Uttarakhand High Court
Shiv Kumar vs Deepa Devi And Others on 6 September, 2022
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Revision No. 331 of 2018
Shiv Kumar ..........Revisionist
Vs.
Deepa Devi and others ........ Respondent
Present : None appears for the revisionist.
Mr. V.K. Gemini, Deputy Advocate General for the State.
Mr. Yogesh Pant, Advocate for the private respondent.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral)
The challenge in this revision is made to the
following judgment and orders:-
(i) judgment and order dated
09.08.2017, passed in Criminal Case
No. 97 of 2011, Bisht Book Depot
Vs. Shiv Kumar Singh, ("the case"),
passed by the Court of Additional
Chief Judicial Magistrate, Khatima,
District Udham Singh Nagar. By it,
the revisionist has been convicted
under Section 138 of the Negotiable
Instruments Act, 1881 ("the Act")
and sentenced to one year rigorous
imprisonment with a fine of Rs.
2,45,000/-. It has further been
directed that out of the fine Rs.
2,40,000/- shall be paid to the
respondent no. 2, Bisht Book Depot
("the complainant").
(ii) Judgment and order dated
27.09.2018, passed in Criminal
Appeal No. 170 of 2017, Shiv Kumar
Singh Vs. Bisht Book Depot &
another, by the court of Additional
Sessions Judge, Khatima, District
Udham Singh Nagar. By it, the
judgment and order passed in the
case has been confirmed.
2. In this revision, the revisionist has not been
appearing. The revision has already been admitted. The
law on the revision is well settled that once the revision is
admitted, it has to be decided on merits, it cannot be
dismissed in non-prosecution. The Court proceeds to
decide the revision.
3. The case is based on a complaint, filed under
Section 138 of the Act, by the complainant. According to
it, the revisionist had agreed to sale his four bigha land to
the complainant on 06.08.2010. It was a written
agreement. The revisionist received Rs. 5,45,000/-.
Subsequently, it was revealed that the revisionist
belonged to Tharu Janjati and he could not transfer his
land, therefore, the complainant demanded his money.
On 15.12.2010, the revisionist gave a cheque of Rs.
1,60,000/- to the complainant, which was presented on
01.02.2011, and, was dishonored with the remark
"insufficient funds". Notice was given and thereafter, after
statutory compliance, the complaint was filed. It is the
basis of the case. On 01.03.2011, itself, the revisionist
was summoned to answer accusation under Section 138
of the Act.
4. The accusation was read over to revisionist
under Section 251 of the Code of Criminal Procedure,
1973 ("the Code"). The revisionist had admitted to have
given the cheque, but, according to him, it was a security
cheque. In this statement, the revisionist told that he had
taken a loan of Rs. 1,00,000/- from the complainant. But,
despite return of the money, the cheque has not been
given back by the complainant.
5. In evidence, on behalf of the complainant,
complainant himself appeared as PW1 Subhash Kumar
and PW2 Baldev Singh Rawat has also been examined on
behalf of the complainant. On behalf of the revisionist, he
himself as DW1 and DW2 Mohan Singh have been
examined. The revisionist was examined under Section
313 of the Code. He reiterated the version, which he gave
at the stage under Section 251 of the Code. After hearing
the parties, the revisionist has been convicted and
sentenced, by the impugned judgment and order, passed
in the case, which has been upheld in the appeal. Hence,
the revision.
6. The grounds for revision are as follows:-
(i) Agreement was allegedly made between
Subhash Singh Bisht and the revisionist,
whereas the cheque was given in the
name of Bisht Book Depot, Khatima. This
aspect was not examined by the court.
(ii) The complainant did not examine any
bank employee to prove that the cheque
was dishonored.
(iii) The alleged agreement dated
06.08.2010 was not registered, it was a
fabricated document.
(iv) The cheque in-question was a security
cheque.
(v) The manner in which Rs. 5,45,000/-
was paid to the revisionist has not been
disclosed.
(vi) The presumption under Section 139 of
the Act has been rebutted, but it was not
considered.
7. Learned counsel appearing for the complainant
would submit that the revisionist had admitted to have
given the cheque. It was in the name of Bisht Book Depot,
with whom the revisionist had executed an agreement to
sale his property. The complainant is Bisht Book Depot.
Therefore, there is no illegality in the impugned judgment
and order.
8. This is a revision. The scope is quite restricted
to the extent of examining the correctness, legality and
propriety of the impugned judgment and order.
Appreciation of evidence in these proceedings is not a
routine. Appreciation is not made generally, unless, the
finding recorded is perverse or material evidence is
ignored or irrelevant material is considered.
9. In his examination-in-chief, the complainant
has reiterated the version of the complaint. He was
extensively cross-examined. He has stated that a stamp
was written, which is in his possession, but the land was
not transferred to his name. PW2 Baldev Singh Rawat has
also supported the case of the complainant. On the other
hand, the revisionist, as a witness, has stated that he
took Rs.1,00,000/- as loan from Subhash Singh Bisht
and gave two cheques to him, one belongs to the instant
case. According to the revisionist, he had given the
cheuque as a security, which even after payment of the
loan, according to the revisionist, was not given back to
him. This is what PW2 Mohan Singh has stated. The
court below has considered the evidence and found that,
in fact, it has not been proved that the cheque was given
only as a security.
10. Admittedly, the revisionist gave cheque.
According to him, he had taken Rs. 1,00,000/- loan from
the complainant, which he had returned, but the cheque
was not returned. There is no evidence to support it. The
presumption under Section 139 of the Act has not been
rebutted. The cheque was given in the name of Bisht
Book Depot. He is the complainant. According to the
revisionist, it is a propriety firm. In case, it is a propriety
firm it makes no difference as to whether the complaint is
filed by the proprietor or in the name of propriety firm
because it is the firm of single owner. Therefore, the
challenge made on this ground has no merits for
acceptance.
11. Examination of Bank employee is not necessary
to prove the bank memos. It is the fact that the cheque
given by the revisionist was dishonored.
12. Having considered the entirety of facts, this
Court is of the view that the impugned judgment and
orders are not wrong, illegal or improper. They do not
warrant any interference, therefore, the revision deserves
to be dismissed.
13. Accordingly, the revision is dismissed.
(Ravindra Maithani, J.)
06.09.2022
AK
