Parveez Alam, Vs the Staste of Ap Rep by Its Pp Hyd., & Another

The Revision has been preferred under Sections 397 & 401 of the Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C.,’) against the judgment in Criminal Appeal No.128 of 2006, dated 26.12.2008 passed by the learned Sessions Judge, Vizianagaram, confirming the judgment passed by the learned Special Judicial Magistrate of First Class (Excise), Vizianagaram in C.C.No.247 of 2005 dated 07.09.2006 for the offence under Section 138 of

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Negotiable Instruments Act, 1872 (for brevity ‘the N.I.Act’) sentencing the revisionist to undergo Rigorous Imprisonment for a period of three months and to pay a fine of Rs.300/-, in default, Simple Imprisonment for a period of one month.

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I have heard the arguments of learned counsel for the revisionist, learned counsel for the second respondent and the learned Assistant Public Prosecutor appearing for respondent No.1.

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Mr.G.V.S.Mehar Kumar, learned counsel for the petitioner/revisionist while reiterating the grounds of the revision, submitted that when the alleged cheque amount was only Rs.1,860/- awarding three months Rigorous Imprisonment was too harsh and unjust to the facts of the case and it was highly excessive to the gravity of the amount involved in the alleged cheque; complainant could not prove his version; the Courts below failed to observe the cross-examination of PW1, for a question posed by the counsel for the petitioner about the presentation of the cheque, the 2^nd respondent categorically deposed in his cross examination that they presented the cheque for collection of loan amount of Rs.26,000/- for purchase of T.V. and washing machine and the 2^nd respondent did not show any document; and PW1 also deposed in cross examination that the petitioner presented 24 cheques for assurance only; the courts below failed to observe that the 2^nd respondent failed to prove that the debt in dispute is a legally enforceable debt as the 2^nd

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respondent is silent in filing the receipts, warrant cards and bills or invoice for the T.V. and washing machine sold to the petitioner.

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Per contra, Mr.O.Uday Kumar, learned counsel for second respondent vehemently argued that the learned Magistrate and also the Appellate Court rightly appreciated the evidence on correct perspective and no need to interfere with the order passed by the learned Magistrate. There are concurrent findings about the guilty of the revisionist and the revisionist was failed to discharge his burden as contemplated under the presumptions of ‘the N.I.Act’. As there are no material irregularities or error of law apparent on the face of the record, the judgment of the learned Sessions Judge, Vizianagaram is not required to be interfered and set aside and thus, urged to dismiss the revision.

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Ms.Akhila Naidu, learned Assistant Public Prosecutor supported the version of the learned counsel for the second respondent and urged to dismiss this revision as it is not maintainable.

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Thoughtful consideration is bestowed on the arguments advanced. I have perused the material on record.

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Now the point for consideration is:

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Whether the judgment in Crl.A.No.128 of 2006 dated 26.12.2008, passed by the learned Sessions Judge, Vizianagaram, is correct, legal, and proper with respect to

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its finding, sentence, or judgment, and there are any material irregularities? And to what relief?

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It is apposite to refer the Hon’ble Apex Court in Bindeshwari Prasad Singh v State of Bihar¹ , wherein at Paragraph Nos.12 & 13 it is held as under:

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“12. … We have carefully considered the material on record and we are satisfied that the High Court was not justified in re-appreciating the evidence on record and coming to a different conclusion in a revision preferred by the information under Section 401 of the Code of Criminal Procedure, Sub-section (3) of Section 401 in terms provides that nothing in Section 401 shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction. The aforesaid sub-section, which places a limitation on the powers of the revisional Court, prohibiting it from convert a finding of acquittal into one of conviction, is itself indicative of the nature and extent of the revisional power conferred by Section 401 of the Code of Criminal Procedure. If the High Court could not convert a finding of acquittal into one of the conviction directly, it could not do so indirectly by the method of ordering a re-trial. It is well settled by a catena of decisions of this Court that the High Court will ordinarily not interfere in revision with an order of acquittal except in exceptional cases where the interest of public justice requires interference for the correction of a manifest illegality or the prevention of gross miscarriage of justice. The High Court will not be justified in interfering with an order of acquittal merely because the trial Court has taken a wrong view of the law or has erred in appreciation of evidence. It is neither possible nor advisable to make an exhaustive list of circumstances in which exercise of revisional jurisdiction may be justified, but decisions of this Court have laid down the parameters of exercise of revisional jurisdiction by the High Court under Section 401 of the Code of Criminal Procedure in an appeal against acquittal by a private party.

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... In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in

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1 (2002) 6 SCC 650

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exercise of its revisional jurisdiction. It has repeatedly been held that the High Court should not re-appreciate the evidence to reach a finding different from the trial Court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted.”

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9. The Hon’ble Supreme Court in D.Stephens v Nosibolla² at Paragraph

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No.10 held as under:

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“The revisional jurisdiction conferred on the High Court under Section 439, Cr.P.C., is not to be lightly exercised, when it is invoked by a private complainant against an order of acquittal, against which the Government has no right of appeal under Section 417. It could 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. This jurisdiction is not ordinarily invoked or used merely because the lower court has taken a wrong view of the law or misappreciated the evidence on record.”

