The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.787 of 2013 (In the matter of an application under Section 401 read with Section 397 of the Criminal Procedure Code, 1973.) Purna Chandra Samal ……. Petitioner -Versus- State of Orissa & another ……. Opp. Parties For the Petitioner : None For the Opp. Parties : Mr. B.K. Ragada, AGA (for Opp. Party No.1) : Mr. A.P. Bose, Advocate (for Opp. Party No.2) CORAM:
Legal Reasoning
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 08.10.2024 : Date of Judgment: 23.12.2024 S.S. Mishra, J. The present Criminal Revision petition under Sections 401 read with Section 397 of the Cr.P.C. is directed against the judgment dated 30.07.2013 passed by the learned Additional Sessions Judge, Champua in Criminal Appeal No.03 of 2012, whereby the learned appellate court has dismissed the appeal and confirmed the judgment of conviction and order of sentence passed by the learned J.M.F.C., Barbil on 24.10.2011 in 1.C.C. Case No.34 of 2010 where the accused- petitioner has been sentenced to undergo S.I. for a period of six months and to pay a fine of Rs.2,30,000/- for commission of the offence punishable under Section 138 of N.I. Act. The said fine amount was also directed to be paid to the complainant/opposite party no.2 as compensation under Section 357 of Cr.P.C. Being aggrieved by the judgment dated 30.07.2013, the petitioner has preferred the present Criminal Revision Petition. 2. The present Criminal Revision Petition is pending since 03.09.2013. Vide its order dated 27.11.2013 passed in Misc. Case No.1223 of 2013, this Court stayed the realization of compensation amount as directed by the learned J.M.F.C., Barbil in 1.C.C. Case No.34 of 2010 passed against the petitioner subject to the petitioner depositing Rs.1,15,000/- before the learned J.M.F.C., Barbil. Page 2 of 12 3. The opposite party no.2/complainant subjected the present petitioner to prosecution by filing 1.C.C. Case No.34 of 2010 under Section 138 of the N.I. Act before the learned J.M.F.C., Barbil. 4. The facts of the case is that on 30.07.2010, the opposite party no.2/complainant filed a complaint case against the present petitioner under Section 138 of N.I. Act for dishonor of the cheque issued in favour of the opposite party no.2/complainant in order to liquidate a friendly loan availed by petitioner, which was registered as 1.C.C. Case No.34 of 2010. The petitioner was summoned to face the trial. He appeared before the learned Court below and took a plea that he has availed a friendly loan of Rs.1,00,000/- and in order to liquidate the loan, he had issued a cheque amounting to Rs.1,00,000/- on 30.03.2010 with a request to present in the bank after informing him. But subsequently, the opposite party no.2/complainant informed the petitioner that the cheque issued by him got destroyed/damaged, hence, he will return the same. The O.P/complainant instead of returning the original damaged cheque has returned a coloured photocopy of the same, which the petitioner didn’t realize at that point in time. Thereafter the petitioner issued another Page 3 of 12 cheque amounting to Rs.1,00,000/- in lieu of the damaged cheque on 02.04.2010. The petitioner presented two cheques amounting to Rs.2,00,000/- without informing the opposite party no.2/complainant and returning the alleged damaged cheque. The petitioner was issued notice to pay the amount through the Advocate of the opposite party no.2/complainant on 31.05.2010. The petitioner received the demand notice on 21.06.2010. Since the petitioner failed to make good the cheque amount, the complainant proceeded against him. Regarding the alleged fraud committed by O.P./ complainant the petitioner has also filed criminal case, which is pending. Per contra, the case of the opposite party no.2/complainant is that he had good relationship with the petitioner, who asked for Rs.2,00,000/- from him as friendly loan, which he gave. When the opposite party no.2 did not get back the loan amount within the promised time, he repeatedly requested to the petitioner for repayment. The petitioner handed over two cheques signed by him giving two dates. Accordingly, the opposite party no.2 presented the cheques before the State Bank of India, but both the cheques got dishonored. Therefore, the opposite party no.2 issued notice Page 4 of 12 to the petitioner. After receipt of the said notice, the petitioner refused to pay the loan amount and avoided, for which the opposite party no.2 was compelled to file the complaint case following necessary procedure. 5. The sole defence of the petitioner was that although he had issued two cheques singed by him, but one cheque was supposed to be returned back to him by the complainant. The opposite party no.2/complainant has played fraud by returning coloured photocopy of the cheque instead of the original and presented the original cheque with the Bank, which eventually got dishonored. Therefore, the petitioner had lodged an F.I.R. being Joda P.S. Case No.177 of 2010 corresponding to G.R. Case No.649 of 2010 against the opposite party no.2/complainant. The prosecution launched by the opposite party no.2/ complainant against the petitioner is still pending. 