Manju Vaidya Vs State of Hp and Anr.

( 2025:HHC:26388 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Revision No. 718 of 2024. Reserved on: 31.07.2025 Date of Decision: 06.08.2025.

Manju Vaidya ...Petitioner Versus
State of Himachal Pradesh & Anr. ..Respondents
Coram
Hon’ble Mr Justice Rakesh Kainthla,Judge.
Whether approved for reporting?¹ No.
For the Petitioner : Mr. H. S. Rangra, Advocate.
For Respondent No.1/State : Mr. Jatinder K. Sharma, Additional Advocate General.
For Respondent No.2 : Ms. Suchitra Sen, Advocate.

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Rakesh Kainthla, Judge

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The present revision is directed against the judgment dated 09.09.2024, passed by learned Sessions Judge, Mandi, District Mandi, H.P. (learned Appellate Court), vide which the judgment of conviction dated 29.11.2023 and order of sentence dated 08.05.2024, passed by learned Chief Judicial Magistrate, Mandi, District Mandi, H.P. (learned Trial Court) were upheld. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.)

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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Briefly stated, the facts giving rise to the present revision are that the complainant filed a complaint before the learned Trial Court against the accused for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (NI Act). It was asserted that the complainant was running his business under the name and style of M/s Mega Star Prop, at Ram Nagar, Mandi Town, Tehsil Sadar, District Mandi, H.P. Smt. Vineeta Arora is its proprietor. The accused was known to the complainant, and she purchased food grains/Karyana items from the complainant, amounting to ₹1,45,098/-. The accused issued a cheque of ₹1,45,098/- to discharge her legal liability. The complainant presented the cheque to her bank for realisation of the amount, but it was dishonoured with the endorsement “funds insufficient”. The complainant issued a notice to the accused asking her to repay the amount within 15 days of the receipt of the notice. The notice was duly served upon the accused, but she failed to repay any money despite the receipt of the notice of demand. Hence, a complaint was filed before the learned Trial Court to take action against the accused as per the law.

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The learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, a notice of

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accusation was put to her for the commission of an offence punishable under Section 138 of the NI Act, to which she pleaded not guilty and claimed to be tried.

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The complainant examined Gurpreet Singh, her Power of Attorney (CW1), to prove her complaint.

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The accused, in her statement recorded under Section 313 of Cr.P.C., admitted the issuance of the cheque but stated that the cheque was issued as security. She admitted that a notice was sent by the complainant to her. She claimed that she had cleared the entire cheque amount after the receipt of the notice. A false complaint was filed against her. She examined Rakesh Singh (DW1).

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Learned Trial Court held that the issuance of the cheque was not disputed by the accused. The plea taken by the accused that payment was made by her was not established. The cheque was dishonoured with the endorsement “insufficient funds”. The notice was served upon the accused. She failed to repay the money despite the receipt of a valid legal notice of demand. All the ingredients of the commission of an offence punishable under Section 138 of the NI Act were duly satisfied. Hence, the accused was convicted for the commission of an offence punishable under

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Section 138 of the NI Act and was sentenced to undergo simple imprisonment for 02 months, pay a fine of ₹1,95,000/and in default of payment of fine, to undergo furhter simple imprisonment for 01 month.

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Being aggrieved by the judgment and order passed by the learned Trial Court, the accused preferred an appeal which was decided by the learned Sessions Judge, Mandi (learned Appellate Court). Learned Appellate Court concurred with the findings recorded by the learned Trial Court that the issuance of the cheque was not disputed, and a presumption would arise that the cheque was issued in discharge of the legal liability for consideration. The evidence led by the accused was not sufficient to rebut the presumption. The cheque issued as security can also attract liability under Section 138 of the NI Act. The cheque was dishonoured with the endorsement “insufficient funds”. The notice was duly served upon the accused. The plea taken by her that she had paid the amount was not established by any material on record. All the ingredients of Section 138 of the NI Act were duly satisfied. Learned Trial Court had imposed an adequate sentence, and no interference was required with it. Hence, the appeal was dismissed.