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10. The Hon’ble Apex Court in K Chinnaswamy Reddy v State of A.P³ , at Paragraph No.7 held as under:

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“7. It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal; but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Subsection (4) of S. 439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on the High Court to see that it does not, convert the finding of acquittal into one of conviction by the indirect method of ordering retrial when it cannot itself

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2 AIR 1951 SC 196

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3 AIR 1962 SC 1788

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directly convert a finding of acquittal into a finding of conviction. This places limitations on the power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised. It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. We may, however, indicate some cases of this kind which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be: where the trial court has no jurisdiction to try the case but has still acquitted the accused, or where the trial court has wrongly shut out evidence which the prosecution wished to produce, or where the appeal court has wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked either by the trial court or by the appeal court, or where the acquittal is based on a compounding of the offence, which is invalid under the law. These and other cases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably interfere with an order of acquittal; and in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not do directly in view of the provisions of Section 439 (4). We have, therefore, to see whether the order of the High Court setting aside the order of acquittal in this case can be upheld on these principles.”

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11. Keeping in view of the observations made in the above judgments, that

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appreciation of evidence is not permissible by this revisional Court while exercising jurisdiction under Section 397 and 401 of ‘the Cr.P.C’; this revision was to decided and disposed of.

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As seen from the record, as per the evidence of PW1, he had clearly testified that the revisionist had issued a cheque for an amount of Rs.1,860/vide Ex.P2 and it was dishonoured, later PW1 was constrained to issue a statutory notice. Since there was no reply from the revisionist, he was constrained to file complaint. The learned Magistrate, in an elaborate trial,

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examined the complainant/second respondent as PW1 and got marked Ex.P1 to Ex.P6. To buttress his contention and to rebut the presumption under Section 139 of ‘the N.I.Act’, the revisionist had neither filed any document nor proved himself as one of the witnesses, nor marked any document. That shows that there was no substantial believable contention raised by the revisionist. The learned trial Court found the revisionist guilty for the offence under Section 138 of ‘the N.I.Act’ and convicted him under Section 255(2) of ‘the Cr.P.C’. and sentenced him to undergo Rigorous Imprisonment for a period of three months and to pay a fine of Rs.300/-, in default of payment of fine, he had to suffer Simple Imprisonment for one month. The learned Appellate Court also on correct perspective appreciated the evidence of PW1 and relied on the exhibits and did not incline to interfere with the judgment passed by the learned Magistrate. There are no material irregularities committed by the learned Trial Court while conducting the trial. There was no perverse finding with respect to the evidence. Nothing contrary is elicited from the evidence of PW1 to doubt his evidence. There was no error apparent on law or on procedure in conducting the case by the Courts below and had rightly found the revisionist guilty for the offence under Section 138 of ‘the N.I.Act’. Therefore, the conviction is well maintained.

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The record reveals that the revisionist had already paid Rs.300/- fine. The record further reveals that the revisionist underwent imprisonment for a period of 9 days. The offence was taken place in the year 2004, nearly 21 years passed by. The right to speedy trial is a fundamental right as per the

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judgment of the Hon’ble Supreme Court in Hussainara Khatoon (IV) v. Home Secretary State of Bihar . This right includes speedy disposal of appeals. In addition to the appeals, the right to a speedy trial also includes criminal revisions as per the decision of the Hon’ble Apex Court in Rajdeo Sharma v. State of Bihar . The Supreme Cout held that the revisionist is also entitled for speedy trial. The cheque amount was only Rs.1,860/-. The revisionist submitted to the learned Magistrate that he was a sole bread winner of the family and he got old aged parents and three children, he was earning only Rs.30/- or Rs.40/- per day as taxi driver. Imposition of three months Rigorous Imprisonment for an amount of Rs.1,860/- covered under cheque is highly excessive and exorbitant.

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The prosecution proved the guilt of the accused beyond all reasonable doubt under Section 138 of ‘the N.I.Act’. Therefore, the learned Trial Court rightly convicted the revisionist. Similarly, the learned Appellate Court also confirmed the same. Re-appreciation of evidence is not possible in the revision case like a second appellate Court as laid down in the decisions in Bindeshwari Prasad Singh, D Stephens and K Chinnaswamy Reddy . In

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view of the fact that the revisionist has already undergone nine (09) days detention in the jail, the sentence of imprisonment awarded by the learned trial Court and confirmed by the learned Appellate Court are required to be interfered and reduced to the sentence of imprisonment already undergone.

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In the result, the Criminal Revision Case is partly allowed, confirming the conviction for the offence under Section 138 of ‘the N.I.Act’, while modifying the sentence of imprisonment of three months Rigorous Imprisonment to the imprisonment already undergone by the revisionist. There shall be no order as to costs.

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As a sequel, interlocutory applications, if any pending, shall stand closed.

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_________________________ DR. Y. LAKSHMANA RAO, J.

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Date: 04.03.2025 sj

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