Prem Lata Bushahri v. M/s Himachal Pradesh Commercial Corporation

the learned Trial Court for convenience.)

2. Briefly stated, the facts giving rise to the present revision are that the complainant filed a complaint before the learned Trial Court against the accused for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (in short, 'NI Act'). It was asserted that the complainant, Dinesh Nanda, is running a business in the name and style of Himachal Pradesh Commercial Corporation, 13, Ganj Bazar, Shimla, H.P. The complainant and the accused had various business transactions. The accused was liable to pay ₹5,12,210/- to the complainant vide Bill no. 4042 dated 25.04.2015. She paid ₹60,000/- to the complainant and issued various cheques to pay the remaining amount of ₹ 4,52,210/-. The cheque for ₹1,50,000, drawn on Punjab National Bank, H.P. Secretariat, Shimla, H.P., issued by the accused, was one of those cheques. The complainant deposited the cheque at his bank, and it was dishonoured with the endorsement “insufficient funds”. The complainant issued a demand notice to the accused asking her to pay the amount within 15 days. Notice was 3 duly served upon the accused, but she failed to pay the money. Hence, a complaint was filed before the learned Trial Court against the accused for taking action in accordance with the law.

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

4. The complainant examined himself (CW1) to prove his complaint.

5. The accused, in her statement recorded under section 313 Cr. P.C. denied the complainant’s case in its entirety. She stated that she did not know the complainant and had not issued any cheque in his favour. Himachal Pradesh Commercial Corporation is a money lender. The accused and her husband had borrowed money from it for which blank cheques were issued as security. She admitted her signature on the cheque. She claimed that she had kept blank signed cheques at home, which were handed over by her husband to Himachal Pradesh Commercial 4 Corporation. She did not produce any evidence to prove her defence.

6. Learned Trial Court held that the accused admitted her signature on the cheque. A cheque carries with it a presumption that it was issued for consideration to discharge debt/liability. The accused failed to rebut the presumption. The plea taken by her that a blank cheque was handed over to Himachal Pradesh Commercial Corporation was not proved. A blank signed cheque would also give rise to a liability. The complainant was not proved to be a money lender. The complainant’s version was duly proved by the bill. The cheque was dishonoured with endorsement “insufficient funds”, and the notice was served upon the accused. All the ingredients of the commission of an offence punishable under Section 138 of the NI Act were duly satisfied. Hence, the learned Trial Court convicted the accused of the commission of an offence punishable under Section 138 of the NI Act, and sentenced her to undergo simple imprisonment for one year, pay a compensation of ₹3,00,000/- and, in default of the payment of compensation, to undergo further simple imprisonment for six months. 5

7. Being aggrieved by the judgment and order passed by the learned Trial Court, the accused filed an appeal, which was decided by the learned Sessions Judge, Shimla (learned Appellate Court). The learned Appellate Court concurred with the findings recorded by the learned Trial Court that a cheque carries with it a presumption that it was issued for consideration to discharge the debt/liability. The plea taken by the accused that she had issued a blank cheque was not proved. The accused had failed to rebut the presumption attached to the cheque. The cheque was dishonoured with the endorsement “insufficient funds”. Notice of demand was served upon the accused, and she failed to repay the amount despite receipt of a valid notice of demand. The learned Trial Court had rightly convicted the accused. The sentence imposed by the learned Trial Court was adequate, and no interference was required with it. Hence, the appeal was dismissed.

8. 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 placed before 6 them. The petitioner was willing to compound the matter before this Court. Therefore, it was prayed that the present revision be allowed and the judgments and order passed by the learned Courts below be set aside.

9. I have heard Mr Rajul Chauhan, learned counsel for the petitioner/accused, and Mr Deepak Gupta, learned counsel for the respondent/complainant.

