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2016 Supreme(HP) 2473
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
P.S. RANA, J.
Sh. Chaman Lal s/o Sh. Budh Ram Mahat – Appellant
Versus
Sh.Budhi Singh s/o late Sh. Nanak Chand – Respondent
Crl. Revision Petition No. 196/2015
Decided on : 28-10-2016
Advocate Appeared:
For the Respondent:Mr. Naveen K. Bhardwaj, Advocate
The essential ingredients of the offense under section 138 of Negotiable Instruments Act 1881 must be proved beyond reasonable doubt, and the judgments must not be found to be perverse or based on non-appreciation of evidence.
Headnote:
Negotiable Instruments Act - Complaint under section 138 of Negotiable Instruments Act 1881 - [Sections 397, 401 of CrPC 1973] - [138 of Negotiable Instruments Act 1881] - The court affirmed the judgment and sentence passed by the Trial Court and First Appellate Court under section 138 of Negotiable Instruments Act 1881. The court held that all the essential ingredients of the offense were proved beyond reasonable doubt, and the judgments were not found to be perverse or based on non-appreciation of evidence.
Fact of the Case:
The complainant filed a complaint under section 138 of Negotiable Instruments Act 1881 against the revisionist for dishonoring a cheque issued for a loan. The Trial Court convicted the revisionist, and the First Appellate Court affirmed the judgment and sentence.
Finding of the Court:
The court found that all essential ingredients of the offense under section 138 of Negotiable Instruments Act 1881 were proved beyond reasonable doubt. The court also held that the judgments of the Trial Court and First Appellate Court were not perverse and were based on proper appreciation of evidence.
Issues: The issues involved determination of the acceptance of the criminal revision petition and the validity of the judgments passed by the lower courts.
Ratio Decidendi: The court held that the essential ingredients of the offense under section 138 of Negotiable Instruments Act 1881 were proved beyond reasonable doubt, and the judgments were not found to be perverse or based on non-appreciation of evidence.
Final Decision: The criminal revision petition was dismissed, and the judgment and sentence passed by the Trial Court and affirmed by the First Appellate Court were affirmed.
JUDGMENT :
P.S. Rana, J.
1. Present criminal revision petition is filed under sections 397 and 401 Code of Criminal Procedure 1973 against judgment dated 12.05.2015 passed by learned Sessions Judge Kullu (H.P.) in criminal appeal No.05 of 2014 title Chaman Lal Vs. Budhi Singh whereby learned Sessions Judge Kullu dismissed the appeal of revisionist filed against judgment and sentence of learned Trial Court. On date of final hearing none appeared on behalf of revisionist. Learned Advocate appearing on behalf of non-revisionist submitted that learned Advocate appearing on behalf of revisionist sought many adjournments for final hearing and present case be disposed of on merits. Case listed for final hearing on 24.12.2015, 16.03.2016, 29.04.2016, 29.06.2016 and 26.09.2016. Court decided to dispose of revision petition on merits. Execution of sentence passed by learned Trial Court suspended by High Court till disposal of criminal revision petition.
Brief facts of the case:
2. Sh. Budhi Singh complainant filed complaint under section 138 of Negotiable Instruments Act 1881. There is recital in the complaint that complainant and accused are well known to each other and were having good friendly relations. There is further recital in the complaint that in the month of May 2010 revisionist was in dire need of money for construction of his house and revisionist approached the complainant and borrowed a sum of Rs.5 lac in presence of witnesses and assured that he would refund the amount within 3-4 months. There is further recital in the complaint that on dated 21.2.2011 complainant demanded back borrowed money from revisionist but revisionist in order to discharge his antecedent liability issued cheque No.460721 dated 21.2.2011 amounting to Rs.5 lac in favour of complainant. There is further recital in complaint that complainant presented the cheque before the bank but the cheque was dishonoured on account of insufficient fund. There is further recital in the complaint that demand notice was issued to revisionist but despite it revisionist did not pay the amount due. Prayer for conviction of revisionist under section 138 of Negotiable Instruments Act 1881 sought.
3. Learned Trial Court recorded preliminary evidence of complainant and thereafter learned Trial Court held that there are sufficient prima facie grounds to proceed against revisionist for offence punishable under section 138 of Negotiable Instruments Act 1881. Thereafter notice was issued to revisionist by learned Trial Court. Thereafter on 5.12.2012 learned Trial Court issued notice of accusation under section 251 Cr.PC to revisionist for offence punishable under section 138 of Negotiable Instruments Act 1881. Complainant examined two witnesses and revisionist examined one witness. Documentaries evidence also placed on record. On dated 27.11.2013 learned Trial Court convicted the revisionist under section 138 of Negotiable Instruments Act 1881 and sentenced the convict to undergo simple imprisonment for a period of one year. Learned Trial Court also directed the revisionist to pay a sum of Rs.6 lac to complainant. Feeling aggrieved against the judgment and sentence passed by learned Trial Court revisionist filed appeal before learned Sessions Judge Kullu (H.P.) and learned Sessions Judge Kullu (H.P.) dismissed the appeal filed by revisionist on dated 12.5.2015 and affirmed the judgment and sentence passed by learned Trial Court. Feeling aggrieved against the judgment and sentence passed by learned Trial Court and affirmed by learned First Appellate Court revisionist filed the present criminal revision petition.
4. Court perused entire plea pleaded by revisionist in revision petition and Court heard learned Advocate appearing on behalf of non-revisionist and Court also perused the entire record carefully.
5. Following points arise for determination:
1) Whether criminal revision petition filed by revisionist under section 397 and 401 Code of Criminal Procedure 1973 is liable to be accept
