Sheikh Shameem v. Mushtaq Ahmad Najar & Ors

by this Court in CM(M) No.108/2025, is sought by petitioner on the grounds mentioned therein.

4. I have heard counsel for review petitioner, and considered the matter. I have gone through order dated 5th May 2025.

5. It is contention of review petitioner, which has also been reiterated by his counsel, that this Court has not appreciated arguments made by counsel in its right perspective, leading to legal error in judgement. It is 1 being stated that section 247 of the Code of Criminal Procedure mandates that once accused is not acquitted under Section 346, he shall be called upon to enter his defence and produce any evidence support thereof. This provision confers upon accused a right to produce relevant evidence at defence stage and the court is under duty to permit such evidence to be brought on record. This Court is stated to have overlooked the fact that bank certificate sought to be placed on record was not in petitioner9s possession earlier, despite bona fide efforts. The said certificate was only issued on 6th April 2022 after repeated requests and could not have been produced earlier. The document is crucial in establishing that the disputed cheques did not emanate from petitioner9s bank account and directly rebuts statutory presumption under Section 139 of Negotiable Instruments Act. The evidentiary value of this certificate is pivotal and its exclusion severely prejudices the defence. It is also stated by petitioner that refusal to allow petitioner to bring on record critical defence evidence amounts to a grave violation of fundamental right to a fair trial as guaranteed under Article 21 of the Constitution of India. A fair trial encompasses right of accused to present material evidence in his defence and to rebut prosecution9s case effectively. Procedural technicalities must not override constitutional safeguards especially when evidence is relevant, genuine and timely filed. This Court is stated to have erroneously applied procedural norms applicable to summary trials in a rigid and mechanical manner. While objective of summary proceedings under Chapter XXI of the Code is to ensure speedy justice, such proceedings must not sacrifice principles of natural justice and right of accused to present complete defence. It is 2 also stated by petitioner that Revisional Court and this Court have erred in holding that re-examination of concerned Branch Manager is impermissible solely because he had been previously cross-examined and subsequently transferred whereas bank certificate was issued after his initial testimony. This Court is stated to have adopted a hyper- technical view of procedural timelines which goes against well- established principle that procedure is handmaid and not mistress of justice.

