Jammu & Kashmir High Court

Shashi Mahajan Aged 64 Years vs Sudha Sharma on 12 October, 2023

                                                                        Sr. No.



        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                         ATJAMMU

CRM(M) No.759/2023
CrlM No.1466/2023
                                             Reserved on: 09.10.2023
                                              Pronounced on:12.10.2023

      Shashi Mahajan Aged 64 years
      S/O Dev Dutt Sharma,                                  .....Petitioner(s)
      R/O H. No.39-A
      Industrial Estate, Digiana, Jammu

                              Through :- Mr. Rohit Lega, Advocate
                                         Ms. Deepali Arora, Advocate.
       V/S
      Sudha Sharma,
      W/O Suraj Parkash Sharma,                            .....Respondent(s)
      R/O H. No. 241-(F-361)
      Lower Mast Garh, Jammu


                              Through :- Mr. D. S. Saini, Advocate.

CORAM: HON'BLE MR. JUSTICE M A CHOWDHARY, JUDGE

                                JUDGMENT

1. Petitioner, through the medium of this petition under Section 482 of

Criminal Procedure Code (for short 'CrPC') seeks setting aside order dated

03.05.2023 passed by the Court of learned Chief Judicial Magistrate, Jammu

(for short 'CJM') in complaint No.29 filed under Negotiable Instrument Act (for

short 'the NIA') titled Sudha Sharma v. Shashi Mahajan, whereby application

for submitting a list of witnesses and depositing of their diet expenses as

directed in terms of interim order dated 25.10.2019 was dismissed and a cost to

the tune of ₹4,000/- was imposed. The petitioner also seeks quashment of order

dated 12.07.2023 passed by the court of learned Principal Sessios Judge Jammu

(for short 'Revisional Court') in Criminal Revision No. 75/2023 titled Shashi

Mahajan V. Sudha Sharma whereby revision against the order dated 03.05.2023

passed by the learned CJM was dismissed.

2. The petitioner has pleaded that a highly motivated and baseless

complaint under Section 138 of the NIA was filed by the respondent against the

petitioner before court of learned CJM, Jammu, with respect to Cheque

No.062037 dated 14.11.2007 for an amount of ₹25.00 lakhs issued by the

petitioner which was dishonoured due to 'funds insufficient'; that the petitioner

has been contesting the petition before the trial court, inter alia, on the ground

that he had already paid the amount of Cheque to the respondent/complainant on

30.01.2008 at PNB Branch Shalamar, Jammu in presence of two persons Suraj

Parkash and Balbir Singh, where the petitioner/accused deposited the said

amount in her bank account and she has suppressed this fact in her complaint;

that both the parties adduced their evidence in support of their respective claims

and the learned Magistrate vide order dated 28.01.2011 closed the evidence of

the petitioner/accused and posted the case for arguments, however, the petitioner

feeling aggrieved challenged the order dated 28.01.2011 before the court of

learned Additional Sessions Judge, Jammu who directed the learned Magistrate

to provide two more opportunities to the petitioner/accused for leading the

evidence, failing which the learned Magistrate was given liberty to pass

appropriate orders, in accordance with law.

3. Petitioner claimed to have filed two applications before the learned

Magistrate, first moved to place on record a receipt dated 30.01.2008 and

another was filed for re-examination and cross-examination of the

respondent/complaint and in the meanwhile petitioner examined one witness on

25.03.2011.