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Being aggrieved by the judgments and order passed by the learned Courts below, the accused has preferred the present revision, asserting that the learned Courts below erred in appreciating the material placed before them. There were lots of contradictions in the statement of Gupreet Singh (CW1). He stated that there was no transaction between the accused and the complainant. The transaction was between the complainant and Rakesh Vaidya. This showed that the cheque was not issued in discharge of the legal liability. This also probablised the version of the accused that the cheque was issued as security and was misused by the complainant. The benefit of the Probation of Offenders Act was not granted to the accused. Therefore, it was prayed that the present revision be allowed and the judgments and order passed by the learned Courts below be set aside.

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I have heard Mr. H. S. Rangra, learned counsel for the petitioner/accused, Mr. Jitender K. Sharma, learned Additional Advocate General for respondent No.1-State and Ms. Suchitra Sen, learned counsel for respondent No.2/complainant.

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Mr. H. S. Rangra, learned counsel for the petitioner/accused, submitted that the complainant came with

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a specific case that the accused had purchased food grains/karyana articles from her. Her witness Gurpreet Singh stated on the other hand that the husband of the accused had purchased the articles from the complainant. Thus, the very premise of the complaint that the cheque was issued to discharge the legal liability of the cost of food grains/ karyana articles was not proved. The learned Courts below failed to appreciate this aspect, therefore, he prayed that the present revision be allowed and the judgments and order passed by the learned Courts below be set aside.

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Mr. Jitender K. Sharma, learned Additional Advocate General for respondent No.1-State, submitted that the State was not a party to the complaint and has nothing to submit.

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Ms. Suchitra Sen, learned counsel for respondent No.2/complainant, submitted that a cheque can be issued to discharge legal liability of some other person and merely because Gurpreet Singh stated that the transaction was between the husband of the accused and the complainant is not sufficient to rebut the presumption attached to the cheque. The issuance of the cheque was not disputed, and the plea was taken that the money was paid; however, this plea was not proved. Learned Courts below had rightly appreciated the

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material on record, and this Court should not interfere with the concurrent findings of fact recorded by the learned Courts below; hence, she prayed that the present revision be dismissed.

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I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

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It was laid down by the Hon’ble Supreme Court in Malkeet Singh Gill v. State of Chhattisgarh , (2022) 8 SCC 204: (2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that the revisional court does not exercise an appellate jurisdiction and it can only rectify the patent defect, errors of jurisdiction or the law. It was observed at page 207: -

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“10. Before adverting to the merits of the contentions, at the outset, it is apt to mention that there are concurrent findings of conviction arrived at by two courts after a detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against conviction is not supposed to exercise jurisdiction like the appellate court, and the scope of interference in revision is extremely narrow. Section 397 of the Criminal Procedure Code (in short “CrPC”) vests jurisdiction to satisfy 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. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be a wellfounded error which is to be determined on the merits of

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individual cases. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings.

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This position was reiterated in State of Gujarat v.

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Dilipsinh Kishorsinh Rao, (2023) 17 SCC 688: 2023 SCC

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OnLine SC 1294 , wherein it was observed at page 695:

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The power and jurisdiction of the Higher Court under Section 397CrPC, which vests the court with the power to call for and examine records of an inferior court, is for the purposes of satisfying itself as to the legality and regularities of any proceeding 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 or the perversity which has crept in such proceedings.

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It would be apposite to refer to the judgment of this Court in Amit Kapoor v. Ramesh Chander [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460: (2012) 4 SCC (Civ) 687: (2013) 1 SCC (Cri) 986] , where scope of Section 397 has been considered and succinctly explained as under: (SCC p. 475, paras 12-13)

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“ 12 . 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 well-founded error, and it may not be appropriate for the court to scrutinise the orders, which, upon the face of it, bear 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

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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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13 . Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in the exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much-advanced stage in the proceedings under CrPC.”

