Santosh Singh vs Panjab Seeds Corporation And ...
2022 Latest Caselaw 3822 UK

  IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

             Criminal Revision No. 186 of 2017
Santosh Singh                                         ....Revisionist

                                Vs.

Panjab Seeds Corporation and Another ..... Respondents


Presents:-
None for the revisionist.
Mr. B.P.S. Mer, A.G.A. for the State.
Mr. Saurabh Kumar Pandey, Advocate for the respondent no. 1.


                             JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

The challenge in this revision is made to

the following:-

                       (i)     Judgment and order dated

               05.05.2016,       passed       in    Criminal     Case

No.752 of 2013, Panjab Seeds Corporation

Vs. Santosh Singh, by the court of

Additional Chief Judicial Magistrate,

Ramnagar, Nainital ("the case"). By it, the

revisionist has been convicted under

Section 138 of the Negotiable Instruments

Act, 1881 ("the Act") and sentenced to two

years rigorous imprisonment with a fine of

Rs. 34,10,000/-. There are other directions

as well for payment of compensation, and;

(ii) Judgment and order dated

31.05.2017, passed in Criminal Appeal

No.58 of 2016, Santosh Singh Vs. Panjab

Seeds Corporation, by the court of

Additional Sesisons Judge, Ramnagar,

District Nainital ("the appeal"). By it, the

judgment and order dated 05.05.2016,

passed in the case, has been upheld.

2. The revisionist has not been appearing in

this revision. The revision was admitted on 06.07.2017.

Since it is an admitted revision, it has to be decided

irrespective of the absence of the revisionist.

3. Facts necessary to appreciate the

controversy, briefly stated, are as follows; the respondent

no.1, Panjab Seeds Corporation, through its proprietor

Nirmal Singh ("the complainant"), filed a complaint

under Section 138 of the Actagainst the revisionist,

which is basis of the case. After enquiry under Section

200 and 202 of the Code of Criminal Procedure, 1973

("the Code"), by an order dated 05.06.2014, the

revisionist was summoned to answer accusation under

Section 138 of the Act. According to the complainant,

the complainant and the revisionist both are

neighbourers. The revisionist took Rs. 34,00,000/- as

loan from the complainant. As repayment of it, the

revisionist gave a cheque of Rs. 34,00,000/- to the

complainant, which when present was dishonoured. The

complainant issued a statutory notice demanding the

money, but it was not paid. Thereafter, complaint was

filed. The revisionist was read over the accusation. He

denied the accusation. According to him, he neither got

the loan nor did he issue the cheque. In order to prove

its case, the complainant examined himself as a witness.

On behalf of the revisionist, two witnesses, namely DW1

Rajesh Kumar and DW2 Dheer Singh, were examined.

The revisionist was examined under Section 313 of the

Code. Again, he has stated that he has been falsely

implicated. The witness is telling a lie. He neither took

the loan nor did he issue the cheque. According to him,

even the cheque was not signed by him. After hearing

the parties, by the impugned judgment and order dated

05.05.2016, the revisionist has been convicted and

sentenced. This judgment was unsuccessfully challenged

in the appeal. Hence, the revision.

4. As stated, none is present for the

revisionist.

5. The grounds, which the revisionist has

taken in the revision, are as follows:-

(i) The impugned judgments and orders

are against law and facts.

             (ii)     They     are    illegal     and      based   on

                      surmises and conjectures.

             (iii)    The impugned judgments and orders

                      are perverse.

             (iv)     The      evidence         has     not       been

appreciated in right perspective.

             (v)      The complainant has failed to prove

                      the     debt    or    legally     enforceable

liability against the revisionist.

(vi) There is no proof that Rs.

34,00,000/-, as loan, was paid to

the revisionist by the complainant.

(vii) The statement of the complainant is

not reliable.

(viii) In another case filed by the

complainant against the revisionist

under Section 138 of the Act, the

revisionist has been acquitted.

(ix) The revisionist is a small farmer.

6. Learned counsel for the complainant would

submit that the case has been proved beyond reasonable

doubt. The impugned judgments and orders do not

warrant any interference.

7. It is a revision. The scope is quite restricted

to the extent of examining correctness, legality and

propriety of the impugned judgment and order.

Appreciation of evidence is generally not done in a revision

unless the finding is perverse or admissible evidence is not

considered or inadmissible evidence is taken into

consideration.

8. The grounds for revision are general. There

is nothing specific. It has not been stated in the memo of

revision as to why the finding is perverse, as to why the

impugned judgments and orders are based on surmises

and conjectures.

9. It is the categorical case of the complainant

that he advanced Rs. 34,00,000/- as loan to the

revisionist. As PW1, the complainant has proved his case

and stated that in the month of May, 2012, he advanced

Rs. 34,00,000/-, as loan, to the revisionist, out of which

Rs. 25,00,000/- and Rs. 7,50,000/- he withdrew from

bank. As repayment of it, the revisionist gave him a

cheque, which, when presented, was dishonoured. PW1,

the complainant, has also proved the demand notice

given by him.

