Shyam Sundar Agrawal Vs Gulbir Singh Bhatiya

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2024:CGHC:44258

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRMP No. 584 of 2023

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1 - Shyam Sundar Agrawal Son Of Mahavir Prasad Agrawal, Aged About 52 Years Resident Of Jindal Nivas Ram Sagar Para, Tashil And District Raipur (Chhattisgarh)

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... Petitioner

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versus

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1 - Gulbir Singh Bhatiya Son Of Shri Gulab Singh Bhatiya, Aged About 66 Years Resident Of Infront Of Raj Bhawan, Civil Line, Tashil And District - Raipur (Chhattisgarh)

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2 -State Of Chhattisgarh	Through District Magistrate Raipur (Chhatisgarh) ... Respondents
For Petitioner	: Mr. Shashi Kumar Kushwaha, Advocate
For Respondent No. 1	: Ms. Swati Agrawal, Advocate on behalf of Mr. Pankaj Agrawal, Advocate
For State/Respondent No. 2	: Ms. Laxmeen Kashyap, Panel Lawyer

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Hon'ble Shri Justice Narendra Kumar Vyas Order on Board

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13.11.2024

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The petitioner has filed the present Cr.M.P. under Section 482 of the Cr.P.C. against the order dated 28.01.2023 passed by the learned 11^th Additional Session Judge Raipur, District Raipur (CG) in Criminal Revision No. 99 of 2021 by which the learned 11^th Additional Sessions Judge, Raipur has dismissed the criminal revision as not maintainable as per Section 397(2) of the Cr.P.C.

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The brief facts reflected from the record are that the complainant/respondent No. 2 has filed complaint under Section 138 of Negotiable Instrument Act before learned Judicial Magistrate First Class, Raipur which is registered as Criminal Case No. 20283 of 2014 alleging that there was an agreement with regard to purchase of property and accordingly the accused has given a cheque payable at Bank of Baroda, Pandari Branch dated 30.11.2013 for Rs. 52,00,000/which was dishonored due to insufficient fund. The complainant/respondent No. 2 has sent the registered notice dated 25.02.2014 as required under Section 138 of the N.I. Act and demanded money but no amount of cheque was given to the complainant which has compelled him to file a complaint under Section 138 of Negotiable Instrument Act on 20.03.2014. The complainant was examined on 25.01.2020 and in examination in paragraph 23 he has mentioned income of Rs. 52,00,000/-in annual return of 2011-2012, therefore, the applicant has moved an application under Section 91 of the Cr.P.C. for summoning the defence witness Income Tax Officer along with records of Bhatia Petrol Pump for the financial year 20112012 along with necessary documents. Accordingly, he has submitted an application on 12.02.2021 which was rejected, against that he has preferred criminal revision which was rejected on 02.03.2021 as not maintainable and against the said order he has preferred Cr.M.P.

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Learned counsel for the petitioner would submit that learned revisional Court has rejected the application as not maintainable in view of bar contained in Section 397(2) as well as Section 399 of the Cr.P.C. as the application under Section 91 of the Cr.P.C. and Section 311 of the Cr.P.C. are interlocutory orders against which revision is not

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maintainable. He would submit that the learned revisional Court should have considered the provisions of Sections 397, 398 in its proper perspective and thus would pray for allowing the instant Cr.M.P.

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Per contra learned counsel for respondent No.1 would submit that impugned orders dated 28.01.2023 & 02.03.2021 are legal and justified and once the cheque has been issued it is incumbent upon the applicant to make the default good but he has deliberately and mischievously not made the payment, thus he is liable to be prosecuted and accordingly the impugned orders are legal and justified and does not warrant interference of this Court.

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I have heard learned counsel for the parties and perused the record.

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The point to be determined by this Court is whether the impugned order dated 02.03.2021 passed by the learned Judicial Magistrate First Class is interlocutory, intermediate or final order which is precondition for maintaining the revision under Section 397 of the Cr.P.C.

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To substantiate this point, it is expedient for this Court to extract Section 397 of the Cr.P.C. which is reproduced below-

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397. Calling for records to exercise powers of revision.

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(1)The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying 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, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation. - All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this subsection and of Section 398.

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(2)The powers of revision conferred by sub-section (1) shall not be

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exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

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(3)If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.

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From bare perusal of Section 397(2) it is quite vivid that if it is an interlocutory then revision is not maintainable. From perusal of the impugned order dated 02.03.2021 by which right of the accused is being adversely affected, therefore, it cannot be said to be interlocutory order but at best it is inter-mediatory order where revision is maintainable. The issue with regard to maintain the criminal revision has already come up for consideration before the Hon’ble Supreme Court in various decisions, particularly in case of Rajendra Kumar Sitaram Pande vs Uttam {1999 3 SCC 134} wherein the Hon’ble Supreme Court has considered the provision of Section 397 and held as under :-

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The very object of conferring revisional jurisdiction upon the superior criminal courts is to correct miscarriage of justice arising from misconception of law or irregularity of procedure.

