Sunil Kumar v. State Bank of India

Learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, a notice of accusation was put to him for the commission of an offence punishable under Section 138 of the NI Act, to which he pleaded not guilty and claimed to be tried.

The complainant examined Sunil Sharma (CW1) to prove its complaint.

The accused, in his statement recorded under Section 313 of the Code of Criminal Procedure (Cr.P.C.), admitted that the complainant had advanced a house loan of ₹6,00,000/- to him. He denied the rest of the complainant's case. He stated that he was paying regular instalments to the bank. He had not issued any cheque in favour of the bank. He failed to produce any evidence, and the learned Trial Court closed the evidence by the order of the Court on 27.04.2023.

Learned Trial Court held that there is a presumption attached to the cheque that it was issued for consideration to discharge the debt/liability. The accused admitted in his statement 4 recorded under Section 313 of the Cr.P.C. that he had taken the loan of ₹6,00,000 from the complainant. He claimed that he was repaying the money as per the instalments. However, he did not produce any evidence to establish this defence. Even if the cheque was issued as a security, it would attract the provisions of Section 138 of the NI Act. The cheque was dishonoured with an endorsement “insufficient funds”, and the accused failed to repay the money despite the receipt of a valid notice of demand. Hence, the learned Trial Court convicted the accused of the commission of an offence punishable under Section 138 of the NI Act and sentenced him to undergo simple imprisonment for 6 months and pay a compensation of ₹6,50,000/- to the complainant.

Being aggrieved by the judgment passed by the learned Trial Court, the accused filed an appeal, which was decided by the learned Additional Sessions Judge, Chamba, Division Chamba (learned Appellate Court). Learned Appellate Court concurred with the findings recorded by Learned Trial Court that a cheque carries with it a presumption that it was issued for consideration to discharge the debt/liability. The accused failed to rebut this presumption by leading any satisfactory evidence. The cheque was dishonoured with the endorsement “insufficient funds”. The 5 notice was duly served upon the accused, and he failed to repay the amount. The sentence imposed by the learned Trial Court is not excessive. Hence, the appeal was dismissed.

Being aggrieved by the judgments and order passed by the learned Courts below, the accused has filed the present revision asserting that the learned Courts below erred in appreciating the material on record. The complainant’s witness did not say that he had personal knowledge of the transaction. The complaint was not filed by an authorised officer. The learned courts below failed to appreciate this aspect. Hence, it was prayed that the present revision be allowed and the judgments and order passed by the learned Courts below be set aside.

I have heard Mr Rakesh Thakur, learned counsel for the petitioner/accused, and Ms Kiran Sharma, learned counsel for the respondent/complainant.

Mr Rakesh Thakur, learned counsel for the petitioner/accused, submitted that the learned Courts below erred in appreciating the material on record. The complainant had failed to prove the existence of a debt/liability. Sunil Sharma (CW1) was not authorised to make the statement on behalf of the 6 complainant, and the learned Courts below erred in relying upon his testimony. Therefore, he prayed that the present revision be allowed and the judgments and order passed by the learned Courts below be set aside.

Ms Kiran Sharma, learned counsel for the respondent/complainant, submitted that both the learned Courts below have concurrently held that the accused had issued a cheque in favour of the complainant and that the accused had failed to rebut the presumption attached to the cheque. This is a pure finding of fact, and this Court should not interfere with the pure finding of facts recorded by the learned courts below. The accused admitted the taking of the loan and learned Court's below had rightly held that the cheque was issued for consideration to discharge the debt/liability. Hence, she prayed that the present revision be dismissed.

I have given a considerable thought to the submissions made at the bar and have gone through the records carefully.

It was laid down by the Hon’ble Supreme Court in Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204: (2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that a revisional court is not 7 an appellate court and it can only rectify the patent defect, errors of jurisdiction or the law. It was observed at page 207: - “10. Before adverting to the merits of the contentions, at the outset, it is apt to mention that there are concurrent findings of conviction arrived at by two courts after a detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction like the appellate court, and the scope of interference in revision is extremely narrow. Section 397 of the Criminal Procedure Code (in short “CrPC”) vests jurisdiction 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 regularity of any proceedings of such inferior court. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error that is to be determined on the merits of individual cases. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings.

This position was reiterated in State of Gujarat v. Dilipsinh Kishorsinh Rao, (2023) 17 SCC 688: 2023 SCC OnLine SC 1294, wherein it was observed at page 695: “14. The power and jurisdiction of the Higher Court under Section 397 CrPC, which vests the court with the power to call for and examine records of an inferior court, is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in such proceedings.