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This Court in the aforesaid judgment in Amit Kapoor case [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986] has also laid down principles to be considered for exercise of jurisdiction under Section 397 particularly in the context of prayer for quashing of charge framed under Section 228CrPC is sought for as under : ( Amit Kapoor case [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986 ], SCC pp. 482-83, para 27)

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“ 27 . Having discussed the scope of jurisdiction under these two provisions, i.e., Section 397 and Section 482 of the Code, and the fine line of jurisdictional distinction, it will now be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but inherently impossible to state such principles with precision. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either

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in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be.

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27.1 . Though there are no limits to the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly the charge framed in terms of Section 228 of the Code, should be exercised very sparingly and with circumspection, and that too in the rarest of rare cases.

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27.2 . The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion, and where the basic ingredients of a criminal offence are not satisfied, then the Court may interfere.

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27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.

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27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.

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27.13 . Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is

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even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records, but is an opinion formed prima facie.”

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The revisional court cannot sit as an appellate court and start appreciating the evidence by finding out inconsistencies in the statement of witnesses, and it is not legally permissible. The High Courts ought to be cognizant of the fact that the trial court was dealing with an application for discharge.

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It was held in Kishan Rao v. Shankargouda , (2018) 8 SCC 165: (2018) 3 SCC (Cri) 544: (2018) 4 SCC (Civ) 37: 2018 SCC OnLine SC 651 that it is impermissible for the High Court to reappreciate the evidence and come to its conclusions in the absence of any perversity. It was observed at page 169:

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“12. This Court has time and again examined the scope of Sections 397/401 CrPC and the grounds for exercising the revisional jurisdiction by the High Court. In State of Kerala v. Puttumana Illath Jathavedan Namboodiri [State of Kerala v. Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC 452: 1999 SCC (Cri) 275] , while considering the scope of the revisional jurisdiction of the High Court, this Court has laid down the following: (SCC pp. 454-55, para 5)

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“ 5 . … In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings to satisfy 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 a miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate

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court, nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its 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 tantamount to a gross miscarriage of justice. On scrutinising the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation in concluding that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence. …”

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Another judgment which has also been referred to and relied on by the High Court is the judgment of this Court in Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke [Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke, (2015) 3 SCC 123: (2015) 2 SCC (Cri) 19]. This Court held that the High Court, in the exercise of revisional jurisdiction, shall not interfere with the order of the Magistrate unless it is perverse or wholly unreasonable or there is non-consideration of any relevant material; the order cannot be set aside merely on the ground that another view is possible. The following has been laid down in para 14: (SCC p. 135)

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“ 14 . … Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power of the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of

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the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with the decision in exercise of their revisional jurisdiction.”

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In the above case, the conviction of the accused was recorded, and the High Court set aside [ Dattatray Gulabrao Phalke v. Sanjaysinh Ramrao Chavan, 2013 SCC OnLine Bom 1753] the order of conviction by substituting its view. This Court set aside the High Court's order holding that the High Court exceeded its jurisdiction in substituting its views, and that too without any legal basis.

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This position was reiterated in Bir Singh v. Mukesh Kumar , (2019) 4 SCC 197: (2019) 2 SCC (Cri) 40: (2019) 2 SCC (Civ) 309: 2019 SCC OnLine SC 13, wherein it was observed at page 205:

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“16. It is well settled that in the exercise of revisional jurisdiction under Section 482 of the Criminal Procedure Code, the High Court does not, in the absence of perversity, upset concurrent factual findings. It is not for the Revisional Court to re-analyse and re-interpret the evidence on record.

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As held by this Court in Southern Sales & Services v. Sauermilch Design and Handels GmbH [Southern Sales & Services v. Sauermilch Design and Handels GmbH, (2008) 14 SCC 457], it is a well-established principle of law that the Revisional Court will not interfere even if a wrong order is passed by a court having jurisdiction, in the absence of a jurisdictional error. The answer to the first question is, therefore, in the negative.”

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The present revision has to be decided as per the parameters laid down by the Hon’ble Supreme Court.

