Dismissed

Pramod Choudhary v. State of Jharkhand and Anr.

Jharkhand HC12 Apr 2019Cr.Rev./535/2013

Case brief

AI extract

What is this about?

In a criminal revision petition challenging an appellate order that upheld a conviction and enhanced compensation in a cheque bounce case, the High Court upheld the impugned order. The court observed that the statutory presumption of debt stood unrebuted and that no glaring injustice or violation of fundamental legal principles was demonstrated to justify revisional interference.

What did the court decide?

The petition was disposed of as dismissed; no modification of the maintenance order below was granted.

Pramod Choudhary Vs State of Jharkhand and Anr. — Cheque Dishonour | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 535 of 2013

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Pramod Choudhary, S/o Late Yadu Chaudhary, Resident of Opposite Kavristan, Ratu Road, P.O.- Hehal, P.S.-Sukhdeonagar, District-Ranchi, Jharkhand ..... Petitioner

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Versus

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The State of Jharkhand

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Jitendra Prasad Saha, son of Radhe Prasad Saha, Resident of Dayal Nagar, Piska More, P.O.- Hehal, P.S.- Sukhdeonagar, District-Ranchi, Jharkhand. ...... Opposite Parties

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CORAM : HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Petitioner : Mr. Abhijeet Kumar Singh, Advocate For the O.P. No.2 : Mr. Mitul Kumar, Advocate

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Order No. 11: Dated 12^th April, 2019

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The instant application is directed against the judgment and order dated 15.04.2013, passed by the learned Additional Sessions Judge- XII Ranchi, in Criminal Appeal No. 220 of 2012, whereby the learned Appellate Court confirmed the order of conviction, however, modified the order of sentence dated 09.08.2012 passed by the learned Judicial Magistrate 1^st Class Ranchi to the extent that appellant was directed to pay compensation amount of Rs.2,00,000/- to the complainant within thirty days from the date of order.

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It has been stated by the Opposite Party No.2 before the learned Trial Court that complainant and accused person were friends, and the accused on 20.12.2009 requested the complainant for a friendly loan of Rs.1,40,000/- for extension of his business, and admittedly an agreement was executed between them on 25.12.2009. The further case of the complainant was that, for the said loan the accused issued two cheques dated 13.4.2010 for Rs.70,000/- each drawn at Bank of Baroda, Ratu Road, Ranchi. It has been further stated by the complainant that when the cheque was presented, it bounced back for insufficient fund. A legal notice dated 29.04.2010 was sent through registered post, but the same fetched no result. Thereafter, the complaint case was filed by the opposite party no.2 herein 31.5.2010.

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Mr. Abhijeet Kumar Singh, learned counsel for the petitioner argued that the impugned order has been passed in most mechanical manner without considering the material on record and as such, the same

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is bad-in-law. He further argued that the contradiction of the evidence on record has not been taken into account and the learned courts below failed to take into consideration the specific plea that the income tax return as stated by the complainant has not been exhibited and further the cheque was not issued for any debt.

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Mr. Mitul Kumar, learned counsel appears for the opposite party no.2 argued that there is no error in the impugned order and the learned Sessions Court has rightly appreciated the evidence in passing the impugned order.

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It is a settled-law that the presumption of debt will be against the accused and burden lies on the accused to prove that the said cheques were not issued for debt or liability. Section 139 of the Negotiable Instrument Act makes it more stringent as the court has to presume unless the contrary was proved, that the holder of the cheque received the cheque for discharge, in whole or in part, of a debt or a liability. This presumption under Section 138 is rebuttable, however, the burden of proving that a cheque had not been issued for a debt or liability is on the accused. In the instant case, the accused failed to prove that the cheque was not issued for any debt or liability.

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The judgment rendered by the Hon’ble the Apex Court in the case of Hiten P. Dala Vs. Bratindranath Banerjee, reported in (2001) 6 SCC 16 . Relevant paragraph nos. 22 and 23 reads as under:-

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22. Because both Sections 138 and 139 require that the court “shall presume” the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in State of Madras v. A. Vaidyanatha Iyer it is obligatory on the court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. “It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused.” (Ibid. at p. 65, para 14.) Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court “may presume” a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the

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reasonable possibility of the non-existence of the presumed fact.