6. The petitioner has been convicted by both the Courts below. When the matter stood thus, at the revisional stage before this Court, the petitioner moved an application being Misc. Case No.53 of 2017, inter alia, praying to rely upon the additional evidence in the present Revision Petition. In the Misc. Case, the petitioner contended that the evidence, Page 5 of 12 which has come on record in the criminal case launched by him against the opposite party no.2 in Joda P.S. Case No.177 of 2010 may be allowed to be relied upon by way of additional affidavit in the present Revision Petition. This Court vide a very detailed order dated 25.01.2017, has rejected the said Misc. Case filed by the petitioner. The relevant part of the said order is quoted hereunder: “xxx xxx xxx 2. Mr. Hrudananda Mohapatra, learned counsel for the petitioner contended that the petitioner had borrowed a sum of Rs.1,00,000/- (rupees one lakh only) from the opposite party no.2- Sanjeev Kumar and assured him to refund the amount within three to four months but due to his daughter’s marriage, the borrowed money could not be returned by the petitioner within time. The petitioner issued a cheque in favour of the opposite party no.2 on 16.03.2010. Subsequently the opposite party no.2 told the petitioner that the issued cheque has been mutilated for which the petitioner issued another cheque in favour of the opposite party no.2 in exchange of the mutilated cheque. The petitioner subsequently detected that the cheque which was returned to him by the opposite party no.2 was a duplicate colour xerox cheque of the original cheque bearing No.384812. It is the further case of the petitioner that when he received the demand notice from the opposite party no.2 in respect of bouncing of both the cheques, he lodged a First Information Report on 21.08.2010 relating to fraud committed by the opposite party no.2 in returning the cheque no.384812 which was not the original cheque issued by the petitioner but it was a duplicate coloured xerox copy of the said cheque. Since the police did not take any action on the F.I.R., the petitioner filed a complaint petition bearing I.I.C. Case No.41 of 2010 against the opposite party no.2 before the learned J.M.F.C., Barbil which was Page 6 of 12 sent to Joda police Station for registration of the F.I.R. and investigation under Section 156(3) of Cr.P.C. and accordingly, Joda P.S. Case no.177 of 2010 was instituted which corresponds to G.R. Case no.649 of 2010 pending in the Court of learned J.M.F.C., Barbil. After completion of investigation, charge sheet has been submitted against the opposite party no.2 and the trial commenced and six prosecution witnesses were examined. In this Misc. Case, the prayer has been made by the petitioner to take the evidence of those six prosecution witnesses examined in G.R. Case No.649 of 2010 as additional affidavit in the criminal revision petition. Learned counsel for the petitioner placed reliance in case of Zahira Habibulla H. Sheikh –Vrs.- State of Gujurat reported in (2004) 28 Orissa Criminal Reports (SC) 321 and Ashok Tshering Bhutia –Vrs.- State of Sikkim reported in (2011) 48 Orissa Criminal Reports (SC) 1060. xxx xxx xxx In the present case, when the trial was under progress, the petitioner could have proved the F.I.R. dated 31.12.2010 of Joda P.S. Case No.177 of 2010, which was instituted in pursuance of the complaint petition filed by him against the opposite party no.2. Similarly, before the Appellate Court, steps could have been taken not only to prove the F.I.R. dated 31.12.2010 but also charge sheet dated 10.12.2011 in Joda P.S. Case no.177 of 2010. Since the petitioner has not taken any such steps before the appropriate Court and earlier filed a misc. case being Misc. Case no.1020 of 2014 under section 391 read with section 401 of Cr.P.C. for taking additional evidence, which was rejected vide order dated 20.07.2016, in the present scenario, if the evidence of the six prosecution witnesses examined in G.R. Case No.649 of 2010 pending in the Court of learned J.M.F.C., Barbil is taken into consideration as additional evidence in this revision petition, any observation relating to the acceptability or otherwise of such evidence would cause an effect in the ultimate outcome of G.R. Case no.649 of 2010. Moreover, out of the six prosecution witnesses examined in G.R. Case no.649 of 2010, the petitioner has examined two of them including himself as defence witnesses during the trial in 1.C.C. Case no.34 of 2010. xxx xxx xxx” Page 7 of 12 7. In view of the aforementioned order of this Court, now the present Revision Petition is to be decided on the basis of the materials available on record in file of 1.C.C. Case No.34 of 2010. 8. None appeared for the petitioner. Heard Mr. B.K. Ragada, learned Additional Government Advocate and Mr. A.P. Bose, learned counsel for the opposite party no.2/complainant. 