Mahendra Singh vs State Of U.P. And Another
2022 Latest Caselaw 15422 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgment reserved on 22.09.2022
 
Judgment delivered on 01.11.2022
 
Court No. - 84
 

 
Case :- CRIMINAL REVISION No. - 1166 of 2022
 

 
Revisionist :- Mahendra Singh
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Shyam Shankar Shukla,Devendra Tiwari Deva,Jai Shanker Audichya,Ram Kishun Misra,Sharad Srivastava
 
Counsel for Opposite Party :- G.A.,Vivek Kumar Mishra (In Person)
 
Hon'ble Saurabh Shyam Shamshery,J.

1. This is a revision petition filed by a convicted revisionist against the concurrent findings on facts as well as on law given by learned trial Court as well as upheld by the Appellate Court whereby the order of conviction for committing offence under Section 138 of Negotiable Instruments Act, 1881 as well as simple imprisonment of six months with a fine of Rs. 5 lakhs was imposed and was upheld respectively.

2. The revisionist is represented by Sri Shyam Shankar Shukla, Advocate who has argued vehemently before this Court as well as Sri Ram Kishun Mishra, Advocate has filed written argument.

3. Learned counsel for revisionist submitted that initially cognizance was taken by the Judicial Magistrate, Court No.2, Allahabad on 09.10.2014, however, in compliance of direction passed by a three Judges Bench of Supreme Court in the case of Dashrath Rupsingh Rathod vs. State of Maharashtra and another, (2014) 9 SCC 129, the complaint was returned to complainant by an order dated 27.04.2015 with a direction that same shall be filed before competent Court and accordingly it was filed before the competent Court which was registered as a complaint case by an order dated 18.05.2015 and summons were issued on the new address.

4. Learned counsel submitted that since the complaint was filed as fresh, therefore, the competent Court ought to have taken a fresh cognizance in accordance with provisions prescribed under Sections 202, 203, 204 Cr.P.C. However, the same was not followed, therefore, it was an irregularity which affected initiation of complaint case and therefore subsequent proceedings may become void ab initio.

5. Sri V.K. Mishra (opposite party No.2 appearing in person) submitted that there are concurrent findings on law as well as on facts against the revisionist. The above issue raised by the revisionist has already been dealt with by the Appellate Court and he read out the following passage from the order :-

"विपक्षी की तरह से बहस के दौरान यह भी स्पस्ट किया गया कि न्यायालय के आदेश दिनांक 27.04.2015 से स्पस्ट है कि परिवादी का परिवाद वापस किया गया और उसके बाद परिवाद दिनांक 18.05.15 को पुनः दाखिल किया गया. विपक्षी का यह कथन है कि दावा वापस करने के कारण आदेश दिनांक 09.10.14 समाप्त हो गया है और उस आदेश के तहत पुनः परिवाद नहीं चलाया जा सकता. विपक्षी के विद्वान अधिवक्ता का यह कथन पोषणीय नहीं है यह स्पस्ट करना आवश्यक है कि माननीय उच्च न्यायालय द्वारा पारित नजीर दशरथ रूप सिंह राठौड़ के अंतर्गत उक्त परिवाद इस उद्देश्य से वापस किया गया था उसे सक्षम अधिकारिता के न्यायलय में दाखिल किया जाये. वादी ने वही किया. परिवाद वापस लेकर दिनांक 09.10.14 को दाखिल किया जिससे आदेश पर कोई प्रतिकूल प्रभाव नहीं पड़ता."

6. The next argument on behalf of revisionist was that he has already more than fine imposed. He paid Rs. 6,00,000/- (Rs. 1,00,000/- during mediation proceedings, Rs. 2,00,000/- before Appellate Court and Rs. 3,00,000/- during the pendency of appeal). However, the said submission was partly accepted by opposite party No.2 in person that only Rs. 1,00,000/- was paid during mediation proceedings and thereafter Rs. 2,00,000/- was deposited in the Appellate Court which has still not been disbursed to the opposite party No.2 and he vehemently denied the payment of Rs. 3,00,000/- allegedly paid during the pendency of appeal and he pointed out that an application in this regard was admittedly rejected by the Appellate Court vide order dated 11.11.2021.

7. The last argument of revisionist was that notice sent by the complainant was never served upon revisionist and no document was produced by the complainant in support of his allegations that Rs. 3,50,000/- was handed over to the revisionist and since bainama were not executed, cheques were given which got dishonoured.

8. The opposite party No.2 in person has opposed the above submissions and placed reliance upon the finding of learned trial Court as well as Appellate Court that the revisionist in his evidence as DW-1 has accepted that said amount was paid towards execution of two Bainamas and later on no sale deed was executed. The fact of handing over the cheque towards legally enforceable debt and its dishonour were not disputed.

