PUNJAB AND HARYANA AT CHANDIGARH Rajesh Kumar State of Punjab CRR-1088-2009 (O&M) & Ors. v. Bonapalli Peda Appadu & Anr.

Judgment

#1. This judgment shall dispose of a Criminal Revision Petition filed against the judgment dated 24.04.2009 passed by the learned CRR-1088-2009 -2- Additional Sessions Judge, Fast Track Court, Ludhiana, vide which an appeal filed by the petitioner/accused (for brevity ‘petitioner’) against the judgment of conviction dated 19.02.2007 and an order of sentence of that very date passed by the learned Judicial Magistrate 1st Class, Ludhiana (for brevity ‘Magistrate’) arising out of an FIR No.180 dated 26.08.1998 registered under Sections 420, 467, 468 and 471 of the Indian Penal Code, 1860 (for brevity, ‘1860 Code’) at Police Station Division No.6, Ludhiana, thereby convicting and sentencing the petitioner for commission of offences under Sections 420, 467, 468 & 471 of 1860 Code, was dismissed.

#2. Facts necessary for disposal of the present petition are that one Amar Singh Dua used to deal in sale and purchase of Deg scrap. He filed a complaint under Section 156 of the Code of Criminal Procedure, 1973 (for brevity, ‘1973 Code’) against the petitioner Rajesh Kumar and co-accused Jagdev Ram with the allegations that on request of the petitioner and co- accused, he supplied the said scrap to them and they took delivery thereof, whereafter, the petitioner Rajesh Kumar and co-accused Jagdev Ram issued two cheques bearing No.020781 and 020782 in his favour for discharge of liability against purchase price of the said scrap. The said cheques, when presented for encashment, were returned unpaid because of non-availability of funds. He then issued a notice under Section 138 of the Negotiable Instruments Act, 1881 (for brevity, ‘1881 Act’) to the petitioner Rajesh Kumar and co-accused Jagdev Ram. He received a reply to the said notice CRR-1088-2009 -3- in which it was mentioned that one Sh. Om Parkash is actual proprietor of M/s Om Foundry and Workshop, Ludhiana and not the petitioner Rajesh Kumar. The said two cheques were issued by the petitioner Rajesh Kumar and co-accused Jagdev Ram had removed the same from the record handed over to him by the said Om Parkash. The said cheques contain signatures of the petitioner Rajesh Kumar as proprietor of M/s Om Foundry and Workshop, Ludhiana despite the fact that he had nothing to do with the said foundry. The said complaint was sent by the concerned Magistrate to SHO of Police Station Division No.6, Ludhiana to register a case by treating copy

of the complaint as an FIR. The FIR in question was accordingly registered under Sections 420, 467, 468 and 471 of the 1860 Code. Investigation was set into motion. The petitioner Rajesh Kumar and co-accused Jagdev Ram were arrested. On conclusion of the investigation, a report under Section 173 of the 1973 Code was filed against them.

#3. On receipt of the said report, the concerned Magistrate complied with Section 207 of the 1973 Code. It then heard the State and the defence on the issue of framing of charges against the petitioner Rajesh Kumar and co-accused Jagdev Ram. After such hearing, it charge sheeted them under Sections 420, 467, 468 and 471 of the 1860 Code. The petitioner Rajesh Kumar and co-accused Jagdev Ram pleaded not guilty to the said charges and claimed trial. In support of its case, the prosecution examined following witnesses: - CRR-1088-2009 -4- Sr. No. Name of the witness Nature of evidence

#1. PW1 Amar Singh Dua Complainant

#5. PW2 Om Parkash Original owner of the cheques PW3 Ajit Singh Son of the complainant PW4 Karnail Singh Dishonouring of cheques PW5 Dinesh Kumar Accountant of M/s Om Foundry and Workship, Ludhiana

#4. In addition to examination of the said witnesses, the prosecution also proved the following documents in support of its case: - Sr. No. Exhibit Nature of document

#6. Ex.PA Ex.PB Ex.PC Ex.PD Bill dated 30.08.1997 issued by Dua Steel Co. Cheque bearing No.020781 dated 30.09.1997 Cheque bearing No.020782 dated 30.10.1997 Complaint filed by PW1 Amar Singh Dua Ex.PE/Mark ‘A’ Legal notice dated 17.11.1997 Ex.PF/Mark ‘B’ Reply dated 01.12.1997 to the said legal notice

#7. Mark ‘B’ Statement of PW5 Dinesh Kumar, Accountant under Section 161 of the 1973 Code

#5. Evidence of the prosecution was closed by Court order as it failed to conclude its evidence despite numerous opportunities.