6. Before proceeding further, it would be appropriate to reproduce relevant portions of the order under review hereunder: <5. A complaint under Section 138 of Negotiable Instruments Act titled as Mushtaq Ahmad Najar and another vs. Sheikh Shameem Ahmad, came to be filed by respondents herein way back on 25.03.2019. Thereafter, petitioner-accused caused his appearance before Trial Court. Respondents’ evidence was closed on 18.02.2021. It was on 03.12.2021 that statement of petitioner- accused under Section 342 Cr.P.C. was recorded. After two years, i.e., on 14.11.2023, evidence of petitioner-accused came to be closed. Petitioner-accused came up with an application on 22.06.2022 for bringing on record the certificate issued by the Bank dated 06.04.2022. In addition to that, petitioner-accused also preferred an application seeking reexamination of the Branch Manager Nalamar. The said application was filed on 08.11.2022. Both these applications were objected by the complainants. The Trial Court considered both the applications, i.e., one to place on record certificate issued by the Bank and another one to permit reexamination of Bank Manager Nalamar, Srinagar, and observed that the ground on which the certificate was sought to be placed on record did not corroborate with the contents of the certificate, the same. Second application seeking therefore, rejected reexamination of the Branch Manager was also rejected on the ground that contention raised in the application was that accused had brought on record a document of concerned bank which was vital for adjudication of the complaint and as such there was necessity to reexamine Branch Manager and so far as record pertained to the said document for which accused sought further cross-examination of Branch Manager had not been brought on record on the date of presentation of such application. 6. Aggrieved of Trial Court order, petitioners preferred revision petition. The Revisional Court also rejected the revision petition, by holding that it is well settled law that object of provisions of revision is to set right a patent defect or error or jurisdiction of law. The revisional jurisdiction of the Court under Section 397 Cr.P.C. 3 can be exercised where there is an error of non-compliance with the provisions of law and the decision is completely erroneous. The Revisional Court has also observed that the application seeking permission to place on record the certificate along with the video clip should have been placed on record by the petitioner- accused at the first instance when he appeared before the Trial Court but he failed to do so and that he was leading defence evidence, nothing had prevented him to provide the same by way of defence evidence. The Trial Court also observed that reexamination of Branch Manager in view of certificate issued by bank was not relevant because he was not authority of said certificate, besides Branch Manager had been cross-examined at length by the counsel and that the said person is not posted in the said branch and record is not in his control and supervision. and accordingly rejected the revision petition. 7. As is apparent from perusal of the record on file, including impugned order, that petitioner-accused had got his statements recorded under Section 242 Cr.P.C. and 342 Cr.P.C. Petitioner- accused was given time to lead additional evidence subject to payments of costs of Rs.300/-. There is, on the face of it, delay in filing applications by petitioner-accused which has only protracted the matter The summary proceedings under Section 138 of the Act are pending before the Trial Court for last five years. Such delay in conclusion of summary proceedings under Section 138 of the Act defeats the very purpose of the Act. 8. The Revisional Court has rightly opined that all that has been said and stated by petitioner-accused vis-à-vis production of documents and reexamination of Manager could have been urged by him the moment he caused his appearance before the Trial Court but he remained calm and quiet for next two years. Trial Court has correctly said that what prevented petitioner-accused to file application for production of documents etc. is not coming forth from the said application. ……………. 15. From the foregoing discussion and settled legal position, it is derivable that instant petition does not call for any interference. The powers, vested in this Court under Article 227 of the Constitution are neither substitution to revisional nor appellate power, inasmuch as orders impugned are neither perverse nor have occasioned serious miscarriage of justice. Any interference by this Court would only prolong the summary proceedings inordinately. Even otherwise, impugned orders do not warrant interference by exercise of extraordinary or supervisory jurisdiction of this Court, in that neither the decision-making process of learned courts below suffers from any bias nor do impugned orders cause any miscarriage of justice or otherwise suffer from any error of law. 16. In the background of preceding discourse, the petition on hand is devoid of any merit and as a corollary, the same is dismissed, with connected IA(s). Interim direction, if any, shall stand vacated.= 4

7. It is pertinent to mention here that while considering abovementioned contentions, the scope and ambit of Section 114 read with Order XLVII Rule 1 of the Code of Civil Procedure is to be taken into consideration.

8. The grounds on which review can be sought are enumerated in Order XLVII Rule 1 CPC, which reads as under: <1. Application for review of judgment. - (1) Any person considering himself aggrieved- (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment of the court which passed the decree or made the order.=

9. An application for review would lie, among others, when an order suffers from an error apparent on the face of record and permitting the same to continue would lead to failure of justice. Limitations on exercise of power of review are well settled. The first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and permitting the order to stand will lead to failure of justice. In absence of any such error, finality attached to the judgment/order cannot be disturbed.

10. The power of review can also be exercised by the court in the event discovery of new and important matter or evidence takes place which despite exercise of due diligence was not within the knowledge of the applicant or could not be produced by him at the time when the order 5 was made. An application for review would also lie if the order has been passed on account of some mistake.

11. It is beyond any doubt or dispute that the review court does not sit in appeal over its own order. A rehearing of the matter is impermissible in law. It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. It is also trite that exercise of inherent jurisdiction is not invoked for reviewing any order.

