Himachal Pradesh High Court
Rakesh Sharma vs Puneet Gautam on 28 May, 2025
( 2025:HHC:16375 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MMO No. 792 of 2022
Reserved on: 25.04.2025
Date of Decision: 28.05.2025.
Rakesh Sharma ...Petitioner
Versus
Puneet Gautam ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes.
For the Petitioner : Mr. Pavinder, Advocate.
For the Respondent : Mr. Pranshul Sharma, Advocate.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for
modification of judgment and sentence passed by the learned
Judicial Magistrate, First Class, Court No.1, Solan (H.P) (learned
Trial Court), in a case bearing No.711/3 of 2011/10, titled Rakesh
Sharma Vs. Puneet Gautam, dated 22.03.2021, as modified by
learned Sessions Judge, Solan (learned Revisional Court) in a
Criminal Revision No.7-S/10 of 2021 decided on 12.04.2022.
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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(Parties shall hereinafter be referred to in the same manner as they
were arrayed before the learned Trial Court for convenience.)
2. Briefly stated, the facts giving rise to the present
petition are that the complainant filed a complaint against the
accused before the learned Trial Court for the commission of an
offence punishable under Section 138 of the Negotiable
Instruments Act ("in short N.I. Act"). The learned Trial Court
convicted the accused vide judgment dated 22.03.2021 and
sentenced him to undergo simple imprisonment for three
months and pay a compensation of ₹5,50,000/- to the
complainant.
3. Being aggrieved by the judgment and order passed
by the learned Trial Court, the accused filed an appeal, and the
complainant filed a revision which were decided by the learned
Sessions Judge, Solan (H.P). Learned Sessions Judge, Solan
upheld the judgment and order passed by the learned Trial
Court convicting the accused and sentencing him to undergo
simple imprisonment for three months. Learned Sessions
Judge also partly allowed the revision and enhanced the
compensation to ₹6,50,000/-.
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4. Being aggrieved by the judgment passed by the
learned Revisional Court, the complainant has filed the present
petition, asserting that the amount was paid on 25.06.2010. The
accused did not challenge the judgment of conviction, which
has attained finality. Learned Revisional Court noticed that 10
years had elapsed in the conclusion of the trial, and the
complainant would have obtained ₹2,00,000/- as interest on
the cheque, therefore, the compensation was enhanced to
₹6,50,000/-. Learned Revisional Court should have awarded at
least ₹2,00,000/- as compensation. The N.I. Act provides for
punishment as well as compensation. The learned Courts below
did not award proper compensation, and at least interest @ 9%
per annum should have been awarded. Hence, the present
petition.
5. I have heard Mr. Pavinder, learned counsel for the
petitioner and Mr. Pranshul Sharma, learned counsel for the
respondent.
6. Mr. Pavinder, learned counsel for the petitioner,
submitted that the learned Courts below have awarded
inadequate compensation, which should be enhanced. He relied
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upon the judgments of the Hon'ble Supreme Court in Krishnan
& Anr. Vs. Krishnaveni & Anr. AIR 1997 Supreme Court 987,
Rajinder Prasad Vs. Bashir & Ors. AIR 2001 Supreme Court 3524 &
Yasir Amin Khan Vs. Abdul Rashid Ganie, in CRM(M) 21/2020,
decided on 22.11.2021, in support of his submission.
7. Mr. Pranshul Sharma, learned counsel, for the
respondent, submitted that the power under Section 482 of
Cr.PC is extraordinary and cannot be exercised to enhance the
sentence. The remedy of the petitioner is to file a civil suit for
the recovery of the amount. Therefore, he prayed that the
present petition be dismissed.
8. I have given considerable thought to the
submissions made at the bar and have gone through the
records carefully.