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23. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when,

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“after considering the matters before it,

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the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists”.

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Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the “prudent man”.

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Perusal the records of the case including the impugned order. I find that the cheque has been presented within time in the bank. The bank returned the cheque memo by its memo dated 20.4.2010. The legal notice was sent on 29.04.2010. After non-payment of the debt this complaint has been brought on 31.05.2010. Thus, the complainant has adhered to the statutory requirements to fulfil the ingredient for attracting an offence u/s 138 of the N.I. Act against the accused.

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I have considered the order of sentence passed by the learned Judicial Magistrate who has sentenced the accused for S.I of six months along with compensation of Rs.1,50,000/-. The learned Appellate Court has confirmed the order of conviction but modified the sentence and directed the petitioner to pay a compensation of Rs.2,00,000/- u/s 357 (3) Cr.P.C to the complainant within 30 days from the order instead of Rs.1,50,000/- and six months S.I as directed by the learned Judicial Magistrate. The learned Appellate Court has further sentenced a fine of Rs.5,000/- and in default S.I of one month.

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It is true that an offence under N.I. Act cannot be equated with an offence under the provision of Indian Penal Code or any other criminal offence. It has been stated that an offence u/s 138 of the N.I. Act is almost in a nature of a civil wrong which has been given overtones, wisdom of awarding compensation is sufficient to meet the ends of justice. The

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learned appellate court has rightly modified the sentence and based its judgment as per the ratio decided in the case of Kaushalya Devi Massand Vs. Roop Kishore, reported in 2011 AIR SCW 2283.

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Further, the revisional jurisdiction of the High Court while dealing with an order passed by the trial Court is more narrow in its scope. It is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial Court, that the High Court is empowered to set aside the order. From the very nature of this power it should be exercised sparingly and with great care ‘and caution.

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The Judgment rendered by the Hon’ble Apex Court in the case of Bansi Lal and others Vs. Laxman Singh, reported in AIR 1986 Supreme Court 1721 . Relevant paragraph nos. 9 and 10 are quoted hereinbelow for ready reference:-

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9 . Even in an appeal against an order of acquittal no interference will be made with the judgment of the trial Court except in rare and exceptional cases where there has been some manifest illegality in the approach to the case or the appreciation of the evidence or where the conclusion of fact recorded by the Trial Judge is wholly unreasonable so as to be liable to be characterised as perverse and there has been a resultant miscarriage of justice. The revisional jurisdiction of the High Court while dealing with an order of acquittal passed by the trial Court is more narrow in its scope. It is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial Court, that the High Court is empowered to set aside the order of the acquittal and direct a retrial of the acquitted accused. From the very nature of this power it should be exercised sparingly and with great care 'and caution. In K. C. Reddy v. State of Andhra Pradesh, (1963) 3 SCR 412 : (AIR 1962 SC 1788), this Court had occasion to consider the scope of the revisional jurisdiction conferred on the High Court in relation to orders of acquittal passed by the trial Court and after referring to two earlier decisions of this Court reported in D. Stephens v. Nosibolla, 1951 SCR 284 : (AIR 1951 SC 196) and Jogendranath Jha v. Polailal Biswas, 1951 SCR 676: (AIR 1951 SC 316), the legal position was explained thus :

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"These two cases clearly lay down the limits of the High Court's jurisdiction to interfere with an order of acquittal in revision; in particular, Jogendranath Jha's case stresses that it is not open to a High Court to convert a finding of acquittal into one of conviction in view of the provisions of S. 439(4) and that the High Court cannot do this even indirectly by ordering re-trial. What had happened in that case was that the High Court reversed pure findings of facts based on the trial Court's appreciation of evidence but formally complied with sub-s. (4) by directing only a re-trial of the appellants without convicting them, and warned that the Court retrying the case should not be influenced by any expression of opinion contained in the judgment of the High Court. In that connection this Court

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observed that there could be little doubt that the dice was loaded against the appellants of that case and it might prove difficult for any subordinate judicial officer dealing with the case to put aside altogether the strong views expressed in the judgment as to the credibility of the prosecution witness and the circumstances of the case in general."

