Criminal Revision No.1724 of 2010

19th March, 2013

Petitioner Counsel: L.M. SINGH, JAI RAJ SINGH TOMAR, KAVITA TOMAR
Respondent Counsel: ARUN KUMAR

Cases Cited:
State of Kerala Vs. Putthumana Illath Jathavedan Namboodiri, 1999 ALL MR (Cri) 517 (S.C.)=AIR 1999 SC 981 [Para 7]
Jagannath Chaudhary Vs. Ramayan Singh, AIR 2002 SC 2229 [Para 8]
Munna Devi Vs. State of Rajasthan & Ors., 2002(1) ALL MR 646 (S.C.)=AIR 2002 SC 107 [Para 8]
State of Karnataka Vs. Appa Balu Ingale & Ors., AIR 1993 SC 1126 [Para 9]

JUDGMENT

JUDGMENT :- Heard learned counsel for the revisionist, learned AGA and learned counsel appearing for opposite party no.2.

2. This criminal revision has been filed against Judgment and orders dated 30.10.2009 and 9.4.2010 passed by Judicial Magistrate, Kanpur-Dehat and Sessions Judge, Kanpur-Dehat.

3. Learned counsel for the revisionist has submitted that learned Courts below have wrongly proved the evidence on prosecution case. The complaint was time barred therefore, no cognizance should have been taken. It has also been submitted that he has given some blank cheques to his partner who has issued the cheques to third person by misusing his authority therefore, the offence punishable under Section 138 Negotiable Instruments Act is not made out.

4. Learned counsel for the opposite party no.2 has defended the impugned order and has submitted that the revisionist had issued the alleged cheques and has also verified it by a deed on stamp paper on 8.4.2002.

5. I have gone through the impugned judgment and order and also other materials on record. It is settled position of law that High Court will exercise its revisional power where there is a material error or defect in law or procedure, misconception or misreading of evidence, failure to exercise or wrong exercise of jurisdiction or where the facts admitted or proved do not disclose any offence.

6. As a broad proposition, the interference may be justified (a) where the decision is grossly erroneous; (b) where there is no compliance with the provisions of law; (c) where the finding of fact affecting the decision is not based on the evidence; (d) where the material evidence of the parties has not been considered; and (e) where the judicial discretion is exercised arbitrarily or perversely.

7. In exercise of the revisional jurisdiction, it will be beyond its power and jurisdiction to re-assess the evidence. Appraisal of the evidence is not permissible in revision petition. Hon'ble Supreme Court in "State of Kerala Vs. Putthumana Illath Jathavedan Namboodiri", AIR 1999 SC 981 : [1999 ALL MR (Cri) 517 (S.C.)], has held that the High Court while hearing revisions does not work as an Appellate Court and will not re-appreciate the evidence, unless some glaring feature is pointed out which may show that injustice has been done.

8. Hon'ble the Apex Court in "Jagannath Chaudhary Vs. Ramayan Singh", AIR 2002 SC 2229, has held that revisional jurisdiction is normally to be exercised only in exceptional cases where there is a glaring defect in the procedure or there is a manifest error or point of law and consequently there has been a flagrant miscarriage of justice. In "Munna Devi Vs. State of Rajasthan and others" AIR 2002 SC 107 : [2002(1) ALL MR 646 (S.C.)], it has been further held that while exercising the revisional powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do.

9. Hon'ble the Apex Court in "State Of Karnataka vs. Appa Balu Ingale and others", AIR 1993 SC 1126, has held that generally speaking, concurrent findings of fact arrived at by two courts below are not to be interfered with by the High Court in absence of any special circumstances or if same are perverse in any manner.

10. At the time of admission of this revision, the revisionist was directed to deposit Rs.40,000/- within two months and recovery of remaining amount Rs.1,10,000/- was stayed during the pendency of this criminal revision. During pendency of this revision, the revisionist sought time on the ground of marriage of his daughter to deposit the remaining amount Rs.1,10,000/-, and 15 days time was granted to deposit the remaining amount but the same has not been complied with.