9. It was laid down by the Hon'ble Supreme Court in
Krishnan Vs. In Krishnaveni (1997) 4 SCC 241, that the High Court
can intervene under Section 482 of CrPC (corresponding to
Section 528 of BNSS) when there is a grave miscarriage of
justice or abuse of the process of the Court. It was observed:
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"10. Ordinarily, when revision has been barred by
Section 397(3) of the Code, a person --
accused/complainant -- cannot be allowed to take
recourse to the revision to the High Court under Section
397(1) or inherent powers of the High Court under
Section 482 of the Code since it may amount to
circumvention of the provisions of Section 397(3) or
Section 397(2) of the Code. It is seen that the High Court
has suo motu power under Section 401 and continuous
supervisory jurisdiction under Section 483 of the Code.
So, when the High Court on examination of the record
finds that there is a grave miscarriage of justice or abuse
of the process of the courts or the required statutory
procedure has not been complied with or there is failure
of justice or order passed or sentence imposed by the
Magistrate requires correction, it is but the duty of the
High Court to have it corrected at the inception lest
grave miscarriage of justice would ensue. It is, therefore,
to meet the ends of justice or to prevent abuse of the
process that the High Court is preserved with inherent
power and would be justified, under such circumstances,
to exercise the inherent power and in an appropriate
case even revisional power under Section 397(1) read
with Section 401 of the Code. As stated earlier, it may be
exercised sparingly to avoid needless multiplicity of
procedure, unnecessary delay in trial and protraction of
proceedings. The object of a criminal trial is to render
public justice, to punish the criminal and to see that the
trial is concluded expeditiously before the memory of
the witness fades out. The recent trend is to delay the
trial and threaten the witness or to win over the witness
by promise or inducement. These malpractices need to
be curbed, and public justice can be ensured only when
the trial is conducted expeditiously.
11. In Madhu Limaye v. State of Maharashtra [(1977) 4 SCC
551: 1978 SCC (Cri) 10], a three-judge Bench was to
consider the scope of the power of the High Court under
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Section 482 and Section 397(2) of the Code. This Court
held that the bar on the power of revision was put to
facilitate expedient disposal of the cases, but in Section
482, it is provided that nothing in the Code, which would
include Section 397(2) also, shall be deemed to limit or
affect the inherent powers of the High Court. On a
harmonious construction of the said two provisions on
this behalf, it was held that though the High Court has
no power of revision in an interlocutory order, still the
inherent power will come into play when there is no
provision for redressal of the grievance of the aggrieved
party. In that case, when allegations of defamatory
statements were published in the newspapers against
the Law Minister, the State Government decided to
prosecute the appellant for an offence under Section 500
IPC. After obtaining the sanction, on a complaint made
by the public prosecutor, cognisance of the commission
of the offence by the appellant was taken to trial in the
Sessions Court. Thereafter, the appellant filed an
application to dismiss the complaint on the ground that
the court had no jurisdiction to entertain the complaint.
The Sessions Judge rejected all the contentions and
framed the charges under Section 406. The Order of the
Sessions Judge was challenged in revision in the High
Court. On a preliminary objection raised on
maintainability, this Court held that the power of the
High Court to entertain the revision was not taken away
under Section 397 or inherent power under Section 482
of the Code.