9. The matter was repeatedly called for hearing. But, none appeared for the petitioner on 08.10.2024 and on the previous dates as well. Therefore, in the absence of the representation on behalf of the petitioner, the present Revision Petition could have been dismissed for non-prosecution. However, in view of the judgments of the Hon’ble Supreme Court in the cases of Madan Lal Kapoor Vrs. Rajiv Thapar and others, reported in (2007) 7 SCC 623 and Taj Mohammad Vrs. State of Uttar Pradesh and Another, reported in 2023 Live Law (SC) 689, this Court has to deal with the merits of the case and pass reasoned order. The Hon’ble Supreme Court in the case of Taj Mohammad Page 8 of 12 (supra) while relying upon the case of Madan Lal Kapoor (supra) has held as follows: “2. This appeal is directed against the judgment and final order dated 12.05.2022 passed by the High Court of Judicature at Allahabad in Criminal Revision No.2562 of 2017. The revisionist is before this Court. He was convicted in Complaint Case No.1808 of 2016 under Section 138 of the negotiable instruments Act, 1881. In Criminal Appeal No.158 of 2016, his conviction and sentence were confirmed. Aggrieved by the order passed in the appeal confirming the order of the Trial Court, the appellant herein moved the stated revision petition which ultimately culminated in the order impugned. 6. We are in perfect agreement with the view taken by the Two- Judge Bench in Madan Lal Kapoor’s case (supra) and, therefore, even in the absence of a party or his counsel, a revision calls for consideration on merits in accordance with the parameters for consideration of a revision petition.” Adhering to the principle of procedure laid down by the Hon’ble Supreme Court to deal with Revision Petition in absence of representation of the Revision Petitioner, I propose to dispose of the present petition on merit. 10. I have perused the judgments of both the Courts below carefully and gone through the evidence, which forms part of 1.C.C. Case No.34 of 2010. It is illuminating from the record that issuance of the cheques by the petitioner has been admitted by the opposite party no.2/complainant. When the statutory notice was issued to the petitioner Page 9 of 12 by the opposite party no.2/complainant, the same was not adequately replied or responded by making good the payment. Therefore, the presumption under Section 139 of the N.I. Act operates against the petitioner. The opposite party no.2/complainant has successfully proved the issuance of the cheques by the petitioner to him and exhibited all the documents relevant to the present case. Therefore, insofar as establishing the offence committed by the petitioner under Section 138 of the Act is concerned, no fault could be found from the record. Insofar as the defence put forth by the petitioner is concerned, the same has been meticulously dealt with by the Courts below. Paragraph-7 of the Appellate Court’s judgment worth noting in this regard, which reads as under: “7. To create doubt that he did not avail a loan of Rs.2 lakh from the complainant he tried to divert the attention of the Court by taking the plea that he had issued only one cheque. But believing the false representation of the complainant that the cheque issued by him got mutilated for which he issued another cheque and accordingly he directed his cross-examination. The complainant proved two cheques drawn in his name by the appellant duly signed by him with dates. During cross-examination, he suggested that he issued one cheque i.e. a cheque bearing no.384812 and believing the false representation of the complainant about mutilation of cheque no.384812 he issued another cheque bearing no.384813. He pleaded that after some days of getting of the cheque no.384812 the complainant approached him taking a plea that the first cheque got destroyed and returned the Page 10 of 12 mutilated cheque and believing the same he issued a second cheque bearing no.384813. But subsequently the compliant after coming to possess two cheques i.e. cheque no.384812 and 384813 presented the same before the S.B.I. against his account without his knowledge and got those cheques dishonored and then filed a case claiming Rs.2 lakh from him. But surprisingly the appellant did not file that mutilated cheque which was returned to him by the complainant. Moreover, if he was informed that the original cheque bearing no.384812 got mutilated still he did not request the Bank by canceling the same, rather he issued another cheque for Rs.1 lakh in favour of the complainant. These two circumstances suggest that the appellant is resorting to falsehood and in fact he issued those two cheques in favour of the complainant in order to liquidate the loan. In view of such factual position, it is loud and clear that in fact the appellant had availed a loan of Rs.2 lakh from the complainant and in order to liquidate the loan he drew two cheques in favour of the complainant and when those cheques got dishonored he had to face the prosecution.” No further deliberation is essential to deal with the defence aspect, as on the said issue there is concurrent finding. The Revisional Court is forbidden to delve upon the issue once again unless it is established that the findings are perverse. 11. I have assessed the evidence brought on record and analyzed the judgments of both the Courts below vis-à-vis the evidence borne on record. It is difficult for this Court to find any infirmity in the appreciations of the evidence by both the Courts below. Therefore, the inevitable conclusion would be to upheld the judgments of both the Courts below. Page 11 of 12 12. Accordingly, I am not inclined to give indulgence to the petitioner in the present Criminal Revision Petition, which is accordingly dismissed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 23rd December, 2024/Amit Signature Not Verified Digitally Signed Signed by: AMIT KUMAR MOHANTY Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 09-Jan-2025 15:48:41 Page 12 of 12