perverse or unacceptable and when there is no failure ofjustice, interference cannot be had in exercise of revisional jurisdiction." Reliance is also placed on the decision of the Apex Court in the matter of . 4 in which it has been held that the complanant must satisfy the Court that the ingredients of the offence punishable under section 138 of the Act exist. Relevant portion is extracted blow: “ln terms of Section 138 of the Act, a compaint petition alleging an offence thereto must demonstrate that the following ingredients exist that: (i) a cheque was issued; (ii) the same was presented; (iii) but, it was dishonoured; (iv) a notice in terms of the said provision was sewed on the person sought to be made liable; and 3 (2002) 5 SCC 659 4, (2007) 2 SCC (C11,) 192 Jaqannath Choudhary and others V. Ramayan Singh and another n d e e i e i i y de S.M.S. Pharmaceuticals Ltd. V. Neeta Bhalla and another i e l ma: despite service of notice, neither any payment was made nor other obligations, if any, were complied with within fifteen days from the date of receipt of the notice.” 6. On the other hand the order impugned is supported on behalf of the respondents. it is argued on behaif of respondent No. 1 that the Revisional Court is competent to take additional document/evidence. The petitioner himseif conceded the other points except that the iiabiiity was not iegaiiy enforceable, therefore, he is precluded to raise the other grounds before this Court. 7. This is a petition filed under section 482 of the Code. interference in exercise of the inherent jurisdiction under section 482 of the Code can be made in rarest of rare cases only with a view to give effect to the order under the Code to prevent abuse of process of the Court and to othenlvise secure the ends ofjustice. 8. This petition is filed for invoking the inherent jurisdiction after dismissal of revision. the inherent powers should be used sparingly for achieving the object mentioned in Section 482 of the Code. The powers under section 482 of the Code are not unlimited. ln the matter ofk Arun Shanker Shukla V. State of U.P. 5 the Apex Court has held as under: “it is true that under Section 482 of the Code, the High Court has inherent powers to make such orders as may be necessary to give effect to any order under the code or to prevent the abuse of process of any Court or otherwise to secure the ends of justice. But the expressions “abuse of the process of law” or to secure the ends of justice” do not confer un/irnited jurisdiction on the High Court and the a/Ieged abuse 0f the process of IaW or the ends of justice could only be secured in accordance with law including procedural law and not otherwise. Further, inherent powers are in the nature of extraordinary powers to be used sparingly for achieving the object mentioned in Section 2182 of the Code in cases where there is no express provision empowering the High Court to achieve the said object. It is well neigh 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. " While dealing with the provisions of Section 482 of the Code in the matter of State of Puniab Vs. Kasturi Lal 6 the Apex Court has held asunder: K 5 AIR 2001 SC 2554 6 2004 CrLJ 3866 ‘§_ “Exercise of power under S. 482 of (he Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, name/y (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends ofjustice. It is neither possible nor desirable to lay down any Inflexib/e rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise, Courts therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All Courts. whether civil or criminal possess. in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration otjustice. While exercising powers under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do reai and substantial justice for the administration of which alone Courts exist". The Apex Court in the matter of State Through Speciai Cell, New Deihi V. v'ot Sandhu alias Afshan Guru and others 7 has heid that - “Section 482 of the Criminai Procedure Code starts with the words “Nothing in this Code”. Thus the inherent jurisdiction of the High Court under Section 482 of the Criminal procedure Code can be exercised even when there is a bar under Section 397 or some other provisions of the Criminal Procedure Code. However as is Nal set out in Satya Narayan Sharma case this power cannot be exercised if there is a statutory bar in some other enactment. If the order assailed is purely of an interlocutory character, which could be corrected in exercise of revisional powers or appellate powers the High Court must refuse to exercise its inherent power. The inherent power is to be used only in cases where there is an abuse of the process of the court or where interferences absolutely necessary for securing the ends ofjustice. The inherent __._,_,_,._"———'- 7 (2003) 6 scc 64x power must be exercised veW sparing/y as cases which require interference wou/d 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 specific provision in the code or any other enactment for redress of the grievance cf 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 exercise as against an express bar in some other enachnent” 9. In order to appreciate the contention of the learned counsel for the parties i have to examine the material available on record in the light of the aforesaid Iegal proposition. 10. According to the order impugned the respondent No.1 filed a complaint against the petitioner for the offence punishable under section 138 of the Act before the Judicial Magistrate First Class. After preliminary inquiry learned Magistrate took cognizance and issued process against the petitioner in accordance with section 204 of the Code. The petitioner preferred the revision against the said order of the learned Magistrate. During the course of hearing one document i.e. the revival letter of loan dated 14,10.2005 was filed before the revisional Court by the respondent No.1 which was taken on record and the revisional Court considered the same. 11. The first ground for consideration before this Court is whether the revisional Court is competent to take additional evidence? Revision was preferred before Sessions Judge in accordance with ~the provisions of Section 397 of the Code. Sessions Judge is competent to call for the records of the lower Court in exercise of the revisional powers. The powers of the Sessions Judge while exercising the revisional jurisdiction are described in Section 399 of the Code which reads as under: ”S. 399. (1) In the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under sub— section (1) of Section 401. (2) Where any proceeding by way of revision is commenced before a Sessions Judge under sub~section (1), the provisions of sub-sections ‘35\ (2), (3), (4) and (5) of Section 401 shall, so far as may be, app/y to such proceeding and references in the said sub-sections to the High Courf shall be construed as references