4. It is alleged that the petitioner/accused on 06.02.2020 moved

application seeking directions to the PNB Branch Shalamar Road, Jammu to

furnish the bank statement of the account of the petitioner/accused w.e.f

30.01.2008 to 28.02.2008 and also grant time to the petitioner/accused to lead

evidence on the ground that when the order dated 25.10.2019 was passed, the

petitioner/accused could not file the list of witnesses and could not deposit the

diet expenses within the time granted by the learned Magistrate due to strikes

and also that the petitioner had fallen seriously ill suffering from several

ailments of cardiology and partial disablement due to brain stroke; that the

learned Magistrate considered the application filed by the petitioner on

06.02.2020 and vide order dated 03.05.2023, dismissed the same imposing a

cost of ₹4,000/- upon the petitioner/accused. It was alleged that by the impugned

order dated 03.05.2023, learned Magistrate had eroded the sanctity of order

dated 25.10.2019 and 06.02.2020 completely and virtually the order dated

25.10.2019 has been recalled/reviewed which is not permissible under the

criminal jurisprudence.

5. It has been alleged that the trial court as well as revisional court have

both committed illegality by passing the impugned orders closing the evidence

of the petitioner/accused in the case against the principles of the criminal

jurisprudence and prayed that this petition be allowed and the impugned orders

be set aside; with further prayer that the learned CJM be directed to accept the

list of witnesses and their diet expenses.

6. Pursuant to notice, the respondent appeared through Mr. D. S. Saini,

Advocate and case was taken up for final consideration.

7. Learned counsel for the petitioner/accused argued that the learned

Magistrate vide order dated 19.04.2011 again closed the evidence of the

petitioner/accused; that the petitioner/accused thereafter filed an application

under Section 540 CrPC for summoning the respondent for re-examination and

cross examination which was dismissed by learned Magistrate vide order dated

04.08.2011; that he moved another application under Section 540 CrPC

submitting the admitted signatures of the respondent to the handwriting expert

which application was also dismissed by the learned Magistrate vide order dated

01.10.2012. Having been aggrieved of this order, the petitioner filed a criminal

revision before the court of learned Principal Sessions Judge Jammu which was

dismissed by him vide order dated 19.07.2013; that the petitioner thereafter

approached this court through the medium of a petition under Section 561-A

CrPC (akin to Section 482 CrPC) No.206/2013 which was finally dismissed by

this court on the ground that same has not been pressed by the

petitioner/accused; that the petitioner/accused then filed an application before

the learned Magistrate seeking direction to the bank authorities of Punjab

National Bank, Shalamar Road, Jammu to furnish the bank statement of the

account of the respondent/complainant for the period 30.01.2008 to 28.02.2008

and also to grant time to the petitioner/accused to lead evidence in view of

peculiar facts and circumstances of the case; that this application was decided by

the learned Magistrate vide order dated 25.10.2019 allowing the application

followed by another order dated 06.02.2020 whereby it was directed that

Manager, PNB and Manager Citizen Cooperative Bank shall be called through

the process of the court, subject to deposit of their diet expenses @ ₹1,000/-

each, by the petitioner/accused.

8. Learned counsel for the petitioner/accused has vehemently argued that

the petitioner despite being allowed to examine two bank officials of Punjab

National Bank (PNB) and Citizen's Cooperative Bank were not allowed to be

examined by the petitioner/accused by the trial court and the closing of the

evidence by the trial court without examining those witnesses amounted to

review of its own orders which is not permissible under the criminal law. He has

further argued that closing of the evidence to the peril of the petitioner/accused

is an abuse of the process of court, as the litigants are to be allowed time to

prove their case and the trial court unmindful of the basic principle of the

criminal law has closed the evidence of the petitioner/accused and also imposed

a cost of ₹4,000/-. He has further argued that the difficulty that the petitioner

was for not examining the witness within the stipulated time was that due to

COVID-19 he could not examine the witnesses within time and also he had

suffered some ailments which prevented him to lead evidence in time. He

further argued that the granting of one more opportunity to examine the 2/3

witnesses in the court, heavens would not have fallen, and rather, the ends of

justice would have been served. It was prayed that since the trial court has fallen

in error which amounted to abuse of process of court by passing the impugned

order which has also been illegally upheld by the revisional court be quashed.