9. Heard learned counsel for revisionist and opposite party No.2 in person, perused the record and the written submissions.

10. In order to consider first argument of learned counsel for revisionist, it would be opt to refer the operative portion of Dashrath Rupsingh Rathod (supra) for purpose of deciding the present Revision which is mentioned hereinafter :-

"Consequent on considerable consideration we think it expedient to direct that only those cases where, post the summoning and appearance of the alleged accused, the recording of evidence has commenced as envisaged in Section 145(2) of the Negotiable Instruments Act, 1881, will proceeding continue at that place. To clarify, regardless of whether evidence has been led before the Magistrate at the pre-summoning stage, either by affidavit or by oral statement, the complaint will be maintainable only at the place where the cheque stands dishonoured. To obviate and eradicate any legal complications, the category of complaint cases where proceedings have gone to the stage of Section 145(2) or beyond shall be deemed to have been transferred by us from the court ordinarily possessing territorial jurisdiction, as now clarified, to the court where it is presently pending. All other complaints (obviously including those where the respondent-accused has not been properly served) shall be returned to the complainant for filing in the proper court, in consonance with our exposition of the law. If such complaints are filed/refiled within thirty days of their return, they shall be deemed to have been filed within the time prescribed by law, unless the initial or prior filing was itself time-barred."

11. In pursuance of said direction, the complaint was returned and filed before the competent Court in the same Judgeship. It is also not in dispute that cognizance of offence can be taken only once and it was admittedly taken by the earlier Court and later on the competent Court proceeded from that stage. It is further relevant to mention here that subsequently Negotiable Instrument Act, 1881 was amended in order to remove the basis of directions passed by the Supreme Court in Dashrath Rupsingh Rathod (supra) with retrospective effect whereby clause (2) in Section 142 of N.I. Act was inserted w.e.f. 15.06.2015. For reference the same is mentioned herein :-

"Section 142A :-

(2) Notwithstanding anything contained in sub-section (2) of section 142 or sub-section (1), where the payee or the holder in due course, as the case may be, has filed a complaint against the drawer of a cheque in the court having jurisdiction under sub-section (2) of section 142 or the case has been transferred to that court under sub-section (1) and such complaint is pending in that court, all subsequent complaints arising out of section 138 against the same drawer shall be filed before the same court irrespective of whether those cheques were delivered for collection or presented for payment within the territorial jurisdiction of that court."

12. Therefore, the outcome of above discussion is that no illegality was committed by the competent Court to proceed from the stage where complaint was returned and filed before that Court as well as today the said direction of Supreme Court has no force so far as jurisdiction is concerned.

13. The next argument in regard to dispute of payment of Rs. 3,00,000/- during the pendency of appeal to opposite party No.2/complainant as already paying and application in this regard, an application was dismissed by the Appellate Court which remained unchallenged, therefore, this Court cannot consider such submissions and there is no ground to disbelief that Rs. 3,00,000/- were not paid to complainant in addition to the payment of Rs. 1,00,000/- during mediation proceedings and Rs. 2,00,000/- deposited before the Appellate Court.

14. Before adverting to the third argument it would be apposite to refer scope instead of interference under 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 property of any finding, sentence or order". In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting the miscarriage of justice and the said revisional power cannot be clubbed with the power of Appellate Court nor it can 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 gross miscarriage of justice. (see State of Kerala vs. Puttumana Illath Jathavedan Namboodiri (1999) 2 SCC 452)

15. I have carefully perused the impugned order passed by the learned trial Court as well as the Appellate Court and I do not find any glaring error which would tantamount to gross miscarriage of justice. Both the Courts have rightly come to conclusion that admittedly there was an oral agreement to sale for which the complainant had paid Rs. 3,50,000/-, however, admittedly it was not executed by the revisionist who by different cheques returned the said amount but they got dishonoured and thereafter within the prescribed limited time, the notice was issued but when amount was not repaid, therefore, complaint was filed wherein cognizance was taken and thereafter considering the evidence, learned trial Court held the revisionist guilty and passed the sentence of simple imprisonment of six months as well as fine of Rs. 6,00,000/-. The said finding was upheld by the Appellate Court with a reasoned order.

16. Therefore, I do not find any reason to interfere with the concurrent finding on law as well as facts.

17. The revision petition stands dismissed.

18. The amount of Rs. 2,00,000/- deposited with the Appellate Court shall be released in favour of opposite party No.2 within a period of three weeks, if already not released, from today as well as the learned trial Court shall take necessary steps for appearance of revisionist to undergo the sentence, as awarded as well as in case remaining amount of fine is not paid, the revisionist has to serve default sentence.

19. Copy of this order be certified to Court concerned.

Order Date :- November 01, 2022

Nirmal Sinha

[Saurabh Shyam Shamshery, J.]