IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 154 of 2011. Date of Decision: 7.11.2016. ______________________________[_____________________________ Chuni Lal ……...Petitioner/accused. Versus Indira Seth …....Respondent/Complainant. Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting1? For the petitioner: Mr. Neel Kamal Sharma, Advocate. For the respondent: Mr. Dinesh Thakur, Advocate. ________________________________________________________ Sandeep Sharma, J. (Oral) The present criminal revision petition filed under Section 397 read with Section 401 of the Cr.PC, is directed against the judgment dated 15.7.2011, passed by the learned Sessions Judge, Kullu, HP, in Criminal Appeal No. 27 of 2011, affirming the judgment of conviction and sentence dated 11.3.2011and 8.4.2011, respectively, passed by the learned Chief Judicial Magistrate, Kullu, HP, in Criminal Complaint No. 42-I/2008, whereby the accused-petitioner has been sentenced to undergo simple imprisonment for a period of six months and to pay fine of Rs. 10,000/- and compensation of Rs. 1,00,000/-, for having committed offence punishable under Section 138 of The Negotiable Instrument Act ( in short the Act). Whether reporters of the Local papers are allowed to see the judgment? Yes. - 2 - 2. Briefly stated facts as emerged from the record are that the respondent (hereinafter referred to as the complainant) filed a complaint under Section 138 of the Act before the learned Chief Judicial Magistrate, Kullu, HP, stating therein that the petitioner (hereinafter referred to as the accused) borrowed a sum of Rs. 1 lac from the complainant in the year, 2006 with the assurance that he would return the same and in order to discharge his liability of debt, he issued cheque No. 506966 amounting to Rs. 1 lac dated 17.11.2007 payable at State Bank of India, Manali Branch. However, fact remains that on presentation, cheque in question was dishonored vide memo dated 1.1.2008 with the remarks “Insufficient Funds”. The complainant got legal notice issued upon the accused advising him to make payment good in terms of the cheque but despite that accused failed to pay the amount and as such, complainant was compelled to file the complaint under the Act before the competent Court of law . 3. Learned Chief Judicial Magistrate, Kullu, HP, on the basis of evidence adduced on record, found the accused guilty of having committed offence under the Act and accordingly, convicted and sentenced him as per description already given above. 4. Being aggrieved and dis-satisfied with the judgment of conviction passed by the learned trial Court, the petitioner-accused filed appeal under Section 374 (3) of Cr.PC before the Court of learned - 3 - Sessions Judge, Kullu, HP, who vide judgment dated 15.7.2011, dismissed the appeal. Hence, this criminal revision petition before this Court. 5. Mr. Neel Kamal Sharma, Advocate, representing the petitioner-accused vehemently argued that the impugned judgments of conviction and sentence recorded by the Courts below are not sustainable as the same are not based upon the correct appreciation of evidence available on record as well as law and as such, same deserve to be quashed and set-aside. Mr. Sharma, strenuously argued that both the courts have fallen in grave error while not appreciating the material fact that cheque in question was presented to bank after limitation i.e. six months of its issuance and as such, erroneous findings have been recorded and great prejudice has been caused to the present petitioner accused, who is an innocent person. With a view to substantiate his aforesaid argument, Mr. Sharma, invited attention of this Court to the admission having been made by the complainant in her cross examination that cheque was issued in the year, 1994. He also invited attention of this Court to that portion of the statement, whereby the complainant stated that cheque was issued to the accused through his son not by her. In the aforesaid background, Mr. Sharma forcefully contended that it is apparent on record that depositions made by all the complainant witnesses being contradictory - 4 - could not be taken into consideration by the Court below while recording conviction. While specifically referring to the statements of complainant, Mr. Sharma, argued that there are lot of contradictions in her statement and as such, same could not be made basis by the courts below to record conviction of the petitioner accused. While concluding his arguments Mr. Sharma, in support of his contention, placed reliance on the following judgments in case titled MSR Leathers v. S. Palaniappan and Anr., (2013) 1 SCC 177, K. Subaramani vs. K. Damodara Naidu, (2015) 1 SCC 99 and Kumar Exports v. Sharma Carpets (2009) 2 SCC 513, passed by the Hon’ble Apex Court with regard to limitation, presumption as well as source of income of the complainant. 