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Discretion in the exercise of revisional jurisdiction should, therefore, be exercised within the four corners of Section 397, whenever there has been miscarriage of justice in whatever manner. Under sub-section (2) of Section 397, there is a prohibition to exercise revisional jurisdiction against any interlocutory order so that inquiry or trial may proceed without any delay. But the expression "interlocutory order" has not been defined in the Code. In Amar Nath & Ors. vs. State of Haryana 1978(1) SCR 222, this Court has held that the expression "interlocutory order" in Section 397(2) has been used in a restricted sense and not in a broad or artistic sense and merely denotes orders of purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties and any order which substantially affects the right of the parties cannot be said to be an "interlocutory order". In Madhu Limaye vs. State of Maharashtra 1978(1) SCR 749, a three Judge Bench of this Court has held an order rejecting the plea of the accused on a point which when accepted will conclude the particular proceeding, cannot be held to be an interlocutory order. In V.C. Shukla vs. State 1980(2) SCR 380, this Court has held that the term "nterlocutory order"used in the Code of

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Criminal Procedure has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial and the revisional power of the High Court or the Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi final. This being the position of law, it would not be appropriate to hold that an order directing issuance of process is purely interlocutory and, therefore, the bar under sub- section (2) of Section 397 would apply. On the other hand, it must be held to be intermediate or quasi final and, therefore, the revisional jurisdiction under Section 397 could be exercised against the same. The High Court, therefore, was not justified in coming to the conclusion that the Sessions Judge had no jurisdiction to interfere with the order in view of the bar under subsection (2) of Section 397 of the Code.

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Again the Hon’ble Supreme Court in case of Amit Kumar vs. Ramesh

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Chandra and Another {2012 (9) SCC 460} has considered the provisions of revisional jurisdiction under Sections 397 and 401 of the Cr.P.C. by the Sessions Judge and held as under :-

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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 wellfounded error and it may not be appropriate for the court to scrutinize the orders, which upon the face of it bears 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.

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The jurisdiction of the Court under Section 397 can be exercised so as to examine the correctness, legality or proprietary of an order passed by the trial court or the inferior court, as the case may be. Though the section does not specifically use the expression ‘prevent abuse of process of any court or otherwise to secure the ends of justice’, the jurisdiction under Section 397 is a very limited one. The legality, proprietary or correctness of an order passed by a court is the very foundation of exercise of jurisdiction under Section 397 but ultimately it also requires justice to be done. The jurisdiction could be exercised where there is palpable error, non-compliance with the provisions of law, the decision is completely erroneous or where the judicial discretion is exercised arbitrarily. On the other hand, Section 482 is based upon the maxim quando lex liquid alicuiconcedit, conceder videtur id quo res ipsa esse non protest, i.e., when the law gives anything to anyone, it also gives all those things without which

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the thing itself would be unavoidable. The Section confers very wide power on the Court to do justice and to ensure that the process of the Court is not permitted to be abused.

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From above stated legal position and considering the tenure of the order passed by the learned Judicial Magistrate First Class, it is quite vivid that the right of the accused is being adversely affected if that application is not allowed as he will not be able to rebut the evidence brought on record as such, it cannot be said to be interlocutory order but it is an intermediate order, as such, revision was very much maintainable before the revisional Court. Thus, finding recorded by the learned revisional Court is contrary to the well settled position of law and accordingly the order passed by the learned revisional Court is set-aside.

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So far as the other submission that on merit also there is no illegality in the impugned order passed by the Magistrate First Class by which application filed by the applicant for production of document has been rejected is being considered. The petitioner vide its application has sought for direction to the complainant to produce the income tax return for the year 2011-12 as the complainant in evidence had deposed that there is income of 52 lakhs for the financial year 2011-12 which is equivalent to the amount of the cheque, thus, it is necessary that complainant be directed to produce the income tax return of the Bhatia Petrol Pump for the year 2011-12 as in absence of this the valuable right of the accused to defend his case is being adversely affected. The said document can definitely give light to the controversy involved in the case. Thus, learned trial Court as well as learned revisional Court have committed illegality in not allowing the application, therefore, the impugned order dated 02.03.2021 passed by

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learned Judicial Magistrate First Class in complaint case No. 20283 of 2014 as well as order passed by the learned revisional Court is setaside and quashed.

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Learned Judicial Magistrate First Class is directed to issue direction to the complainant to produce the documents of income tax return of the Bhatia Petrol Pump for the year 2011-2012 on the next date of hearing.

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With this direction, the instant Cr.M.P. is allowed. The interim order passed by this Court earlier is vacated.

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Sd/-

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(Narendra Kumar Vyas)

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Judge

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Bhumika

Shyam Sundar Agrawal v. Gulbir Singh Bhatiya

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Shyam Sundar Agrawal v. Gulbir Singh Bhatiya

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