Mr.Mohan Kumar Khurana, ... vs Mrs.B.H.Laxmi, Hyd And Anr, Rep ...
2023 Latest Caselaw 2727 Tel

        THE HON'BLE SRI JUSTICE E.V.VENUGOPAL

       CRIMINAL REVISION CASE No.2641 OF 2017

ORDER:

1 Heard Sri Aadesh Verma, learned counsel for the petitioner

and Sri Ch.Ravinder, learned counsel for the respondent.

2 This criminal revision case is filed challenging the

judgment dated 13.09.2017 passed in Crl.A.No.306 of 2013 on

the file of the Court of the Additional Metropolitan Sessions

Judge for Trial of Communal Offences Cases-cum-VII Additional

Metropolitan Sessions Judge, Hyderabad, whereby the learned

Additional Sessions Judge dismissed the appeal confirming the

judgement dated 13.12.2012 passed in C.C.No.13 of 2010 on

the file of the Court of the learned XX Additional Chief

Metropolitan Magistrate, Hyderabad, by virtue of which the

learned Magistrate acquitted the first respondent herein for the

offence under Section 138 of Negotiable Instruments Act.

3 The facts in brief are that the petitioner and the first

respondent are well acquainted with each other and that the

first respondent approached the petitioner for a hand loan of

Rs.10.00 lakhs as such the petitioner advanced the said amount

to the first respondent on 1012.2008 and that the first

respondent and her husband executed a demand note in favour

of the petitioner agreeing to repay the loan amount with interest

@ 24% p.a. but failed to repay the amount. After much

persuasion, finally the first respondent issued a cheque bearing

No.417859 dated 05.05.2009 for Rs.10.00 lakhs and when the

said cheque was presented in the bank, the same was returned

for the reason 'funds insufficient'. The petitioner issued a legal

notice to the first respondent which was received by her and she

issued a reply notice but failed to pay the amount. After

following the due procedure, the petitioner filed the complaint

before the learned Magistrate for the offence under Section 138

of the Negotiable Instruments Act.

4 During the course of trial, the petitioner himself examined

as P.W.1 and got marked EXs.P.1 to P.12. On behalf of the first

respondent, her husband was examined as D.W.1 and got

marked Exs.D.1 to D.14.

5 Both the Courts below have concurrently held that the

petitioner failed to discharge the onus on his part in respect of

legally enforceable debt. The contention of the petitioner is that

he advanced Rs.10.00 lakhs to the first respondent and her

husband on 10.12.2008 and they executed a pronote jointly and

subsequently after several demands the first respondent issued

a cheque for Rs.10.00 lakhs which was dishonoured due to

insufficient funds and a legal notice was issued but no payment

was made. The first respondent by marking Exs.D.1 and D.2

probablised their defence that she issued the blank cheques,

blank promotes and blank NJ stamp papers towards security for

the purpose of Exs.D.1 and D.2. Ex.D.1 is the copy of the

agreement of sale and Ex.D.2 is the copy of registered sale

deed. So the first respondent explained how the cheque came

into possession of the petitioner and how they were utilised by

the petitioner. Hence the first respondent rebutted the

presumption under Section 139 of the N.I.Act. But the

petitioner failed to discharge the onus on his part. Moreover,

the petitioner is doing money lending business, but he failed to

produce any licence to that effect. Without valid licence, a

transaction does not come within the purview of legally

enforceable debt or other liability as contemplated under

Section 138 of the N.I.Act. At one time the petitioner states

that the amount was Rs.10.00 lakhs and at some time he states

that the first respondent borrowed Rs.17.00 lakhs. There is

inconsistency in the figures. Therefore, the petitioner failed to

establish his case against the first respondent beyond all

reasonable doubt for the offence under Section 138 N.I.Act.