6. On the other hand, Mr. Dinesh Thakur, Advocate, representing the respondent-complainant supported the impugned judgment passed by the courts below. While referring to the judgments passed by both the Courts, Mr. Thakur, vehemently argued that same are based upon the correct appreciation of the evidence available on record and as such, in the given facts and circumstances of the case, no interference, whatsoever, of this Court, is warranted, especially in view of the fact that courts below have dealt with each and every aspect of the matter very meticulously. With a view to refute arguments having been made by Mr. Sharma, Mr. Dinesh Thakur, also - 5 - made this Court to travel through the statements of complainant witnesses as well as documentary evidence to demonstrate that it stands duly proved on record that cheque in question was issued by the complainant in lieu of discharge of his liability. He specifically invited attention of this court to the statement under Section 313 of Cr.PC made by the accused to demonstrate that at no point of time, there is denial, if any, with regard to the issuance of cheque. He also invited attention of this Court to the cheque Ext.CW-1/A .to suggest that cheque in question was dated 17.11.2007 and as such, there is no force in the contention of Mr. Sharma that cheque was presented beyond limitation. While concluding his arguments, Mr. Thakur, also reminded this Court that it has very limited powers while exercising its revisionary powers under Section 397 of the Cr.PC to re-appreciate the evidence, especially when courts below have returned concurrent findings on fact as well as law. In this regard, reliance is placed upon the judgment passed by Hon’ble Apex Court in case State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri (1999)2 Supreme Court Cases 452, wherein it has been held as under:- “In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the - 6 - evidence has already been appreciated by the Magistrate as well as Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice.” 7. I have heard learned counsel for the parties as well carefully gone through the record 8. True, it is that this Court has very limited powers under Section 397 Cr.PC while exercising its revisionary jurisdiction but in the instant case, where accused has been convicted and sentenced, it would be apt and in the interest of justice to critically examine the statements of the prosecution witnesses solely with a view to ascertain that the judgments passed by learned courts below are not perverse and same are based on correct appreciation of the evidence on record. 9. As far as scope of power of this Court while exercising revisionary jurisdiction under Section 397 is concerned, the Hon’ble Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court Case 241; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior - 7 - criminal court in its judicial process or illegality of sentence or order. The relevant para of the judgment is reproduced as under:- 8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order.” 10. During proceedings of the case, this Court had an occasion to peruse the entire evidence available on record, perusal whereof clearly suggests that cheque Ext.CW-1/A was dated 17.11.2007 payable at State Bank of India, Manali. Similarly, perusal of statement made by the accused under Section 313 Cr.PC also suggests that cheque amounting to Rs. 1 lac was issued by the accused to the complainant. Though in his statement, he has stated that date is wrong but unfortunately, there is nothing in the cross examination of the complainant from where it could be inferred that present petitioner accused was able to extract anything contrary to what she stated in her examination in chief. No suggestion worth the name qua the alleged tempering, if any, made by the complainant on the cheque, was put to the complainant, rather, accused in his statement under - 8 - Section 313 made before the Court, has candidly stated that he had issued undated cheque amounting to Rs. 1 lac and as such, this Court sees no force in the contention put forth by Mr. Sharma that the cheque was presented to the bank beyond limitation. 