Manoj Kumar vs M.P.Rajya Sahkari Bank Maryadit, ...
2023 Latest Caselaw 13084 MP

                                           01

  IN THE         HIGH COURT              OF MADHYA PRADESH

                           AT G WA L I O R
                              BEFORE
  HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR

              CRIMINAL REVISION No. 834 of 2011

BETWEEN:-
MANOJ     KUMAR    S/O   SHRI
RAMSWAROOP SHRIVASTAVA, AGED
ABOUT 36 YEARS, OCCUPATION -
AUTO DRIVER, R/O SHINDE KI
CHHAWANI, LASHKAR, DISTRICT
GWALIOR (MADHYA PRADESH)

                                                          ......PETITIONER

(SHRI DEEPENDRA SINGH TOMAR - ADVOCATE)

AND
MADHYA PRADESH SAHKARI BANK
MARYADIT,   BHOPAL,     BRANCH
MANAGER, Y.D. GAUTAM S/O C.L.
GAUTAM, AGED ABOUT 62 YEARS, R/O
CITY CENTER, GWALIOR (MADHYA
PRADESH)

                                                          .....RESPONDENT

(SHRI ANIL KUMAR SHRIVASTVA - ADVOCATE)

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       Reserved on :         24.07.2023

       Pronounced on : 11.08.2023
                                            02

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       This revision having been heard and reserved for order,
coming on for pronouncement this day, this Court passed the
following:

                                  ORDER

This criminal revision under Section 397 read with Section 401 of CrPC is filed assailing the judgment dated 30/07/2011 passed by VIth Additional Sessions Judge, Gwalior in Cr.A.No.292 of 2011 whereby the judgment of conviction and sentence dated 26.04.2011 passed by Shri A.K. Pandey, Judicial Magistrate First Class, Gwalior in Criminal Case No.16354/2007 was confirmed and the appeal was rejected.

For the sake of convenience, hereinafter, the respondent M.P. State Co-operative Bank Ltd. will be addressed as complainant and the petitioner Manoj Kumar will be addressed as accused.

The exposition of facts giving rise to this revision is as under:-

(1) Y.D. Gautam, Branch Manager, M.P. State Co-operative Bank Ltd. had filed a complaint for offence punishable under Section 138 of Negotiable Instruments Act alleging that Manoj Kumar had issued Cheque No.281861 dated 26/09/2003 for an amount of Rs.36,000/- towards repayment of loan taken under the Vehicle Purchase Scheme. This Cheque No.261861 dated 26/09/2003 was presented for encashment but was dishonored due

to insufficient fund in the account of accused Manoj Kumar. Complainant issued demand notice dated 10/10/2003. Despite service of notice, Manoj Kumar failed to pay the amount of cheque, therefore, complaint was filed before the learned Judicial Magistrate First Class, Gwalior.

(2) On completion of trial, after hearing both the parties, learned Judicial Magistrate First Class passed the impugned judgment dated 26.04.2011 and convicted Manoj Kumar for offence punishable under Section 138 of Negotiable Instruments Act and sentenced him to undergo RI for 04 months and directed him to pay compensation, under Section 357(3) of CrPC, of Rs.87,100/- within two months, with default stipulation of rigorous imprisonment for four months.

(3) Feeling aggrieved by the judgment of conviction and order of sentence, Manoj Kumar filed criminal appeal before the Sessions Court. Learned VIth Additional Sessions Judge, Gwalior rejected the appeal and confirmed the conviction and the sentence vide judgment dated 30.07.2011 in Cr.A.No.292/2011.

Feeling aggrieved by concurrent finding of the learned Trial Court and the Appellate Court, this revision is filed assailing the judgment of conviction and sentence on following grounds-

A. Learned Trial Court and the Appellate Court failed to appreciate the fact that V.K. Shukla, Branch Manager was not authorized to file the complaint, he has expressed ignorance about

grant of loan to the accused.

B. As per prosecution story, loan of Rs.2,60,000/- was sanctioned in the year 2002, but the complainant failed to produce evidence with regard to amount of loan outstanding against the accused. The complainant had filed three different complaints with regard to dishonour of cheque No.261861 dated 26.09.2003 for amount of Rs.36,000/-, Cheque No.261862 dated 10.01.2007 for amount of Rs. 2,00,000/- and Cheque No.261882 dated 15.09.2007 for amount of Rs. 1,27,000/-, but the complainant failed to explain the amount of loan which was to be recovered from the accused, therefore, existence of legally recoverable liability was not made out.

C. The Appellate Court accepted the Appeal Nos.291 of 2011 and 293 of 2011 which were filed on the same ground and acquitted the accused therein, but rejected the appeal in the instant case which is grave error of law.

On aforesaid grounds, the impugned judgment of the trial Court as well as the Appellate Court deserves to be set aside.

Learned counsel for petitioner contends that the complainant failed to submit details of loan outstanding against the accused, therefore, existence of legally recoverable debt or liability was not proved. The judgment of Appellate Court suffers from illegality or perversity.