9. Learned counsel for the respondent, on the other hand, has vehemently

argued that the petition filed by the petitioner/accused is not maintainable for the

reason that he has filed this second revision petition under the garb of Section

482 CrPC, after availing the remedy of revision before the Sessions Court. He

has further argued that the Hon'ble Apex Court and various High Courts

including this High Court have laid down that the inherent power under Section

482 CrPC of the Court cannot be invoked for exercising powers, which are

exclusively barred by the Code (CrPC) and since this court had a concurrent

jurisdiction of revision with the Sessions Court and the remedy of revision has

been exercised by the petitioner/accused before the Sessions Court, he cannot

under the garb of this petition under Section 482 CrPC, maintain this second

revision petition against the order passed by the Magistrate which has been

upheld by the Sessions Court.

10. Learned counsel for the respondent has also argued that the

respondent/complainant who is a senior citizen, has been dragged by the

petitioner/accused in the petition under Section 138 NIA which had been filed

by her on 06.06.2008; that the complainant had completed her evidence and

thereafter the respondent as accused was directed to lead evidence. The accused-

petitioner herein however, could examine only one witness and his evidence

came to be closed in the year 2011; that when his evidence was closed the

petitioner/accused at his own leisure filed revision petition against closing of the

evidence before the court of 1st Additional Sessions Judge Jammu, who had

given him two opportunities to lead the evidence, however, the

petitioner/accused could examine only one witness who happens to be his wife;

and thus, only two witnesses were examined and his evidence again came to be

closed on 19.04.2011; he further argued that the petitioner/accused in his third

attempt filed an application under Section 540 CrPC, with a prayer that Bank

officials be allowed to be examined, however, he could not examine those

witnesses within the prescribed period as he had failed to deposit their diet

expenses and his evidence was again ordered to be closed against which he filed

revision petition which was dismissed and now by filing this petition the

petitioner/ accused is making fourth attempt seeking permission to lead fresh

evidence. He has further argued that the petitioner/ accused in a period spanning

over 12 years could not complete the evidence by which he has made a mockery

of the criminal justice system and has been subjected the

respondent/complainant to a great hardship in her advanced stage of age who is

stated to be a retired teacher.

11. Heard, perused and considered.

12. The Negotiable Instruments Act, 1881 was enacted to define and

amend the law relating to promissory notes, bills of exchange and cheques. This

Act was amended in 2002 aimed at speedy disposal of cases relating to the

offence of dishonoring of cheques, through their summary trial as well as

making them compoundable, punishment provided under Section 138 was

enhanced from one year to two years and these legislative reforms were aimed at

encouraging the use of cheques and enhancing the credibility of the instruments

so that the normal business transactions and settlement of liabilities could be

ensured. All offences under this Act, have to be tried summarily in terms of the

Code of Criminal Procedure and Section 143(3) provides that every trial under

this Section shall be conducted as expeditiously as possible and an endeavour

shall be made to conclude the trial within six months from the date of filing of

the complaint.

13. It is very astonishing that this case has lingered on since its filing in

the year 2008 to this date in 2023 awaiting its conclusion. The

respondent/complainant after filing of the complaint led her evidence and the

petitioner as accused was also given sufficient time to lead evidence, however,

the petitioner/ accused examined only one witness and his evidence came to be

closed again on 28.01.2011. The petitioner/accused filed revision petition

against closure of his evidence by the learned Magistrate and the learned 1 st

Additional Sessions Judge Jammu, disposed of the revision petition granting the

petitioner/accused two more opportunities to produce his evidence failing which

the Magistrate was directed to pass appropriate orders in accordance with law.