#6. In their statements under Section 313 of the 1973 Code, the CRR-1088-2009 -5- petitioner Rajesh Kumar and co-accused Jagdev Ram pleaded innocence and false implication with a further prayer that their brother Mangal Singh @ Kali Charan had got registered a case bearing FIR No.13 dated

24.06.1996 under Section 3 of the Railways Act, 1989 against son Ajit Singh of the said Amar Singh Dua in respect of a matter relating to firm M/s Dua International of the said Mangal Singh @ Kali Charan. In that case, said Ajit Singh was taken in custody and was later on released on probation. Because of that grudge, the complainant Amar Singh Dua has falsely implicated the petitioner Rajesh Kumar and co-accused Jagdev Ram who are real brothers.

#7. In support of his case, the petitioner proved on record the handwritten bill/invoice issued by M/s Dua Steel Company as Ex.DA.

#8. On conclusion of the evidence, the concerned Magistrate heard the parties on merits. After such hearing, it convicted the petitioner Rajesh Kumar under Sections 420, 467, 468 and 471 of the 1860 Code but acquitted the co-accused Jagdev Ram of the charges framed against him, through a judgment dated 19.02.2007. Through a separate order of that date, the petitioner was sentenced in the following terms: - Rajesh Kumar under Section 420 of 1860 Code Rigorous imprisonment for 02 years with fine of Rs.200/-. In default of payment of fine, to further undergo RI for 15 days. CRR-1088-2009 -6- under Section 467 of 1860 Code Rigorous imprisonment for 03 years with fine of Rs.500/-. In default of payment of fine, to further undergo RI for 15 days. under Section 468 of 1860 Code Rigorous imprisonment for 02 years with fine of Rs.300/-. In default of payment of fine, to further undergo RI for 15 days. under Section 471 of 1860 Code Rigorous imprisonment for 03 years with fine of Rs.500/-. In default of payment of fine, to further undergo RI for 15 days.

#9. Aggrieved of such conviction and sentence, the petitioner filed an appeal before the Court of Sessions, Ludhiana. His such appeal was dismissed by the learned Additional Sessions Judge, Fast Track Court, Ludhiana vide judgment dated 24.04.2009.

#10. Aggrieved of the said dismissal, the petitioner filed the present revision petition. It was admitted on 01.05.2009 and sentence of the petitioner was suspended on 25.05.2009. He is stated to be on bail since then.

#11. I have heard Mr. Pawan Kumar, Advocate for Mr. Saurabh Arora, Advocate, learned counsel for the petitioner and Ms. Gurpreet Kaur Sarabha, learned AAG, Punjab, on merits of the petition in question.

#12. Learned counsel for the petitioner has argued that prosecution has failed to prove that handwriting and signatures on the abovestated cheques were of the petitioner; that initial burden to prove the said fact was upon the prosecution; that presumption under Section 139 of 1881 Act is rebuttable; that prosecution story is totally false and is belied by the CRR-1088-2009 -7- evidence on record; and that the learned Appellate Court and the Court of learned Magistrate have not considered the said aspects in true meaning thereof. He has accordingly prayed for acceptance of the revision petition. In support of his arguments, he has taken me to the evidence on record.

#13. On the other hand, learned AAG, Punjab has argued that the impugned judgments of conviction and order of sentence are as per evidence on record and law and do not at all call for interference in revisional jurisdiction; that the revisional jurisdiction is always a limited jurisdiction and evidence cannot be re-appreciated while exercising the same; and that if the conclusion arrived at by the Courts below is taken in true sense thereof, there is no ground available for exercise of revisional jurisdiction under Section 401 of the 1973 Code against the impugned judgments and order. She has accordingly prayed for dismissal of the revision petition.

#14. After such hearing and perusal, I may state that revisional powers of this Court can be exercised in terms of Section 401 of the 1973 Code. Since the petitioner has filed a revision petition against the impugned judgments and order, it has to be dealt within the parameters prescribed in the said Section. Said section is therefore reproduced as under:- “401. High Court's powers of revision.— (1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, CRR-1088-2009 -8- the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307, and, when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392. (2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. (4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. (5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of Justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly.” CRR-1088-2009 -9-