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This decision was subsequently followed by this Court in Akalu Ahir v. Ramdeo Ram, (1974) 1 SCR 130: (AIR 1973 SC 2145), where this Court observed :-

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"The unrestricted right of appeal from acquittal is specifically conferred only on the State and a private complainant is given this right only when the criminal prosecution was instituted on his complaint and then also subject to special leave by the High Court. It is further provided in S. 439(5), Cr.P.C. that where no appeal is brought in a case in which an appeal is provided, no proceedings by way of revision would be entertained at the instance of the party who could have appealed. The State Government, therefore, having failed to appeal, cannot apply for revision of an order of acquittal. Again on revision, the High Court is expressly prohibited from converting an acquittal into a conviction. Considering the problem facing the Court in this case in the background of this scheme, the High Court when approached by a private party for exercising its power of revision from an order of acquittal, should appropriately refrain from interfering except when there is a glaring legal defect of a serious nature which has resulted in grave failure of justice. It is not expected to act under Ss. 435/439, Cr. P.C. as if it is a hearing on appeal in spite of the wide language under S. 435 which empowers it to satisfy itself as to the correctness, legality or propriety of a finding, sentence or order and as to the regularity of any proceeding and also in spite of the fact that under S. 439 it can exercise inter alia the power conferred on a Court of appeal under S. 423, Cr. P.C. The power being discretionary, it has to be exercised judiciously, and not arbitrarily. Judicial discretion, as has often been said, means a discretion which is informed by tradition, methodised by analogy and disciplined by system. In Amar Chand Aggarwal v. Shanti Bose, AIR 1973 SC 799, this Court said that normally the jurisdiction of the High Court under S. 439, Cr. P.C is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on point of law and there has consequently been flagrant miscarriage of justice. In the background of the position just stated a private complainant can only claim a right, in common with all aggrieved parties in a criminal proceedings, to invoke the revisional jurisdiction of the High Court for redress against miscarriage of justice arising from an erroneous order of acquittal."

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The same position has been reiterated by this Court in Satyendra Nath Dutta v. Rain Narain, (1975) 2 SCR 743: (AIR 1975 SC 580).

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10 . It is unfortunate that the High Court did not keep in mind and principles laid down in the aforesaid rulings regarding the limits of its revisional powers while dealing with an order of acquittal passed by the subordinate Court. The mere circumstance that a finding of fact recorded by the trial Court may in the opinion of the High Court be wrong, will not justify

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the setting aside (of) the order of acquittal and directing a retrial of the accused. In the present case the judgment of the learned Additional Sessions Judge did not suffer from any manifest illegality. The dominant justification of the order of acquittal recorded by the trial Court is the view it took of the evidence of the two eye-witnesses. Having carefully gone through the records of the case we are satisfied that it was a possible view and it cannot be characterised as illegal or perverse. It may well be that the learned single Judge of the High Court was not inclined to agree with the said view on the basis of his independent scrutiny and appreciation of the evidence adduced in the case but that would not furnish any justification for interference in revision with the order of acquittal passed by the learned Additional Sessions Judge. Even in an appeal the Appellate Court would not have been justified in interfering with an acquittal merely because it was inclined to differ from the findings of fact reached by the trial Court on the appreciation of the evidence. The revisional power of the High Court is much more restricted in its scope. We accordingly hold that the High Court has clearly transgressed the limits of its revisional. jurisdiction under S. 439(4) of (old) Cr. P.C. in setting aside the order of acquittal passed by the Additional Sessions Judge and directing a retrial of the case.

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Even though, in the aforesaid judgments, the Hon’ble Apex Court was dealing with High Court’s jurisdiction to interfere with an order of acquittal in revision, but in my view the guiding principle laid down by the Apex Court in the above judgments equally applies to other cases before the High Court sitting under revisional jurisdiction.

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In the instant case the petitioner has failed to establish any glaring injustice resulting from violation of fundamental principle of law.

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In view of the aforesaid discussions and judicial pronouncements, the petitioner has failed to make out any case for interference with the orders of the learned courts below and the instant application, being devoid of merit, is thus dismissed.

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(Deepak Roshan, J.)

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Raja /

Pramod Choudhary v. State of Jharkhand and Anr.

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Pramod Choudhary v. State of Jharkhand and Anr.

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