12. In V.C. Shukla v. State through CBI [1980 Supp SCC 92:
1980 SCC (Cri) 695: (1980) 2 SCR 380] (SCR at p. 393) a
four-judge Bench per majority had held that sub-
section (3) of Section 397, however, does not limit at all
the inherent powers of the High Court contained in
Section 482. It merely curbs the revisional power given
to the High Court or the Sessions Court under Section
397(1) of the Code. In the Rajan Kumar Machananda
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case [1990 Supp SCC 132: 1990 SCC (Cri) 537], the case
related to the release of a truck from attachment,
obviously on the filing of an interlocutory application. It
was contended that there was a prohibition on the
revision by operation of Section 397(2) of the Code. In
that context, it was held that it was not revisable under
Section 482 in the exercise of inherent powers by
operation of sub-section (3) of Section 397. On the facts
in that case, it was held that by provisions contained in
Section 397(3), the revision is not maintainable. In the
Dharampal case [(1993) 1 SCC 435: 1993 SCC (Cri) 333],
which related to the exercise of power to issue an order
of attachment under Section 146 of the Code, it was held
that the inherent power under Section 482 was
prohibited. On the facts, in that case, it could be said that
the learned Judges would be justified in holding that it
was not revisable since it was a prohibitory interim
order of attachment covered under Section 397(2) of the
Code but the observations of the learned Judges that the
High Court had no power under Section 482 of the Code
were not correct in view of the ratio of this Court
in Madhu Limaye case [(1977) 4 SCC 551: 1978 SCC (Cri) 10]
as upheld in V.C. Shukla case [1980 Supp SCC 92: 1980 SCC
(Cri) 695 : (1980) 2 SCR 380] and also in view of our
observations stated earlier. The ratio in the Deepti
case [(1995) 5 SCC 751: 1995 SCC (Cri) 1020] is also not
apposite to the facts in the present case. To the contrary,
in that case, an application for discharge of the accused
was filed in the Court of the Magistrate for an offence
under Section 498-A IPC. The learned Magistrate and
the Sessions Judge dismissed the petition. In the revision
at the instance of the accused, on a wrong concession
made by the counsel appearing for the State that the
record did not contain allegations constituting the
offence under Section 498-A, the High Court, without
applying its mind, had discharged the accused. On
appeal, this Court, after going through the record, noted
that the concession made by the counsel was wrong. The
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record did contain the allegations to prove the charge
under Section 498-A IPC. The High Court, since it failed
to apply its mind, had committed an error of law in
discharging the accused, leading to the miscarriage of
justice. In that context, this Court held that the order of
the Sessions Judge operated as a bar to entertain the
application under Section 482 of the Code. In view of the
fact that the order of the High Court had led to the
miscarriage of justice, this Court had set aside the order
of the High Court and confirmed that of the Magistrate.
13. The ratio of the Simrikhia case [(1990) 2 SCC 437: 1990
SCC (Cri) 327] has no application to the facts in this case.
Therein, on a private complaint filed under Sections 452
and 323 IPC, the Judicial Magistrate, First Class had
taken cognisance of the offence. He transferred the case
for inquiry under Section 202 of the Code to the Second-
Class Magistrate, who, after examining the witnesses,
issued a process to the accused. The High Court,
exercising the power under Section 482, dismissed the
revision. But subsequently, on an application filed under
Section 482 of the Code, the High Court corrected it. The
question was whether the High Court was right in
reviewing its order. In that factual backdrop, this Court
held that the High Court could not exercise inherent
power for the second time. The ratio therein, as stated
above, has no application to the facts in this case.
14. In view of the above discussion, we hold that though
the revision before the High Court under sub-section (1)
of Section 397 is prohibited by sub-section (3) thereof,
inherent power of the High Court is still available under
Section 482 of the Code and as it is paramount power of
continuous superintendence of the High Court under
Section 483, the High Court is justified in interfering
with the order leading to miscarriage of justice and in
setting aside the order of the courts below. It remitted
the case to the Magistrate for a decision on the merits
after consideration of the evidence. We make it clear that
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we have not gone into the merits of the case. Since the
High Court has left the matter to be considered by the
Magistrate, it would be inappropriate at this stage to go
into that question. We have only considered the issue of
power and jurisdiction of the High Court in the context
of the revisional power under Section 397(1) read with
Section 397(3) and the inherent powers. We do not find
any justification warranting interference in the appeal."
10. This position was reiterated in Rajinder
Prasad v. Bashir, (2001) 8 SCC 522, wherein it was held:
"...though the power of the High Court under Section
482 of the Code is very wide, the same must be exercised
sparingly and cautiously, particularly in a case where the
petitioner is shown to have already invoked the
revisional jurisdiction under Section 397 of the Code.