It would be apposite to refer to the judgment of this Court in Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460: (2012) 4 8 SCC (Civ) 687: (2013) 1 SCC (Cri) 986, where the scope of Section 397 has been considered and succinctly explained as under: (SCC p. 475, paras 12-13) “12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error, and it may not be appropriate for the court to scrutinise the orders, which, upon the face of it, bear a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored, or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.

13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in the exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even the framing of the charge is a much-advanced stage in the proceedings under CrPC.”

15. It was held in Kishan Rao v. Shankargouda, (2018) 8 SCC 165: 2018 SCC OnLine SC 651 that it is impermissible for the High 9 Court to re-appreciate the evidence and draw its conclusions in the absence of any perversity. It was observed at page 169: “12. This Court has time and again examined the scope of Sections 397/401 CrPC and the grounds for exercising the revisional jurisdiction by the High Court. In State of Kerala v. Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC 452: 1999 SCC (Cri) 275], while considering the scope of the revisional jurisdiction of the High Court, this Court has laid down the following: (SCC pp. 454-55, para 5)

5. … In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings to satisfy 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 a 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 reappreciate the evidence and come to its conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise amount to a gross miscarriage of justice. On scrutinising the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation in concluding that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence. …”

13. Another judgment which has also been referred to and relied on by the High Court is the judgment of this Court in Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke, (2015) 3 SCC 123: (2015) 2 SCC (Cri) 19]. This Court held that the High Court, in the exercise of revisional jurisdiction, 10 shall not interfere with the order of the Magistrate unless it is perverse or wholly unreasonable or there is non- consideration of any relevant material, the order cannot be set aside merely on the ground that another view is possible. The following has been laid down in para 14: (SCC p. 135)

14. … Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with the decision in exercise of their revisional jurisdiction.

This position was reiterated in Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197: (2019) 2 SCC (Cri) 40: (2019) 2 SCC (Civ) 309: 2019 SCC OnLine SC 13, wherein it was observed at page 205: “16. It is well settled that in the exercise of revisional jurisdiction under Section 482 of the Criminal Procedure Code, the High Court does not, in the absence of perversity, upset concurrent factual findings. It is not for the Revisional Court to re-analyse and re-interpret the evidence on record.

As held by this Court in Southern Sales & Services v. Sauermilch Design and Handels GmbH, (2008) 14 SCC 457, it is 11 a well-established principle of law that the Revisional Court will not interfere even if a wrong order is passed by a court having jurisdiction, in the absence of a jurisdictional error. The answer to the first question is, therefore, in the negative.”

17. A similar view was taken in Sanjabij Tari v. Kishore S. Borcar, 2025 SCC OnLine SC 2069, wherein it was observed: “27. It is well settled that in exercise of revisional jurisdiction, the High Court does not, in the absence of perversity, upset concurrent factual findings [See: Bir Singh (supra)]. This Court is of the view that it is not for the Revisional Court to re-analyse and re-interpret the evidence on record. As held by this Court in Southern Sales & Services v. Sauermilch Design and Handels GMBH, (2008) 14 SCC 457, it is a well-established principle of law that the Revisional Court will not interfere, even if a wrong order is passed by a Court having jurisdiction, in the absence of a jurisdictional error.

Consequently, this Court is of the view that in the absence of perversity, it was not open to the High Court in the present case, in revisional jurisdiction, to upset the concurrent findings of the Trial Court and the Sessions Court.”

The present revision has to be decided as per the parameters laid down by the Hon’ble Supreme Court.

Sunil Sharma (CW1) reiterated the contents of the complaint in his affidavit. He stated in his cross-examination that the loan was taken by the accused in the year 2015. He admitted that the payments were being made regularly till 2017, and the loan account became NPA in the year 2018. He denied that security 12 cheques were taken at the time of disbursal of the loan. The cheque was issued on 01.05.2018. He admitted that he had not filed the complaint, and the complaint was filed by Mr Nagesh Sood, who was still posted as a Manager.

It was submitted that the complaint was filed through Mr Nagesh Sood, but he did not appear before the Court, and an adverse inference should have been drawn against the complainant for withholding him. This submission cannot be accepted. The accused admitted in his statement recorded under Section 313 of the Cr.P.C. that he had taken the house loan from the complainant. Thus, the loan transaction was not in dispute. There is nothing in the cross-examination of Sunil Sharma (CW1) that he was not aware of the facts of the case. An adverse inference can be drawn when the evidence on record is insufficient2. Therefore, the submission that an adverse inference has to be drawn against the complainant for withholding the best evidence cannot be accepted.

It was submitted that the complaint was filed without any authority and was not maintainable. This submission cannot be accepted. The cheque (Ext.C3) was issued in the name of State Bank of India, Banikhet. The complaint was filed by State Bank of