11. Learned counsel for the revisionist has submitted that the cheques are alleged to have been dishonoured were not issued by him and the opposite party no.2 was not holder in due course.

12. Learned Courts below have considered these aspects and have come to the conclusion that the revisionist had not only issued the alleged cheques in favour of opposite party no.2 but has also executed a deed on the stamp paper which goes to show that the cheqeus were issued to opposite party no.2 and opposite party no.2 was holder in due course. During the trial, the revisionist had admitted his signatures on the alleged cheques therefore, learned Court below has come to the conclusion that revisionist had issued the cheques in question in favour of the opposite party no.2.

13. Learned counsel for the revisionist has submitted that the cheques were presented before the Bank lastly on 24.10.2002 which were alleged to have been dishonoured and after that a notice was sent on 2.2.2003 which was never received to the revisionist therefore, the complaint was not competent. As regards the notice, learned Court below has come to the conclusion that notices were sent to the revisionist on his address of village as well as another address where he was residing. The notice sent by registered post came with the endorsement that the revisionist is not residing in the village and the notice sent by U.P.C. at another address where the revisionist was residing at Kanpur was received with the endorsement of refusal. Therefore, the service of notice has been deemed sufficient which cannot be said to be illegal. The revisionist had admitted in the Court below that the address mentioned on the notice was correct therefore, it was presumed that he has refused to accept the notice. No collusion in between the opposite party no.2 and the postman has been alleged or proved therefore, sufficient notice is proved. It has also come in the evidence that after dishonour of the cheques on 11.9.2002, the opposite party no.2 has contacted the revisionist and the revisionist had asked him to resubmit the cheques and assured him that payment shall be made. Even then the cheque was resubmitted on 24.10.2002 but that was dishonoured on the ground that there were no sufficient funds in the account of the revisionist.

14. Learned Courts below have considered all defence raised by the revisionist and has come to the conclusion that the revisionist had issued the alleged cheques in favour of opposite party no.2 and has further admitted the fact of issuing cheque on a deed executed on the stamp paper.

15. Learned counsel for the revisionist has submitted that the Court was not competent to take cognizance of the matter because the complaint was barred by time. Learned counsel for the revisionist has drawn the attention of this Court to the provisions of Section 142 of the Negotiable Instruments Act, 1881, which provides as under :-

"142. cognizance of offences. - Notwithstanding anything contained in the Code of Criminal Procedure, 1973.

(a) no Court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;

(b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138: Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period;

(c) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable section 138."

Section 138 (c) of the Negotiable Instruments Act provides as under:-

"(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice."

16. As per above provisions, the drawer of such cheque must pay the amount of the cheque within 15 days of the receipt of the notice. The notice has been sent on 2.2.2003 and the complaint has been filed on 3.4.2003. Certainly, the period of limitation shall run after expiry of 15 days from the date of service of the notice. The stamp of the post office mentioned on the envelope sent by U.P.C. contains the date 13.2.2003. Certainly, some period must also have been consumed in the delivery of this letter to the opposite party no.2. Admittedly, the month of February in the year 2003 had 28 days. The complaint has been filed on 3.4.2003 which is within one month of the date of cause of action. I do not find any substance in the submissions of learned counsel for the revisionist that the complaint was time barred.

17. Learned Court below has appreciated the evidence on record properly. The findings are based on cogent reasons supported by evidence on record. The findings of both the Courts below are concurrent in which the revisionist has been found guilty for the offence punishable under Section 138 of the Negotiable Instruments Act.

18. I do not find any error of law or perversity in the impugned Judgment. The revision is dismissed.

19. The revisionist is directed to appear before the Judicial Magistrate-II, Kanpur-Dehat on or before 2.4.2013 to serve out the sentence awarded by Appellate Court in Criminal Appeal No.61 of 2009. In case the revisionist do not surrender before the Court of Judicial Magistrate-II, Kanpur-Dehat then the Judicial Magistrate, Kanpur-Dehat shall be at liberty to issue coercive process against the revisionist in accordance with law.

20. Office is directed to communicate this order to the Sessions Judge, Kanpur-Dehat at an early date and sent back the lower Court record to the Court concerned.

Revision dismissed.