Uttarakhand High Court
Revisionists vs State Of Uttarakhand And Another on 29 June, 2022
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Revision No. 75 of 2021
Mohammad Rizwan @ Pappu and another
.......Revisionists
Vs.
State of Uttarakhand and another
........ Respondents
Present : Mr. Narendra Bali, Advocate for the revisionists.
Mr. V.K. Gemini, Deputy Advocate General for the State.
Mr. Nikhil Singhal, Advocate for the private respondent.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral)
The challenge in the instant revision is made to
the followings:-
(i) Judgment and order dated 30.09.2021,
passed in Complaint Case No. 949 of
2019, Naseem Ahmad vs. Mohammad
Rizwan @ Pappu and another ("the case"),
by the Court of Judicial Magistrate, First,
Haridwar. By it, the revisionists have been
sentenced under Section 138 of the
Negotiable Instruments Act, 1881 ("the
Act") and sentenced to six months simple
imprisonment along with fine of
`7,20,000/-. It has further been directed
that out of the , `7,10,000/- shall be paid
to the private respondent and;
(ii) Judgment and order dated 25.02.2021,
passed in Criminal Appeal No. 230 of
2019, Mohammad Rizwan @ Pappu and
another vs. State, passed by the Court of
Third Additional Sessions Judge,
Haridwar ("the Appeal"). By it, the
judgment and order dated 30.09.2019,
passed in the case has been confirmed.
2. Heard learned counsel for the parties and
perused the records.
3. Facts necessary to appreciate the controversy
are in a very short span. They are as follows. The private
respondent filed a complaint under Section 138 of the Act
against the revisionists. According to it, the revisionist no.
1 is sole proprietor of the trading firm. Revisionist no. 1
purchased scrap from the private respondent on
25.04.2019. The total cost of the scrap was `6,28,360/-.
The revisionist no. 1 gave a cheque dated 25.04.2019 as
consideration. But, when presented on 04.06.2019, it was
dishonored. The information was given to the private
respondent on 08.06.2019. Thereafter, a notice was given
on 10.06.2019 to the revisionists, but they did not pay
the money. Hence, the complaint was filed on 09.07.2019,
cognizance taken. The revisionist no. 1 was read over the
accusations on 08.09.2014. In order to prove its case, the
private respondent appeared himself as PW1. He
reiterated the version of the complaint and produced
various documents, including the cheque Ex. A-1, Bank
memo Ex. A-2, deposition of cheque in the bank receipt
Ex. A-3, a copy of the notice Ex. A-4, and various
documents pertaining to the transactions. He also
submitted that the original Bill Book Ex. A-10, certain
photographs, the documents regarding the income tax
department Ex. A-13, and records of commercial tax Ex.
A-16.
4. The revisionist no. 1 appeared as DW1.
According to him, though he had purchased the articles
from the private respondent, but the cheque was given as
a security for its payment. According to DW1, who is
revisionist no. 1, he had returned all the money due to
the private respondent. He also filed some documents,
but they have not been exhibited.
5. After examining, the revisionist no. 1, under
Section 313 of the Code of Criminal Procedure, 1973 ("the
Code"), by the impugned judgment and order dated
30.09.2019 passed in the case, the revisionist no 1 has
been convicted and sentenced. It has been unsuccessfully
challenged in the appeal.
6. Learned counsel for the revisionists has raised
two issues, which is as hereunder:-
(i) It has not been even shown by the private
respondent as to how did he get that
much scrap on 25.04.2019 in a single day
and how did he transfer it to the
revisionist no. 1 and;
(ii) A ledger book was filed by the revisionists
in the case, but it has not been
considered.
7. It is a revision. This Court cannot sit as a Court
of appeal in this revision. Appreciation of evidence is not
generally done in such proceedings. The scope is to the
extent of examining the correctness, legality and propriety
of an impugned judgment. Of course, evidence may be
appreciated, if the findings recorded is perverse, i.e.
against the weight of evidence or if the material evidence
is ignored or irrelevant material is considered by the
Court while passing the impugned judgment.
8. In any criminal case, the prosecution has
undoubtedly has to prove its case beyond reasonable
doubt. There are various presumptions which can be
raised under the provisions of the Act. For example,
under Section 118 of the Act, presumptions may be raised
with regard to the cheques, about date, consideration,
time of acceptance, etc.
9. Section 139 of the Act also raises presumption
that the holder of a cheque receives it, for a discharge, in
whole or in part, of any debt or other liability. The
presumptions could be rebutted by the standard of
preponderance of probabilities.
10. In the instant case, the private respondent filed
documents and proved them. The revisionist no. 1, has in
his examination-in-chief admitted that he had purchased
the scrap. He has admitted that he gave a cheque, but
according to him, the cheques was given, a security for
payment, which he finally made to the private
respondent. But, revisionist no.1 could not show even one
document or one receipt given by the private respondent,
by which he received the consideration. DW1 Rijwan, who
is revisionist no. 1, has stated in his examination
recorded on 16.03.2017 that on various dates, he paid
money to the private respondent also and gave him
certain articles. But, how was it given? Even otherwise,
on 16.03.2017, when revisionist no. 1 Mohd. Rijwan was
examined, in the second line, he has stated that on
22.04.2009, he paid `1,00,000/- to the private
respondent. The cheque, in question, is dated
25.04.2009. The transaction, according to the private
respondent took place on 25.04.2009. Then, how could
this money, which was allegedly paid by the revisionist
no. 1 on 22.04.2009, be taken into consideration as a
discharge of the liability, which the revisionist no. 1
incurred on 25.04.2009?
11. The argument that it has not been established
as to how the private respondent could get scrap in such
huge volume, which was transferred on the same day, has
no merit for acceptance. This is so because DW1, Mohd.
Rijwan has himself admitted to have taken scrap on that
day. He has admitted to have given cheque on that day.
He has accepted his liability. It is a legally enforceable
liability.
12. The second argument is with regard to the
ledger book. This Court wanted to know from learned
counsel for the revisionists as to where is the proved
ledger book? Has it been proved in accordance with law?
Has it been exhibited? Can it be read in the evidence? The
answer is in negative. The revisionists did not file any
document stating that in fact, the private respondent did
receive the consideration post issuance of cheque. The
revisionists did not rebut the presumption, which were in
favour of the private respondent. The private respondent
did prove its case beyond reasonable doubt. There is no
illegality, error and impropriety in the impugned
judgment. Therefore, the revision has no substance and
deserves to be dismissed.
13. Accordingly, the revision is dismissed.
(Ravindra Maithani, J.)
29.06.2022
AK