6 In Bindeshwari Prasad Singh and Ors. vs. State of

Bihar and Ors. 1 the Hon'ble Supreme Court held as follows:

12. We have carefully considered the material on record and we are satisfied that the High Court was not justified in re- appreciating the evidence on record and coming to a different conclusion in a revision preferred by the informant under Section 401 of the Code of Criminal Procedure. Sub-section (3) of Section 401 in terms provides that nothing in Section 401 shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction. The aforesaid sub-section, which places a limitation on the powers of the revisional court, prohibiting it from converting a finding of acquittal into one of conviction, is itself indicative of the nature and extent of the revisional power conferred by Section 401 of the Code of Criminal Procedure. If the High Court could not convert a finding of acquittal into one of conviction directly, it could not do so indirectly by the method of ordering a re-trial. It is well settled by a catena of decisions of this Court that the High Court will ordinarily not interfere in revision with an order of acquittal except in exceptional cases where the interest of public justice requires interference for the correction of a manifest illegality or the prevention of gross miscarriage of justice. The High Court will not be justified in interfering with an order of acquittal merely because the trial court has taken a wrong view of the law or has erred in appreciation of evidence. It is neither possible nor advisable to make an exhaustive list of circumstances in which exercise of revisional jurisdiction may be justified, but decisions of this Court have laid down the parameters of exercise of revisional jurisdiction by the High Court under Section 401 of the Code of Criminal Procedure in an appeal against acquittal by a private party.

14. We are, therefore, satisfied that the High Court was not justified in interfering with the order of acquittal in exercise of its revisional jurisdiction at the instance of the informant. It may be that the High Court on appreciation of the evidence on record may reach a conclusion different from that of the trial court. But that by itself is no justification for exercise of revisional jurisdiction under Section 401 of the Code of Criminal Procedure

(2002) 6 SCC 650

against a judgment of acquittal. We cannot say that the judgment of the trial Court in the instant case was perverse. No defect of procedure has been pointed out. There was also no improper acceptance or rejection of evidence nor was there any defect of procedure or illegality in the conduct of the trial vitiating the trial itself. At best the High Court thought that the prosecution witnesses were reliable while the trial court took the opposite view. This Court has repeatedly observed that in exercise of revisional jurisdictional against an order of acquittal at the instance of a private party, the Court exercises only limited jurisdiction and should not constitute itself into an appellate court which has a much wider jurisdiction to go into questions of facts and law, and to convert an order of acquittal into one of conviction. It cannot be lost sight of that when a re-trial is ordered, the dice is heavily loaded against the accused, and that itself must caution the Court exercising revisional jurisdiction. We, therefore, find no jurisdiction for the impugned order of the High Court ordering re-trial of the appellants.

15. The High Court has noticed the fact that the State had preferred an appeal against the acquittal of the appellants. That appeal was dismissed by the High Court on the ground of limitation. In principle that makes no difference, because the dismissal of the appeal even on the ground of limitation is a dismissal for all purposes. As observed earlier, the jurisdiction of the High Court in dealing with an appeal against acquittal preferred under Section 374 of the Code of Criminal Procedure is much wider than the jurisdiction of revisional court exercising jurisdiction under Section 401 of the Code of Criminal Procedure against an order of acquittal at the instance of a private party. All grounds that may be urged in support of the revision petition may be urged in the appeal, but not vice versa. The dismissal of an appeal preferred by the State against the order of acquittal puts a seal of finality on the judgment of the trial court. In such a case it may not be proper exercise of discretion to exercise revisional jurisdiction under Section 401 of the Code of Criminal Procedure against the order of acquittal at the instance of a private party. Exercise of revisional jurisdiction in such a case may give rise to an incongruous situation where an accused tried and acquitted of an offence, and the order of acquittal upheld in appeal by its dismissal, may have to face a second trial for the same offence of which he was acquitted.

7 Having regard to the facts and circumstances of the case

and also in view of the principle laid down by the Hon'ble

Supreme Court supra, the criminal revision case is dismissed,

confirming the judgement dated 13.09.2017 passed in

Crl.A.No.306 of 2013 on the file of the Court of the Additional

Metropolitan Sessions Judge for Trial of Communal Offences

Cases-cum-VII Additional Metropolitan Sessions Judge,

Hyderabad. Miscellaneous petitions if any pending in this

criminal petition shall also stand dismissed.

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E.V.VENUGOPAL, J.

Date: 26.09.2023 Kvsn