10. Mr Rajul Chauhan, learned counsel for the petitioner/accused, submitted that the learned Courts below erred in appreciating the material placed before them. The complainant’s version was inherently improbable because it is difficult to believe that any person would have purchased a huge quantity of cloth from the complainant without any reason. The complainant was proved to be a money lender who had filed multiple complaints before the Court. The complainant failed to produce any license of money lending, and the complaint filed by it before the Court was not maintainable. The learned appellate Court had decided the matter in the absence of the accused, which violates the principle of natural justice. Hence, he prayed that the 7 present revision be allowed and the judgments and order passed by the learned Courts below be set aside.

11. Mr Deepak Gupta, Ld. counsel for the respondent/complainant, submitted that the accused admitted her signature on the cheque, which would trigger a presumption that the cheque was issued for consideration to discharge the debt/liability. The accused failed to rebut the presumption. The complainant’s version was duly proved by the bill produced on record. All the ingredients of the commission of an offence punishable under section 138 of the NI Act were duly satisfied. Both the learned Courts below had rightly convicted and sentenced the accused, and this Court should not interfere with the concurrent findings of facts recorded by the learned Courts below. Hence, he prayed that the present revision be dismissed.

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

13. It was laid down by the Hon’ble Supreme Court in Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 8 204: (2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that a revisional court is not 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 which 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.

14. 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 9 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.

15. It would be apposite to refer to the judgment of this Court in Amit Kapoor v. Ramesh Chander [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460: (2012) 4 SCC (Civ) 687: (2013) 1 SCC (Cri) 986], where 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 10 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) 3 SCC (Cri) 544: (2018) 4 SCC (Civ) 37: 2018 SCC OnLine SC 651 that it is impermissible for the High Court to reappreciate the evidence and come to 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 11 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 reappreciating the oral evidence. …” the respondent

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, 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 12 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.”

16. 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.

17. 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. 13 The answer to the first question is, therefore, in the negative.”

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

18. A perusal of the record of the learned Appellate Court shows that the notices were issued to the parties and the counsel returnable for 07/08/2024. The notice issued to the petitioner/appellant/accused was returned with a report that the accused had retired and was not available at the given address. The notice was served upon the Ld. counsel, mentioning that the presence was required for answering a charge. No notice was served upon the petitioner/appellant/accused informing her that the matter was listed for arguments and the arguments would be heard in her absence in case of her nonappearance. Even the notice issued to the Ld. counsel did not mention any such fact. Therefore, in these circumstances, the Ld. appellate Court was not justified in hearing the arguments and pronouncing a judgment. It was laid down by the Hon’ble Supreme Court Mohd. Sukur Ali v. State of Assam, (2011) 4 SCC 729, that if the counsel of the accused does not appear, the Court should not decide 14 the case against him in the absence of the counsel because the accused should not suffer for the fault of the counsel. The Court should appoint an amicus curiae and should hear him. It was observed: - “5. We are of the opinion that even assuming that the counsel for the accused does not appear because of the counsel's negligence or deliberately, even then the court should not decide a criminal case against the accused in the absence of his counsel since an accused in a criminal case should not suffer for the fault of his counsel and in such a situation the court should appoint another counsel as amicus curiae to defend the accused. This is because the liberty of a person is the most important feature of our Constitution. Article 21, which guarantees protection of life and personal liberty, is the most important fundamental right of the fundamental rights guaranteed by the Constitution. Article 21 can be said to be the “heart and soul” of fundamental rights.

6. In our opinion, a criminal case should not be decided against the accused in the absence of counsel. We are fortified in the view we are taking by a decision of the US Supreme Court in Powell v. Alabama [77 L Ed 158: 287 US 45 (1932)], in which it was observed: (L Ed pp. 170-71) “What, then, does a hearing include? Historically and in practice, in our own country at least, it has always included the right to the aid of counsel when desired and provided by the party asserting the right. The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has little or no skill in the science of law. If charged with a crime, he is generally incapable of 15 determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be put on trial without a proper charge and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge to adequately prepare his defence, even though he has a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a State or Federal Court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense.”