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It was asserted in Para No.3 of the complaint that the accused was well known to the complainant and she purchased food grains/ Karayna articles from the complainant from time to time, amounting to ₹1,45,098/- and issued a cheque to discharge her legal liability. A similar averment was made in Para No.3 of the proof affidavit (Ex-CW1/A). Therefore, it is apparent that, as per the complainant, the food grains/ Karyana articles were purchased by the accused, and the cheque was issued by her regarding the payment of the food grains/ Karyana articles purchased by her. However, this version was changed in the Court. Gurpreet Singh (CW1) stated in his cross-examination that Rakesh Kumar used to take food grains / Karyana articles from him. He admitted that the bills were issued in the name of Rakesh Kumar. Hence, it is apparent that the initial version projected by the complainant in the complaint and the statement on oath that food grains/ Karyana articles were purchased by the accused and the accused had issued the cheque towards the payment of the food grains/ Karyana articles was not proved before the Court.

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It was laid down by Hon’ble Supreme Court in Dattatraya v. Sharanappa , (2024) 8 SCC 573: (2024) 3 SCC (Cri) 776: 2024 SCC OnLine SC 1899 that when the complainant was unable to put forth the details of the loan and made contradictory statements, the presumption attached to the cheque will not help him. It was observed:

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Admittedly, the appellant was able to establish that the signature on the cheque in question was of the respondent and in regard to the decision of this Court in Bir Singh [Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197 : (2019) 2 SCC (Civ) 309 : (2019) 2 SCC (Cri) 40] , a presumption is to ideally arise. However, in the above-referred context of the factual matrix, the inability of the appellant to put forth the details of the loan advanced, and his contradictory statements, the ratio therein would not impact the present case to the effect of giving rise to the statutory presumption under Section 139 of the NI Act, 1881. The respondent has been able to shift the weight of the scales of justice in his favour through the preponderance of probabilities.

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The trial court had rightly observed that the appellant was not able to plead even a valid existence of a legally recoverable debt, as the very issuance of a cheque is dubious based on the fallacies and contradictions in the evidence adduced by the parties. Furthermore, the fact that the respondent had inscribed his signature on the agreement drawn on white paper and not on stamp paper, as presented by the appellant, creates another set of doubts in the case. Since the accused has been able to cast a shadow of doubt on the case presented by the appellant, he has therefore successfully rebutted the presumption stipulated by Section 139 of the NI Act, 1881.

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In the present case also the complainant has changed the initial version that the cheque was issued to discharge the liability of the accused to a version that a cheque was issued to discharge the legal liability of the husband of the accused which made her case highly doubtful and the recourse could not have been taken to the presumption attached to the cheque.

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It was submitted that the cheque can be issued to discharge the liability of another person, and merely because the food grains/ Karyana articles were purchased by the husband of the accused is not sufficient. There can be no dispute with the proposition of law that the cheque can be issued to discharge the liability of another person. However, the complainant has to come up with the plea that the cheque was issued to discharge the liability of a 3^rd person. The complainant cannot make out such a case during the arguments, as it would take the accused by surprise and is impermissible. The Courts have to find out the case projected before them, and it is impermissible to make out a new case in favour of either party. Therefore, this submission will not assist the complainant.

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Both the learned Courts below proceeded on the basis of the presumption and failed to notice the variation in the case pleaded by the complainant and proved before the Court, which made the whole case suspect. Therefore, the judgments and order passed by the learned Courts below cannot be sustained.

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In view of the above, the present revision is allowed, and judgments and orders passed by the learned Courts below are ordered to be set aside. The accused is acquitted for the commission of an offence punishable under Section 138 of the NI Act. The fine amount, if deposited be refunded to the accused, if no appeal is preferred, in case of appeal, the same be dealt with in the order of the Hon’ble Supreme Court.

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In view of the provisions of Section 437-A of the Code of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha Sanhita, 2023) the petitioner/accused is directed to furnish bail bonds in the sum of ₹50,000/- with one surety of the like amount to the satisfaction of the learned Trial Court which shall be effective for six months with a stipulation that in an event of a Special Leave Petition being filed against this judgment or on grant of the leave, the petitioner/accused on

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receipt of notice thereof shall appear before the Hon'ble Supreme Court.

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