#15. I may also state that in respect of scope of revisional powers of a High Court, a three Judge Bench of Hon’ble the Supreme Court, in the report Pakalapati Narayana Gajapathi Raju & others Vs. Bonapalli Peda Appadu & another, (1975) 4 SCC 477, observed as under:- “3. Section 439 (1) of the Code of Criminal Procedure provides that in exercise of revisional jurisdiction, the High Court may exercise any of the powers conferred on a court of appeal. This provision is made expressly subject to sub-section (4) of Section 439 under which nothing contained in the section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. Section 439 has been interpreted in several decisions of this Court which have taken the view that the revisional jurisdiction, when invoked by a private complainant against an order of acquittal, ought not to be exercised lightly and that it can be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality or the prevention of a gross miscarriage of justice.(See Satyendra Nath Dutta v. Ram Narain, (1975) 3 SCC 398; Akalu Ahir v. Ramdeo Ram, (1974) 1 SCR 130; Changanti Kotaiah v. Goginoni Venkateshwara Rao, (1973) 3 SCR 867. It is clear from these decisions that the revisional jurisdiction cannot be CRR-1088-2009 -10- invoked merely because the lower court has not appreciated the evidence properly. The High Court has in its judgment referred to the decisions of this Court but in applying those decisions it has transgressed the limits of its revisional powers.”

#16. In respect of scope of revisional powers of a High Court, a three Judge Bench of Hon’ble the Supreme Court, in the report Duli Chand Vs. Delhi Administration, (1975) 4 SCC 649, observed as under:- “4. …... Now, the jurisdiction of the High Court in a Criminal Revision Application is severally restricted and it cannot embark upon reappreciation of the evidence, but even so, the learned single Judge of the High Court who heard the revision application, examined the evidence afresh at the instance of the appellant. This was, however, of no avail, as the learned single Judge found that the conclusion reached by the lower Courts that the appellant was guilty of gross negligence, was correct and there was no reason to interfere with the conviction of the appellant. …..

#5. …..The High Court in revision was exercising supervisory jurisdiction of a restricted nature and, therefore, it would have been justified in refusing to re-appreciate the evidence for the purpose of determining whether the concurrent finding of fact CRR-1088-2009 -11- reached by the learned Magistrate and the learned Additional Sessions Judge was correct. But even so, the High Court reviewed the evidence presumably for the purpose of satisfying itself that there was evidence in support of the finding of fact reached by the two subordinate courts and that the finding of fact was not unreasonable or perverse. The High Court came to the conclusion that the evidence clearly established that the death of the deceased was caused on account of the negligent driving of the bus by the appellant. …..”.

#17. In respect of such powers, a two Judge Bench of Hon’ble the Supreme Court, in the report Janata Dal Vs. H.S. Chowdhary, (1992) 4 SCC 305, observed as under:- “130. The object of the revisional jurisdiction under Section 401 is to confer power upon superior criminal Courts - a kind of paternal or supervisory jurisdiction - in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precaution or apparent harshness of treatment which has resulted on the one hand, or on the other hand in some undeserved hardship to individuals. The controlling power of the High Court is discretionary and it must be exercised in the interest of justice with regard to all facts and circumstances of each particular CRR-1088-2009 -12- case, anxious attention being given to the said facts and circumstances which vary greatly from case to case.

#131. xxxx

#132. The criminal Courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the Courts exist. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles.”

#18. While quoting observations made in Janata Dal’s report (supra) with approval, a three Judge Bench of Hon’ble the Supreme Court, in the report T.N. Dhakkal Vs. James Basnett & another, (2001) 10 SCC 419, observed as under:- “9. We are in agreement with the above exposition of law. We are of the opinion that though the High Court has revisional jurisdiction under Section 401 of the Code and can exercise its discretionary jurisdiction to correct miscarriage of justice, but CRR-1088-2009 -13- whether or not, there is justification for the exercise of that discretionary jurisdiction would depend upon the facts and circumstances of each case. The controlling power of the High Court under Section 401 of the Code being discretionary is required to be exercised only in the interest of justice, having regard to all the facts and circumstances of each particular case and not mechanically.”

#19. In respect of revisional jurisdiction of a High Court, a two Judge Bench of Hon’ble the Supreme Court, in the report State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC 452, observed as under:- “Having examined the impugned Judgment of the High Court and bearing in mind the contentions raised by the learned counsel for the parties, we have no hesitation to come to the conclusion that in the case in hand, the High Court has exceeded its revisional jurisdiction. In Its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying 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 miscarriage of justice. But the said revisional power CRR-1088-2009 -14- 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 re-appreciate the evidence and come to its own 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 tentamount to gross miscarriage of justice.”

#20. Observations made in Duli Chand’s report (supra) and those made in a report State of Orissa Vs. Nakula Sahu, (1979) 1 SCC 328 as well as Puttumana Illath’s report (supra) were approved by a three Judge Bench of Hon’ble the Supreme Court in the report Raj Kumar Vs. State of Himachal Pradesh, (2008) 11 SCC 76.