Only in cases where the High Court finds that there has
been failure of justice or misuse of judicial mechanism
or procedure, sentence or order was not correct, the
High Court may, in its discretion, prevent the abuse of
the process or miscarriage of justice by exercise of
jurisdiction under Section 482 of the Code. It was further
held, "Ordinarily, when revision has been barred by
Section 397(3) of the Code, a person -
accused/complainant - cannot be allowed to take
recourse to the revision to the High Court under Section
397(1) or inherent powers of the High Court under
Section 482 of the Code since it may amount to
circumvention of provisions of Section 397(3) or Section
397(2) of the Code."
11. A similar view was taken in Kailash Verma v. Punjab
State Civil Supplies Corporation, (2005) 2 SCC 571, and it was
held:
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"5. It may also be noticed that this Court in Rajathi v. C.
Ganesan [(1999) 6 SCC 326: 1999 SCC (Cri) 1118] said that
the power under Section 482 of the Criminal Procedure
Code has to be exercised sparingly and such power shall
not be utilised as a substitute for second revision.
Ordinarily, when a revision has been barred under
Section 397(3) of the Code, the complainant or the
accused cannot be allowed to take recourse to revision
before the High Court under Section 397(1) of
the Criminal Procedure Code, as it is prohibited under
Section 397(3) thereof. However, the High Court can
entertain a petition under Section 482 of the Criminal
Procedure Code when there is a serious miscarriage of
justice and abuse of the process of the court or when
mandatory provisions of the law are not complied with
and when the High Court feels that the inherent
jurisdiction is to be exercised to correct the mistake
committed by the revisional court."
12. This position was reiterated in Shakuntala Devi v.
Chamru Mahto, (2009) 3 SCC 310: (2009) 2 SCC (Cri) 8: 2009 SCC
OnLine SC 292, wherein it was observed: -
"24. It is well settled that the object of the introduction
of sub-section (3) in Section 397 was to prevent a second
revision to avoid frivolous litigation, but, at the same
time, the doors to the High Court to a litigant who had
lost before the Sessions Judge were not completely
closed and in special cases, the bar under Section 397(3)
could be lifted. In other words, the power of the High
Court to entertain a petition under Section 482 was not
subject to the prohibition under sub-section (3) of
Section 397 of the Code and was capable of being
invoked in appropriate cases. Mr Sanyal's contention
that there was a complete bar under Section 397(3) of
the Code debarring the High Court from entertaining an
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application under Section 482 thereof does not,
therefore, commend itself to us.
25. On the factual aspect, the Magistrate came to a
finding that the appellants were entitled to possession of
the disputed plot. It is true that while making such a
declaration under Section 145(4) of the Code, the
Magistrate could have also directed that the appellants
be put in possession of the same.
26. The question which is now required to be considered
is whether the High Court was right in quashing the
order passed by the Magistrate, which was confirmed by
the Sessions Judge, on the ground that the application
made by the appellants under Section 145(6) of the Code
was barred firstly by limitation under Article 137 of the
Limitation Act and also by virtue of Section 6 of the
Specific Relief Act, 1963.
13. Delhi High Court also took a similar view in Surender
Kumar Jain v. State, ILR (2012) 3 Del 99 and held: --
"5. The issue regarding the filing of a petition before the
High Court after having availed the first revision
petition before the Court of Sessions has come up before
the Supreme Court and this Court repeatedly. While
laying that section 397(3) Cr. P.C. laid the statutory bar
of the second revision petition, the courts have held that
the High Court did enjoy inherent power under
section 82 (sic) Cr. P.C. as well to entertain petitions
even in those cases. But that power was to be exercised
sparingly and with great caution, particularly when the
person approaching the High Court has already availed
remedy of first revision in the Sessions Court. This was
not that in every case the person aggrieved by the order
of the first revision court would have the right to be
heard by the High Court to assail the same order which
was the subject matter of the revision before the
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Sessions Court. It all depends not only on the facts and
circumstances of each case but as on whether the
impugned order brought about a situation that is an
abuse of the process of the court, there was a serious
miscarriage of justice or the mandatory provisions of
law were not complied with. The power could also be
exercised by this Court if there was an apparent mistake
committed by the revisional court. Reference in this
regard can be made to the judgments of the Supreme
Court in Madhu Limave v. State of Maharashtra (1977) 4
SCC 551, State of Orissa v. Ram Chander Aggarwal, (1979) 2
SCC 305: AIR 1979 SC 87, Rai Kapoor v. State (Delhi
Administration) 1980 Cri LJ 202,
Krishnan v. Krishnaveni and Kailash Verma v. Punjab State
Civil Supplies Corporation (2005) 2 SCC 571."