Per contra, learned counsel for the respondent submits that

learned Trial Court and the first Appellate Court had considered all aspects contended by learned counsel for the petitioner and given reasoned findings, therefore, in absence of any patent illegality, the findings cannot be interfered with.

Heard learned counsel for both the parties and perused the record.

Under Section 397 of the Cr.P.C, the Court is vested with the power to call for and examine the record of any inferior Court for the purpose of satisfying itself as to legality and regularity of any proceedings or order made in a case. The object of this provision is to correct the patent defect or an error of jurisdiction or the perversity which has crept in the proceedings.

However, the High Court, in revision, exercises supervisory jurisdiction of a restricted nature. It cannot re-appreciate the evidence, as Second Appellate Court, for the purposes of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned Additional Sessions Judge was correct. Recently, in case of Malkeet Singh Gill v. State of Chhattisgarh, reported in (2022) 8 SCC 204, the Supreme Court observed as under-

"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 detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction alike to 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 for the purpose of satisfying 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 well-founded error which is to be determined on the merits of individual case. 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."

(Duli Chand v. Delhi Admn.(1975) 4 SCC 649; State of Maharashtra v. Jagmohan Singh Kuldip Singh Anand (2004) 7 SCC 659also relied)

Vimal Kishore Maheshwari, Assistant Manager (CW-2) submitted that the Branch Manager, V.K. Shukla is authorized by the Bank to file the complaint in this regard. Circular (Exhibit P/6) is on record which was not challenged by the accused. Learned Trial Court in Para No.7 of the impugned judgment has given reasoned finding that V.K. Shukla being the Branch Manager of complainant Bank was authorized to prosecute the complaint and to give evidence on behalf of the Bank. Learned Appellate Court in Para 8 of the impugned judgment considered this finding and affirmed it with reason.

Learned counsel for the petitioner contends that the petitioner is acquitted in other two matters on same set of facts, therefore, impugned judgment suffers from illegality or perversity.

Every case is to be decided on the evidence on its record. The petitioner/accused has not taken any defence with regard to pendency of other prosecutions against him, therefore, acquittal of petitioner in other matters would not per se entitle him for acquittal in case under consideration also.

Learned counsel for the petitioner relying on the judgments of Hon'ble Supreme Court in the cases of Rev. Mother Marykutty Vs. Reni C. Kottaram reported in (2013) 1 SCC 327 and M.S. Narayana Menon Vs. State of Kerala reported in AIR 2006 SC 3366, contends that the complainant failed to submit details of loan outstanding against the accused, therefore, presumption of legally recoverable debt or liability stand rebutted.

Accused Manoj Kumar has not challenged receipt of loan amount of Rs.2,60,000/- under the Vehicle Loan Scheme. Rather, in examination of accused under Section 313 of CrPC, he had specifically admitted that he has taken loan of Rs.2,60,000/- from the complainant Bank under Vehicle Loan Scheme. Therefore, learned Trial Court and Appellate Court have not committed mistake in drawing presumption of existence of legally enforceable liability in favour of the holder of cheque i.e., the complainant Bank. The cheque in question was issued within three years of advancement of loan i.e., within limitation for recovery of loan. The accused has not submitted any evidence to show re-payment of the loan, therefore, nothing is brought on record to rebut the

legal presumption under Sections 118 and 139 of Negotiable Instruments Act. Thus, the law laid down in cases of Rev. Mother Marykutty and M.S. Narayana Menon (supra) is of no assistance to the accused in circumstance of the case.

In view of such facts, learned Trial Court in Paras No.12 and 19 of the impugned judgment and the First Appellate Court in Paras No.10 and 13 of the impugned judgment committed no error in holding that cheque in question was issued for re-payment of loan amount, which was legally recoverable liability against the accused. The finding of learned Trial Court and Appellant Court does not suffer any patent illegality or perversity. No interference in the concurrent findings in exercise of revisional jurisdiction is called for.

The loan taken by the petitioner from the complainant bank was not repaid. Due to this, the complainant has been deprived of the money lent to accused for a long time. The sentence and the direction for compensation imposed by the learned Trial Court and affirmed by the Appellate Court are appropriate and proportionate. No case for interference in exercise of supervisory jurisdiction is made out.

The petition sans merits and is hereby dismissed.

A copy of the order be sent to the Trial Court along with original record for appropriate action as per law.

(Sanjeev S Kalgaonkar) Monika Judge Digitally signed by MONIKA SHARMA

MONIKA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya Pradesh, 2.5.4.20=1cbbae26c87c00013f5046748e62527c7ddf 7dd9146694af9eed96f47a359612,

SHARMA pseudonym=8180EC3871BD176BD2DDA05FB4BDBD B9D75EA511, serialNumber=467E3B08B967B1DB89B83343F4529A CCC8C299CC7F76C573D43B2B9074222453, cn=MONIKA SHARMA Date: 2023.08.11 15:32:31 +05'30'