The petitioner/accused moved fresh applications to the learned Magistrate

seeking re-examination/cross-examination of the respondent/complainant and

also examined one witness on 25.03.2011 and the learned Magistrate following

the orders passed by the revisional court again closed the evidence of the

petitioner/accused on 19.04.2011. The petitioner/accused was not satisfied and

further moved application under Section 540 CrPC for summoning the

respondent/complainant for her re-examination/cross-examination on

04.08.2011 which however was dismissed by the learned Magistrate on

01.10.2012; the petitioner/ accused filed the revision petition against this order

and this order was also assailed in a criminal revision petition before Sessions

Court Jammu which was dismissed by the Principal Sessions Judge Jammu on

19.07.2013. The petitioner/accused again approached this court under Section

561-A CrPC by filing petition which was, however, dismissed as not pressed.

Again moved application before learned Magistrate seeking bank statement of

the account of the respondent/complainant from the PNB Jammu which was

allowed by the learned Magistrate vide order dated 25.10.2019 followed by

another order dated 06.02.2020 whereby Managers of the PNB and Citizens

Cooperative Bank were ordered to be called through the process of the court and

then he moved application seeking direction for production of statement of

account of the respondent/complainant. The learned Magistrate however vide

order dated 03.05.2023 dismissed the applications moved by the

petitioner/accused on 06.02.2020 imposing costs of ₹4,000/-.

14. The petitioner/accused, in a summary nature of cases, has not only

involved the respondent/complainant in a web of litigation dragging the

complaint for over a period of 15 years. The petitioner/accused has also taken

for a ride not only the trial court but Sessions Court and this court in different

rounds of litigation by filing applications after applications, revisions after

revisions and the petitions invoking inherent powers of this Court.

15. In the considered opinion of this court, the trial court has been quite

liberal with the petitioner/accused by granting his applications for leading

evidence and so was the revisional court, however, the petitioner/accused had

misused the proceedings at every level of the litigation and subjected the

respondent/complainant to undue harassment. It was a simple case of dishonor

of a cheque amounting to ₹25,00,000/- for insufficient funds in the account of

the petitioner/accused payable to the respondent/complainant. This court records

that such an approach by the litigant is reprehensible as this seems to be an

attempt to subvert the legal process.

16. On a question of maintainability which has been raised by the learned

counsel for the respondent/complainant, the plea of the respondent/complainant

also seems to be justifiable in view of law laid down by the various

constitutional courts including the Apex Court.

17. The Supreme Court of India in a case titled 'Kailash Verma v.

Punjab State Civil Supplies Corporation' reported as 2005 (2) SCC 571 held

that 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, and that power under

Section 482 CrPC has to be exercised sparingly and should not be utilized, as a

substitute for second revision. The Apex Court in a case titled Rajathi v.

C.Ganesan reported as 1999 AIR (SC) 2374 has also held that once the revision

has been dismissed by the Sessions Court, inherent powers of the High Court

under Section 482 cannot be utilized by filing second revision petition. The

Hon'ble Madhya Pradesh High Court in a case titled 'Manjla @ Mahendra &

Anr. V. State of Madhya Pradesh' reported as 2006 Legal Eagle (MP) 870

observing that there is nothing in the petition to invoke the inherent powers

which are extra-ordinary powers in nature, either to give effect to any order

under this Code or to prevent abuse of the powers of any Court or otherwise to

secure the ends of justice held:

"This petition under Section 482 CrPC being the second revision by the same party is also not maintainable as there is no provision under CrPC for filing the second revision."

Hon'ble Delhi High Court in a case tilted 'Narender V. State'

reported as 2005 Legal Eagle (Del) 537, in a case of similar nature held that this

is a second revision petition under the garb of Section 482 which is barred by

the provision of Section 397(3) Cr.PC.

18. Having regard to the factual as well as legal aspects of the case, as

adumbrated above, petition of the petitioner/accused before this court invoking

inherent jurisdiction is meritless and is also not maintainable in view of legal

position being a second revision petition under the garb of inherent jurisdiction.

19. Viewed thus, in view of aforesaid discussion and observations made

hereinabove, the petition being misconceived and without any merit and

substance is liable to be rejected. As a result, the petition along with connected

application(s) is dismissed. Trial court shall make endeavour to decide the