10. On behalf of the revisionist, two witnesses,

namely, DW1 Rajesh Kumar and DW2 Dheer Singh,

both Bank Managers have been examined. DW1 Rajesh

Kumar was the Manager of Bank of Baroda, Branch

Ramnagar. He has stated that the complainant did not

withdraw Rs. 5,00,000/- in the year 2012. DW2, Dheer

Singh, who is the Manager of State Bank of India,

Branch Ramnagar, in his examination-in-chief has

stated that the complainant did not withdraw Rs.

25,00,000/- from 01.01.2012 to 31.12.2012. But in his

cross-examination, he has admitted that in the month of

May, 2012, on different occasions, the revisionist

withdrew Rs. 25,00,000/- and he also withdrew other

amounts also during that period. According to him, the

statement given by him in his examination-in-chief was

based on assumption that at one time Rs. 25,00,000/-

and Rs. 7,50,000/- were not withdrawn by the

complainant.

11. The complainant did prove that he

withdrew the money from bank and advanced the loan to

the revisionist because the revisionist being neighbourer

had requested him to lend money so that he could fulfil

his obligation under some agreement or else the

revisionist had told it to the complainant that he would

lose his money. DW2, Dheer Singh, in fact, confirmed

that at the relevant time, this amount was withdrawn by

the complainant. The courts below have discussed the

evidence in quite detail; took into notice the presumption

under Section 139 of the Act with regard to legally

enforceable debt and liability. In fact, the revisionist

could not rebut the presumption under Section 139 of

the Act.

12. In view of the forgoing discussion, the

Court is of the view that the complainant has been able

to prove the offence under Section 138 of the Act against

the revisionist beyond reasonable doubt. Therefore, the

conviction of the revisionist under Section 138 of the Act

is upheld.

13. In fact, this judgment was dictated while

upholding the conviction on 23.11.2022, but on that

date, the question of sentence could not have been

visited by this Court. One of the reasons being that the

revisionist is not appearing in the Court. The revisionist

has been convicted with 2 years rigorous imprisonment

with a fine of Rs. 34,10,000/-.

14. Learned counsel for the private respondent

would submit that Rs. 5,00,000/- has already been

deposited by the revisionist.

15. Under Section 138 of the Act, the

maximum sentence that could be awarded is two years.

In the case of Somnath Sarkar Vs. Utpal Basu Mallick

and Another, (2013) 16 SCC 465, the Hon'ble Supreme

Court discussed the nature of offence under Section 138

of the Act and observed that, "dishonour of cheque

being a regulatory offence, aimed at ensuring the

reliability of negotiable instruments, the provision

for imprisonment extending up to two years was only

intended to ensure quick recovery of the amount

payable under the instrument." Referring the

judgment in the case of Damodar S. Prabhu Vs. Sayed

Babalal H., (2010) 5 SCC 663. In Paras 14 and 15, the

Hon'ble Supreme Court observed as hereunder:-

"14. It would also be pertinent to refer to this Court's decision in R. Rajeshwari v. H.N. Jagadish, (2008) 4 SCC 82 : (2008) 2 SCC (Cri) 186, wherein the following observations were made (S.B. Sinha, J. at SCC p. 85, para 12):

"12. Negotiable Instruments Act is a special Act. Section 147 of the Act provides for a non obstante clause, stating:

'147. Offences to be compoundable.--

Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable.' Indisputably, the provisions of the Code of Criminal Procedure, 1973 would be applicable to the proceedings pending before the courts for trial of offences under the said Act. Stricto sensu, however, the table appended to Section 320 of the Code of

Criminal Procedure is not attracted as the provisions mentioned therein refer only to provisions of the Penal Code and none other."

"15. The compounding of the offence at later stages of litigation in cheque bouncing cases has also been held to be permissible in a recent decision of this Court, reported as K.M. Ibrahim v. K.P. Mohammed, (2010) 1 SCC 798 : (2010) 1 SCC (Cri) 921 : (2009) 14 Scale 262, wherein Kabir, J. has noted (at SCC p. 802, paras 13-14):

"13. As far as the non obstante clause included in Section 147 of the 1881 Act is concerned, the 1881 Act being a special statute, the provisions of Section 147 will have an overriding effect over the provisions of the Code relating to compounding of offences. ...

14. It is true that the application under Section 147 of the Negotiable Instruments Act was made by the parties after the proceedings had been concluded before the appellate forum. However, Section 147 of the aforesaid Act does not bar the parties from compounding an offence under Section 138 even at the appellate stage of the proceedings. Accordingly, we find no reason to reject the application under Section 147 of the aforesaid Act even in a proceeding under Article 136 of the Constitution."

16. Having considered the nature of offence,

the kind of transactions, which the parties had, the

position of the offender and other attending factors, this

Court is of the view that interest of justice would be

better served, if the sentence is modified and the

revisionist is sentenced to six months simple

imprisonment instead of two years rigorous

imprisonment. The fine shall remain unaltered.

17. The revision is partly allowed.

18. The conviction of the revisionist under

Section 138 of the Act is upheld. The revisionist is

sentenced to simple imprisonment of six months under

Section 138 of the Act. The fine shall remain unaltered.

The compensation that has to be provided to the

complainant shall also remain unaltered.

19. The impugned judgments and orders are

modified, in terms of sentence, as indicated hereinabove.

20. Let a copy of this judgment along with

lower court record be forward to the court concerned.

(Ravindra Maithani, J.) 29.11.2022 Ravi Bisht