to the Sessions Judge. (3) Where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other Court.” Thus in accordance with sub section (1) of Section 399 of the Code the Sessions Judge who has caned for the records of the tower Court is empowered to exercise all or any of the powers exercisable by the High Court under sub section 1 of Section 401 of the Code. Section 401 of the Code gives power to the High Court while exercising revisional jurisdiction to exercise any of the powers conferred on the courts of appeal by sections 386, 389, 390 and section 391 or on a Court of Session by Section 307 of the Code. Section 401 of the Code reads as under: “S. 401: (I) In the case of any proceeding the record of which has been called for by itself or which othen/vise comes to its know/edge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 392. (2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pieader in his own defence. (3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. (4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. (5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests ofjustice so do to, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly.” While dealing with any appeal the appellate Courts are invested with the powers to take further evidence or direct it to be taken in accordance with Section 391 of the Code. Section 391 reads as follows: S. 391: (1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direot it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate. (2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal. (3) The accused or his pleader shall have the right to be present when the additional evidence is taken. (4) The taking of evidence under this section shall be subject to the provisions of Chapter XXill, as if it were an inquiry." .Thus from the plain reading cf sub section 1 of section 399 of the Code it is clear that the Sessions Judge may exercise all or any of the powers which can be exercised by the High Court under sub section 1 of section 401 of the Code when the record has been called for by himself and section 401 of the Code confers the powers on the High Court to exercise the powers of the appellate Court conferred by section 391 of the Code which empowers the appellate Court to take additional evidence if necessary. From the combined reading of sections 391, 401 (1), 399 and 307 of the Code it is clear that the Sessions Judge who has called the record of the lower Court may exercise the powers conferred on the appellate Court under section 391 of the Code and he is competent to take the additionai evidence. Revisional jurisdiction as envisaged in Section 401 of the Code confers upon the superior Courts a kind of paternal or supervisory jurisdiction, in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions apparent harshness of treatment which has resulted on the one hand in some injury to the due maintenance of law and order, or on the other hand in some undeserved hardship to individuals. But while dealing with the paternal or supervisory jurisdiction the revisional Courts are empowered to take additional evidence with an object to achieve the aforesaid goal. The very purpose of invoking revisional jurisdiction is to satisfy itself or himself as to the correctness, legality or propriety of any finding, sentence, or order, recorded or passed, and as to the irregularity of any proceedings of such inferior Court. Therefore, while exercising the revisional jurisdiction the revisional Courts are required to examine correctness, legality or propriety of any finding, sentence, or order, recorded or passed by the inferior court. Revisionai Courts are not precluded from receiving or taking the additional evidence with a view to achieve the aforesaid goal. This power should be used sparingly in rarest or rare cases and not as a routine manner or to benefit any party. 13. In the instant case, the revisional court has accepted the document of alleged revival filed on behalf of respondent No.1 which was according to it a substantial document relating to the legally enforceable liability. Revisional Court was under obligation to ensure substantial justice to be done in discharge of paternal or supervisory duty. When a document of revival of loan is executed by the petitioner then taking the said document on record at the stage of revision is not either unjust or improper. The revisional Court was competent to take document as additional evidence to cause substantial justice to the parties. No illegality or infirmity has been committed by the revisional Court by taking the additional document/ evidence on record. i do not find any force in the argument of the learned counsel for the petitioner so far this aspect of the matter is concerned. 14. As regards absence of ingredients of legally enforceable liability is concerned, the complainant is required to show prima facie case that a cheque which was dishonoured was relating to discharge of legally enforceable debt or liability in terms of Section 138 of the Act. 15. In the instant case, according to the complaint, cheque was issued for the discharge of liability but it appears from the complaint and paragraph 10 of the impugned order that the document for revival of‘promissory note was executed by the applicant on 14.10.2005. Limitation is not a pure question of law but a mixed question of fact and law that whether the document was for legally enforceable liability and the promissory note was revived or not. But after taking document of revival said to be executed by the petitioner, on record it is difficult to say that the document is not for legally enforceable liability. Thus there is no force in the second submission also. 16‘ During the course of argument, learned counsel for the petitioner submitted that although according to paragraph 9 of the impugned order, the petitioner conceded all the grounds except one. The other grounds are required to be considered while invoking the inherent jurisdiction under section 482 of the Code. Admittedly the petitioner was competent to raise the grounds mentioned in his revision petition or the grounds available before the revisional Court but in stead of raising the same and specifically conceding that they only want to press one ground, raising of other grounds before this Court is not justified. The petitioner is required to establish that whether he has a specific case not covered under any other provision except the provision undersection 482 of the Code to , ‘ ”p secure the ends of jUstice or with ‘a View to give effect to the order under the Code to prevent abuse of process of the.Courf. 17. For the foregoing reasons, i do not find any \illegality or infirmity in the impugned order which calis for interference by this Court. liable to be 17. Consequentiy, the petition being without substance is dismissed. It is hereby dismissed. J’a ’ 5’13 Sou- E T. P. Sherma‘ \ it Judge '