12. The Supreme Court in Haridas Das v. Usha Rani Banik (Smt.) and Others, (2006) 4 SCC 78, while considering the scope and ambit of Section 114 CPC read with Order 47 Rule 1 CPC observed and held as under: <14. In Meera Bhanja v. Nirmala Kumari Choudhury, (1995) 1 SCC 170 it was held that: <8. It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC. In connection with the limitation of the powers of the court under Order 47 Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution, this Court, in AribamTuleshwar Sharma v. Aribam Pishak Sharma, (1979) 4 SCC 389 speaking through Chinnappa Reddy, J. has made the following pertinent observations: 8It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found, it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate court.’ 6

15. A perusal of Order 47 Rule 1 shows that review of a judgment or an order could be sought: (a) from the discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge of the applicant; (b) such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; and (c) on account of some mistake or error apparent on the face of the record or any other sufficient reason.=

13. An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record. An error that is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of record justifying the court to exercise its power of review under Order XLVII Rule 1 CPC. In exercise of jurisdiction under Order XLVII Rule 1 CPC, it is not permissible for an erroneous decision to be 8reheard and corrected9. A review petition, it must be remembered, has a limited purpose and cannot be allowed to be 8an appeal in disguise9. [Vide: Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, AIR 1979 SC 1047; Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa Tirumale, AIR 1960 SC 137, and Parsion Devi v. Sumitri Devi, (1997) 8 SCC 715].

14. Again, the Supreme Court in Lily Thomas v. Union of India, (2000) 6 SC 224, held that power of review could be exercised to correct a mistake but not to substitute a view. Such powers could be exercised within limits of statute dealing with exercise of power. It was further observed that the words <any other sufficient reason= appearing in Order XLVII Rule 1 CPC must mean <a reason sufficient on grounds at least analogous to those specified in the rule= as was held in Chhajju 7 Ram v. Neki, AIR 1922 PC 112 and Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526.

15. Section 114, CPC, provides for a substantive power of review by a civil court and consequently by appellate courts. Section 114 envisions: <114. Review. 4Subject as aforesaid, any person considering himself aggrieved, 4 (a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed by this Code, (c) by a decision on a reference from a Court of Small cause, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.=

16. The words <subject as aforesaid= occurring in Section 114 of the Code mean subject to such conditions and limitations as may be prescribed as appearing in Section 113 thereof and for the said purpose, the procedural conditions contained in Order XLVII of the Code must be taken into consideration. Section 114 of the Code although does not prescribe any limitation on the power of the court but such limitations have been provided for in Order XLVII Rule 1 CPC.

17. Power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise. It cannot be denied that the review is the creation of a statute. In the case of Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji, (1971) 3 SCC 844, the Supreme Court has held that power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It is essential that it should be something more than a mere error; it must be one which must be 8 manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record? Learned counsel for review petitioner was unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated. The term <mistake or error apparent= by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of facts or legal position. If an error is not obvious and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 CPC. To put it differently, an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court on a point of fact or law. In any case, while exercising the power of review, the court cannot sit in appeal over its judgment/decision.

18. The Supreme Court in Ram Sahu (Dead) through LRs and others v. Vinod Kumar Rawat and others, 2020 SCC OnLine SC 896, after discussing a number of judgements on the subject of review, has held that an application for review is more restricted than that of an appeal and the Court of review has limited jurisdiction as to the definite limit mentioned in Order XLVII Rule 1 CPC itself. The powers of review cannot be exercised as an inherent power nor can an appellate power be exercised in the guise of power of review. After holding this, the 9 Supreme court found that High Court overstepped jurisdiction vested in the Court under Order XLVII Rule 1 CPC.

19. In the backdrop of above well-settled legal position, all that has been argued by counsel for review petitioner and/or mentioned in the instant review petition, is that this Court should reopen the findings recorded in the judgement/order, review of which is sought. It is made clear here that review jurisdiction cannot be used for that purpose. This is not the scope of Section 114 read with Order XLVII Rule 1 CPC. After having an overall view of the grounds taken in the instant petition and submissions made by counsel for review petitioner, there is no error apparent on the face of record warranting review of the order/ judgement dated 5th May 2025. In such circumstances, the instant review petition is liable to be dismissed. The judgements relied upon by learned counsel for review petitioner and/or mentioned in the review petition, given above discourse, do not give any help to the averments made by review petitioner in the instant petition.

20. For the reasons discussed above, I do not find any merit in this petition seeking review of judgement/order dated 5th May 2025, and the same is, accordingly, dismissed. (VINOD CHATTERJI KOUL) JUDGE SRINAGAR 04.11.2025 Shabroz 10