#21. Applying the said observations to the present case, I may state that the case set up by the prosecution in the FIR in question is that the co- accused Jagdev Ram removed the abovestated two cheques from the record handed over to him by the abovestated Om Parkash, proprietor of M/s Om Foundry and Workshop, Ludhiana and he, in turn, supplied the said cheques to the petitioner Rajesh Kumar who signed the same as proprietor of the said foundry and then they gave the said cheques for discharge of their liability qua purchase of the abovestated Deg Scrap. The prosecution CRR-1088-2009 -15- accordingly says that by doing the said acts, the petitioner has committed the abovementioned offences. In support of its case, as stated above, the prosecution examined 05 witnesses. Irrespective of the deposition of PW1 Amar Singh Dua, deposition of PW2 Om Parkash, stated to be proprietor of M/s Om Foundry and Workshop, Ludhiana, is material for deciding the petition in question. If his deposition dated 03.05.2001 is perused minutely, he categorically deposes therein that he is running the said foundry and has no contact with proprietor of Dua Steel Company; that he never entered any business transaction with the said firm; that one Naresh Kumar was Accountant of his firm living in Azad Nagar Mohalla at the relevant time; that in the month of September, 1997, he along with his cheque book and a bill book went to the said Accountant for completion thereof; that at that time, the said Naresh Kumar was not present in his house; that the co- accused Jagdev Ram was living in the house adjoining the house of the said Naresh Kumar; that he handed over the cheque book, bill book and vouchers to the co-accused Jagdev Ram and instructed him to hand over the said documents to the said Naresh Kumar; that after one week, he went to the said Naresh Kumar for collecting the abovestated cheque book, bill book and vouchers; that on collecting the documents and on verification, he came to know that four cheques i.e. 020781 to 020784 were missing from his cheque book; that when he asked his Accountant about the said missing, he replied that the cheque book returned to him had been delivered by the CRR-1088-2009 -16- co-accused Jagdev Ram; that he then asked the co-accused Jagdev Ram that four cheques are missing who replied that he will hand over the said cheques to him; and that he then came to know that two out of said four cheques have been given by the co-accused Jagdev Ram to Dua Steel Company as owner of M/s Om Foundry and Workshop, Ludhiana and the said cheques were signed by the petitioner Rajesh Kumar who is brother of the co-accused Jagdev Ram. Therefore, his statement before the Court establishes that the said Naresh Kumar was his Accountant and was living in the house adjoining the house of the co-accused Jagdev Ram. It also establishes that the alleged cheque book was given by the said prosecution witness to the co-accused Jagdev Ram, who in turn, stole four cheques therefrom and then the petitioner and he handed over two cheques to proprietor of Dua Steel Company and the said cheques contain signatures of the petitioner Rajesh Kumar as proprietor of M/s Om Foundry and Workshop, Ludhiana. At the same time, the prosecution itself has examined PW5 Dinesh Kumar, an Accountant. If his deposition is perused minutely, it comes out that he has inter-alia deposed that in the year 1997, he was working as an Accountant for M/s Om Foundry and Workshop, Ludhiana; that he checked the accounts book of the concerned firm which were handed over to him by its proprietor whose name was Omi; that he used to return the said book after 2-3 days; that his statement was not recorded by the Investigating Officer; and that he does not know about any duplicate CRR-1088-2009 -17- cheque. On his such deposition, on request of learned Assistant Public Prosecutor, he was declared hostile. In his cross-examination by the learned Assistant Public Prosecutor, he inter alia deposed that it is incorrect that he had told to the police that Jagdev Ram took away the cheques out of the cheque book and handed over the same to Amar Singh Dua which were signed by the petitioner Rajesh Kumar; that it is incorrect to suggest that his statement was recorded by the Investigating Officer without any any addition or omission; and that it is also incorrect to suggest that the co- accused Jagdev Ram took away the cheques from cheque book and handed over the same to Amar Singh Dua and signatures were forged by the petitioner Rajesh Kumar. In his cross-examination on behalf of the defence, he inter alia deposed that in the month of September, 1997, proprietor of M/s Om Foundry and Workshop, Ludhiana namely Om Parkash came to his house and handed over to him some account books as well as cheque books; that he returned accounts, books and cheques after 02 days of checking; that counter-foil of the cheque book was complete and the proprietor Om Parkash had counted the cheque book before receiving; that he had checked the counter-foil only; that said cheques did not come to his hands during the transaction; that when Om Parkash, proprietor of M/s Om Foundry and Workshop, Ludhiana, had handed over the cheque book to him, it only contained counter-foil and no cheque leaf; that he had no relation with the co-accused Jagdev Ram; and that co-accused Jagdev Ram never handed CRR-1088-2009 -18- over to him any cheque relating to M/s Om Foundry and Workshop, Ludhiana. His such deposition establishes that the story propounded by the prosecution in the FIR in question and in the evidence of PW1 Amar Singh Dua as well as PW2 Om Parkash is totally a false story. In fact in his deposition before the Court, PW2 Om Parkash has deposed that one Naresh Kumar was his Accountant whereas PW5 Dinesh Kumar has categorically deposed that it was he who was Accountant of M/s Om Foundry and Workshop, Ludhiana and the cheque book was handed over by PW2 Om Parkash to him. His deposition also establishes that only counter-foil was handed over to him and it did not contain any cheque leaf. Therefore, it is established that the prosecution case and depositions of its material witnesses especially PW1 Amar Singh Dua and PW2 Om Parkash are false and contrary to the deposition of its own witness i.e. PW5 Dinesh Kumar.