11. True, it is that in her examination in chief as well as cross examination, the complainant has admitted that the cheque in question was issued in the Year, 1994 but at the cost of repetition, it may be observed at this stage that no suggestion worth the name was put to the complainant qua the date of issuance of the cheque. Once petitioner accused in his statement under Section 313 Cr.PC admitted the factum of issuance of undated cheque, it was incumbent upon him to put question to the complainant that in fact cheque was issued in the Year, 1994 and she presented the same after 13 years. To ascertain the genuineness and correctness of the arguments made by Mr. Sharma, this Court perused the entire cross examination conducted upon the complainant, perusal whereof nowhere suggests that the petitioner was able to extract anything contrary to what she stated in her examination in chief, rather, this Court after perusing the statement in its entirety, is of the view that the complainant has been very very candid, specific and straightforward while stating that cheque was issued in her name by the petitioner with a view to discharge his liability. Similarly, perusal of cheque Ext.CW1/A, clearly suggests that cheque - 9 - was dated 17.11.2007 and there is no tempering. Perusal of Ext.CW1/B i.e. memo issued by the State Bank of India, Manali, clearly suggests that cheque was presented within a period of six months of its date of issuance and same was dishonored on account of “insufficient funds”. 12. This Court after perusing the aforesaid documents as well as statement having been made by the complainant is unable to accept the contention put forth by Mr. Sharma that cheque was presented beyond limitation. If at all the contention/argument made by the accused is accepted that cheque in question was issued in the year, 1994, there is no suggestion in the cross examination that cheque was issued in 1994 and the complainant failed to deposit the same within six months from the date of issuance i.e. 1994, meaning thereby, cheque in question was actually issued in 17.11.2007 and same was presented well within the prescribed time. 13. Now coming to the another contention put forth on behalf of the complainant that there is no document/evidence on record that what was the source as far as income of the complainant is concerned. Since issue qua the source of income was raised by the petitioner accused, onus was upon him to prove the same by leading cogent and convincing evidence. Once the petitioner himself has admitted the factum of issuance of cheque amounting to Rs. 1 lac, probably, there is/was no occasion for him to raise issue, if any, with - 10 - regard to source of income, as has been discussed above. While referring to the statement made under Section 313 Cr.PC, petitioner himself has admitted the factum of issuance of cheque amounting to Rs. 1 lac and as such, this Court is unable to accept the contention put forth on behalf of the petitioner-accused that the complainant had no source of income. 14. Similarly, this Court with a view to ascertain the genuineness and correctness of this aforesaid contention, also referred to the statement as well as cross examination conducted upon the complainant, perusal whereof, nowhere suggests that any suggestion was put to the complainant with regard to source of income, if any, and as such, at this stage, no such issue with regard to source of income can be allowed to be raised. As far as Judgment titled K. Subaramani vs. K. Damodara Naidu, (supra) passed by the Hon’ble Apex Court is concerned, same is not applicable in the present facts and circumstances of the case because in that case, accused specifically claimed that no amount was paid by the complainant. 15. After bestowing my thoughtful consideration to the pleadings as well as the evidence adduced on record, I have no hesitation to conclude that by leading cogent and convincing evidence, complainant was able to prove beyond reasonable doubt that cheque in question was issued by the petitioner in favour of the - 11 - complainant, who presented the same well within a period of limitation and same was returned by the Bank on account of insufficient funds”. This Court after perusing the record as well as judgments passed by the courts below is also satisfied and convinced that before initiating the proceedings under Section 138 of the Act, the complainant had complied with all the codal requirements as envisaged under the Act and there is no scope whatsoever, to interfere with the well reasoned judgments passed by the courts below, which otherwise appear to be based upon correct appreciation of material adduced on record. 16. Consequently in view of the above, the judgments passed by the courts below are upheld and the instant criminal revision petition is dismissed. Petitioner-accused is directed to surrender himself before the learned trial Court forthwith to serve the sentence as awarded by learned trial Court, vide separate order dated 8.4.2011. Needless to say that order dated 23.8.2011, passed by this Court, whereby sentence imposed by the Court below was suspended, shall stand vacated automatically. 7th November, 2016 (Sandeep Sharma), manjit Judge.