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2023 Supreme(Megh) 20
IN THE HIGH COURT OF MEGHALAYA AT SHILLONG
W. Diengdoh, J.
Smt. Dasara Suting - Appellant
Versus
Smti. Lina Kharsyntiew - Respondent
Crl. Rev. P. No. 1 of 2021
Decided On : 06-03-2023
Mr. P.K. Borah, Advocate, for the Petitioner; Mr. H.L. Shangreiso, Sr. Advocate with Ms. P. Biswakarma, Advocate, for the Respondent.
A revision petition is not maintainable when the appropriate legal route for appeal has not been followed, emphasizing adherence to established procedural statutes.
Headnote:(A) Criminal Procedure Code, 1973 - Section 397 - Negotiable Instruments Act, 1881 - Section 138 - Revision petition against a conviction for dishonour of cheque - The petitioner contended procedural flaws in trial due to lack of notice and non-cross-examination of defence witnesses - The court held that the petition was not maintainable as the appropriate route for appeal was ignored. (Paras 10, 16, 20)
(B) Maintainability of Revision - The court emphasized that a party cannot bypass the appeal process established under law by directly approaching the High Court for revision when an appeal is available. (Paras 10, 20)
Facts of the case:
The petitioner obtained a loan of Rs. 10,00,000/- and repaid Rs. 4,00,000/- via two instalments. A dishonoured cheque for Rs. 10,00,000/- led to the trial court's conviction with a fine imposed subsequently. (Paras 2, 4, 5)
Findings of Court:
The petition was found not maintainable as proper appellate procedures were not followed, rendering the court unable to consider the merits. (Paras 20, 21)
Issues: The primary issue addressed was whether the revision petition was maintainable given that the petitioner should have appealed rather than seeking revision. (Paras 10, 18)
Ratio Decidendi: The court stated that the failure to utilize the appeal process barred the revision, emphasizing that such procedural lapses hinder the judicial process. (Paras 10, 20)
Result: Petition dismissed.
JUDGMENT
1. This is a revision petition preferred by the petitioner herein, under Section 397 Cr.P.C., being aggrieved by the judgment and order dated 27.01.2020 passed by the learned Judicial Magistrate First Class, Shillong in C.R. Case No. 1741(S) of 2013.
2. The brief background of the case is that the petitioner has obtained a loan from the respondent for an amount of Rs. 10,00,000/-(Rupees ten lakhs) only by deposit of her land documents in respect of her landed property situated at New Colony, Laitumkhrah, Shillong. Thereafter, the petitioner has repaid Rs. 4,00,000/- (Rupees four lakhs) only in two instalments of Rs. 3,00,000/- (Rupees three lakhs) only and Rs. 1,00,000/- (Rupees one lakh) only respectively. Then for repayment of the remaining amount, she has handed over a blank cheque to the respondent.
3. The respondent then entered an amount of Rs. 10,00,000/- (Rupees ten lakhs) only in the cheque and proceeded to encash the same, but due to insufficiency of fund, the same was dishonoured. The respondent caused issue of a notice upon the petitioner who replied by stating that the amount of Rs. 10,00,000/- (Rupees ten lakhs) only is not correct as Rs. 4,00,000/-(Rupees four lakhs) only was returned and only Rs. 6,00,000/- (Rupees six lakhs) only remained as balance and if interest is calculated thereon, the total amount will come to Rs. 7,33,000/- (Rupees seven lakhs thirty three thousand) only. However, the respondent went to the bank to re-encash the said cheque of Rs. 10,00,000/- (Rupees ten lakhs) only but by that time, the petitioner has instructed the Bank to stop payment.
4. The respondent has then taken recourse to the provision of Section 138 of the Negotiable Instruments Act, 1881 by filing a complaint before the court of the learned Judicial Magistrate at Shillong for an alleged dishonour of a cheque for Rs. 10,00,000/- (Rupees ten lakhs) only drawn by the petitioner and which case was registered, initially as C.R. Case No. 1381(C) of 2011 but later renumbered as C.R. Case No. 1741(S) of 2013.
5. The learned Trial Court after conclusion of the trial had convicted the petitioner and had imposed a fine of Rs. 13,00,000/- (Rupees thirteen lakhs) only. Hence this petition.
6. Mr. P.K. Borah learned counsel for the petitioner has submitted that on receipt of the notice from the court, the petitioner entered appearance on 22.02.2012. On that date, the particulars of the offence of which the petitioner was accused of was not stated to her. This, according to the learned counsel is the procedural flaw committed by the Trial Court and as such, the proceedings stands vitiated on this ground alone.
7. Another contention raised by the learned counsel for the petitioner is that in course of proceedings, the petitioner has filed the evidence of her witnesses by way of affidavit. However, these defence witnesses were never cross-examined by the complainant/respondent and eventually, on 06.10.2015, on the submission of the learned counsel for the complainant/respondent, the cross-examination of the defence's witnesses was closed. This has led to the non-consideration or rejection of the evidence of the defence's witnesses by the learned Trial Court which is reflected in the contents of the impugned judgment and which rejection has affected the merits of the petitioner's case before the said court.
8. The learned counsel has also submitted that the learned Trial Court has noticed that since a summons trial was adopted by the Court, notice to the accused person under Section 251 Cr.P.C. has not been issued which is mandatory in nature. This relates to order dated 14.10.2019 where the Court has made such observations. However, on the submission of the learned counsel for the complainant/respondent that since the accused person/petitioner has already taken part in the proceedings and is well aware of the case, non-examination of accused person under Section 251 does not vitiate the proceedings and such defects is curable unde
