Madhya Pradesh Rajya Sahkari Bank ... vs Manoj Kumar
2023 Latest Caselaw 13086 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. 902 of 2011

BETWEEN:-
MADHYA PRADESH RAJYA SAHKARI
BANK MARYADIT, BHOPAL, BRANCH
JIWAJI CHOWK, GWALIOR THROUGH
BRANCH MANAGER, B.D. SHIVHARE
S/O LATE SHRI R.N. SHIVHARE, AGED
ABOUT 52 YEARS, R/O MADHO GANJ,
LASHKAR,    GWALIOR      (MADHYA
PRADESH)

                                        ......PETITIONER

(BY SHRI ANIL KUMAR SHRIVASTAVA - ADVOCATE)

AND
MANOJ     KUMAR     S/O    SHRI
RAMSWAROOP SHRIVASTAVA, AGED
ABOUT 35 YEARS, OCCUPATION -
AUTO DRIVER, R/O HOUSE OF
RAMESH     BATHAM,     OPPOSITE
RAJPUT FLOOR MILS, CHANDRA
NAGAR,     DISTRICT    GWALIOR
(MADHYA PRADESH)

                                        .....RESPONDENT

(BY SHRI DEEPENDRA SINGH TOMAR- ADVOCATE)
                                            02

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       Reserved on : 24.07.2023

       Pronounced on : 11.08.2023

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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.291 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.1975/2007 was set-aside and the appeal was allowed.

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

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

(1) S.L. Gupta, Branch Manager, M.P. State Co-operative Bank Limited had filed a complaint for an offence punishable under Section 138 of Negotiable Instruments Act alleging that in

the year 2002, accused Manoj Kumar was granted loan of Rs. 2,60,000/- under the Vehicle Loan Scheme of complainant/Bank. Manoj had issued cheque No. 261862 dated 10.01.2007 for an amount of Rs.2,00,000/- towards repayment of loan taken under Vehicle Loan Scheme. This cheque No.261861 dated 10.01.2007 was presented for encashment but was dishonored due to insufficient fund in the account of accused Manoj Kumar. Complainant issued demand notice dated 19.01.2007. Despite service of notice, accused 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 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 one year and directed him to pay compensation, under Section 357(3) of CrPC, of Rs.3,58,000/-, within two months, with default stipulation of rigorous imprisonment for six 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 vide judgment dated 30.07.2011 in Cr.A.No.291/2011 allowed the appeal and set-aside the conviction and the sentence.

Feeling aggrieved by findings of the appellate Court, this revision is filed assailing the judgment of acquittal on following grounds-

1. The reasons assigned by learned appellate Court for acquitting the accused are against all the grounds of criminal jurisprudence.

2. Learned appellate Court has wrongly interpreted the provision of Section 138 of Negotiable Instruments Act. The finding of learned trial Court has not been correctly appreciated by the appellate Court.

3. Dishonored of cheque for insufficiency of fund in the account of accused clearly makes out an offence under Section 138 of Negotiable Instruments Act, but learned appellate Court without any cogent reason acquitted the respondent.

On aforesaid grounds, the impugned judgments of appellate Court deserves to be set aside.

Learned counsel for the petitioner contends that existence of legally recoverable debt or liability is to be presumed in favour of holder of cheque. Learned appellate Court filed to appreciate the legal presumption under Sections 118 and 139 of Negotiable Instruments Act. The judgment of appellate Court suffers from illegality or perversity in the impugned judgment.

Per contra, learned counsel for the respondent submits that

learned appellate Court considered all aspects of the evidence on record, 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 is 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 reappreciate the evidence, as second Appellate Court, for the purposes of determining whether the finding of fact reached by the learned Appellate Court was correct.

Further the initial presumption of innocence in favour of the accused stands fortified by the judgment of appellate Court, therefore, the appellate judgment would not be interfered with lightly unless there is clear illegality or perversity on the face of record.

Para 2 of the complaint states that accused has submitted application dated 19.01.2002 for grant of vehicle loan under the Vehicle Loan Scheme of the complainant/Bank. Accordingly,

accused was granted loan of Rs.2,60,000/-. V.K. Shukla (CW-1) also stated on same line, this loan of Rs.2,60,000/- is alleged to be legally recoverable debt or liability against the accused. The cheque in question was alleged to be issued on 10/01/2007. Obviously, the loan advanced in 2002 would be time barred if there is no acknowledgment of liability in the interregnum period by the accused. Branch Manager V.K. Shukla (CW-1) in his cross- examination specifically admitted that accused has given cheque towards payment of time barred debt.

Thus, by preponderance of probability the accused has succeeded in rebutting the presumption of existence of legally recoverable debt against him. In such scenario, the onus shifts on the complainant to show existence of legally recoverable debt against the accused. Branch Manager V.K. Shukla (CW-1) and Assistant Manager Vimal Kishore Maheshwari (CW-2) could not explain the details of loan against the petitioner. Both the witnesses failed to state the amount of loan outstanding against the accused on the date when complaint was filed. No documentary evidence with regard to grant of loan much less the statement of loan amount was produced before the trial Court by the complainant. Thus, the presumption regarding existence of legally recoverable debt in favour of complainant stands rebutted in the obtaining circumstances of the case.

(Rangappa vs. Sri Mohan (2010) 11 SCC 441, Krishna Janardhan Bhatt vs. Dattatraya G. Hedge (2008) 4 SCC 54 and

Basalingappa vs. Mudibasappa (2019) 5 SCC 418 relied.) Learned appellate Court considering these aspects and held in para 16 that presumption under Section 139 of Negotiable Instruments Act stands rebutted as the cheque in question was not issued against legally recoverable debt. The finding of learned appellate Court does not suffer any patent illegality or impropriety.

In view of above discussion, no case is made out to interfere in reasoned finding of learned appellate Court.

The impugned judgment does not suffer from any illegality or impropriety. No case for interference in exercise of revisional jurisdiction is made out.

The petition sans merits and is hereby dismissed.

(Sanjeev S Kalgaonkar) Judge Monika 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=1cbbae26c87c00013f5046748e62527c7ddf7 dd9146694af9eed96f47a359612,

SHARMA pseudonym=8180EC3871BD176BD2DDA05FB4BDBD B9D75EA511, serialNumber=467E3B08B967B1DB89B83343F4529AC CC8C299CC7F76C573D43B2B9074222453, cn=MONIKA SHARMA Date: 2023.08.11 15:38:22 +05'30'