14. It is apparent from the judgments that the High
Court has a limited jurisdiction and it can rectify a serious
miscarriage of justice or non-compliance with a mandatory
provision of law while exercising its jurisdiction under Section
482 of the Cr. P.C.
15. A heavy reliance was placed upon the judgment of
Rajinder Prasad (supra), wherein it was held that the High Court
can interfere if there is a failure of justice, misuse of judicial
mechanism or procedure, or the sentence or order was not
correct. In the present case, the learned Courts below had the
jurisdiction to impose the sentence of imprisonment and award
the compensation; if the compensation was inadequate, the
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same would not fall within the definition of incorrect sentence.
It was a discretion vested in the learned Courts below, and if the
same was exercised, the Court will not interfere with it while
exercising jurisdiction under Section 482 of Cr.PC. The Court
can interfere with the exercise of jurisdiction if it is arbitrary or
capricious. In the present case, the awarding of less
compensation cannot be held to be arbitrary or capricious by
any stretch of imagination. Therefore, the power under Section
482 of the Cr.PC cannot be exercised to enhance the
compensation.
16. The legislature in its wisdom has provided one
remedy of revision that cannot be circumvented by taking
recourse to Section 482 of the Cr.PC to interfere with every
order passed by the learned Revisional Court. This would set at
nought the legislature's intention that only one revision can be
filed by a person. The jurisdiction under Section 482 of Cr.PC is
extraordinary and cannot be exercised as a second revisional
jurisdiction. Therefore, it is not possible to enhance the amount
of compensation while exercising inherent jurisdiction2.
Shailendra vs Ajay 2024: MPHC-IND:29875
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17. It was submitted that the learned Revisional Court
held that the complainant would have earned ₹2,00,000/- as
interest within ten years and still awarded ₹1,00,000/- as
compensation. Learned Revisional Court held that the equities
of both sides were to be adjusted and therefore, only a
compensation of ₹1,00,000/- was awarded. This cannot be an
arbitrary exercise of power because the Court has to balance the
interests of both parties. If the complainant suffers the loss of
interest, the accused also faces the agony of trial. The accused
is also sentenced to imprisonment. If the learned Revisional
Court considered these factors while imposing the sentence,
the exercise is not arbitrary but guided by the principles, and
this Court will not be justified in interfering with the discretion
while exercising jurisdiction under Section 482 of Cr.PC. The
Jammu & Kashmir High Court did not notice the self-imposed
limitations on the exercise of jurisdiction under Section 482 of
the Cr.PC in Yasir Amin Khan (supra) and was swayed by the fact
that a compensation of ₹2,00,000/- was awarded when the
cheque amount was ₹10,00,000/-. Therefore, with the utmost
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humility, it is not possible to follow the judgment of the Jammu
& Kashmir High Court.
18. No other point was urged.
19. In view of the above, there is no reason to interfere
with the judgment passed by the learned Revisional Court,
hence, the present petition fails, and the same stands
dismissed.
20. The observations made herein before shall remain
confined to the disposal of the petition and will have no
bearing, whatsoever, on the merits of the case.
(Rakesh Kainthla)
28 May 2025
th
Judge
(Shamsh Tabrez)