#22. I may also state that if cross-examination conducted on the prosecution witnesses is perused minutely, the defence has categorically contended that the signatures on the abovestated two cheques are not of the petitioner Rajesh Kumar and in fact have been forged. The case in question was a criminal case. In view thereof, the prosecution was required to prove that the signatures on the cheques in question were in fact of the petitioner Rajesh Kumar. It had such liability even if the petitioner Rajesh Kumar would have remained silent about his signatures and handwriting on the said cheques. So far as present case is concerned, the petitioner says that the CRR-1088-2009 -19- signatures on the said cheques are not his signatures and in fact have been forged. In view thereof, it was bounden duty of the prosecution to prove that the said cheques in fact contain signatures and/or handwriting of the petitioner Rajesh Kumar. At the same time, there is no expert evidence on record to establish or hold that the said cheques contain signatures of the petitioner. No one says that the petitioner Rajesh Kumar signed the said cheques in his/their presence. If it is so, it cannot at all be held that the said cheques contain signatures of the petitioner Rajesh Kumar. True it is that the prosecution had moved an application dated 02.11.1998 before the concerned Magistrate for obtaining handwriting and signature. At the same time, the said application was disposed off without any direction to the petitioner and therefore his statement that he does not want to give his handwriting and signature pales into insignificance. There is no order on record directing the petitioner to give his handwriting and signature. Once I observe so, it cannot be assumed that the said cheques were in fact issued by the petitioner as proprietor of M/s Om Foundry and Workshop, Ludhiana.

#23. There is one more angle of the matter. As per the prosecution case, the cheques in question were stolen by the co-accused Jagdev Ram and he allegedly handed over the said cheques to the petitioner Rajesh Kumar who signed the same and then they delivered the said cheques to PW1 Amar Singh Dua, allegedly for discharge of liability of the petitioner CRR-1088-2009 -20- Rajesh Kumar and his co-accused Jagdev Ram against purchase of the abovestated Deg Scrap. At the same time, the concerned Magistrate acquitted the co-accused Jagdev Ram. In view of said acquittal granted to the said co-accused, chain of events in the present case stands broken. If it is broken, the petitioner Rajesh Kumar cannot at all be held guilty for the offences in question with the evidence adduced on record. In view thereof, he also deserves to be granted the same benefit which was granted to his co- accused Jagdev Ram.

#24. The abovestated reasoning and discussion show that the impugned judgments of conviction suffer from unreasonableness and are perverse. The same contain glaring features which tantamount to miscarriage of justice. Such judgments have neglected to exercise proper precaution and are causing undeserved hardship to the petitioner. Revisional powers of a High Court should be exercised to do real and substantial justice. The above-stated facts and observations make the present case a fit case for exercise of revisional jurisdiction against the impugned judgments and order.

#25. For what has been stated above, I am of the considered opinion that the impugned judgments and order of sentence cannot legally be sustained. The same, with all consequential proceedings, are accordingly set aside. In turn, the petitioner Rajesh Kumar is acquitted of the charges framed against him in the case in question by extending benefit of doubt to CRR-1088-2009 -21- him. His bail and surety bonds stand discharged. Present revision petition is allowed in the abovestated terms.

#26. Interim application/s, if any, stand/s disposed off.

01.08.2026 vishnu [ RAMESH CHANDER DIMRI ] JUDGE Whether speaking/reasoned : Yes/No Whether reportable : Yes/No