R.K. Manuja v. Vinod Padia

o 243o o INoTHEoHIGHoCOURToOFoPUNJABoANDoHARYANAoo AToCHANDIGARHo ****o o o o o o o CRR-2913-2014o o o Dateoofodecision:27.03.2023o o o R.K.oMANUJAo o o o o o o o o o o ….Petitionero o Versuso o VINODoPADIAo o o o o o o o o o ….Respondento o CORAM:oo HON'BLEoMR.oJUSTICEoHARSHoBUNGERo Presento:o Mr.oRajeshoArora,oAdvocateo o o forotheopetitioner.o o o o Ms.oShwetaoSanghi,oAdvocateo o o foroMr.oAdityaoSanghi,oAdvocateo o o forotheorespondent.o HARSHoBUNGER,oJ.o(ORAL)o o o Prayero ino theo presento petitiono iso foro settingo asideo theo impugnedo judgmentodatedo25.08.2014opassedobyotheoCourtoofolearnedoAdditionaloSessionso Judge,o Gurgaon;o whereby,o theo respondent-accusedo haso beeno acquittedo ono ano appealofiledobyohimoagainstotheojudgmentoofoconvictionodatedo30.09.2013oando ordero ofo sentenceo datedo 03.10.2013o passedo byo theo Courto ofo learnedo Judicialo MagistrateoIstoClass,oGurgaon.o

2.o o Briefofactsoofotheocaseoareothatotheopetitioner-complainantofiledoao complaintounderoSectionso138,o141oando142oofotheoNegotiableoInstrumentsoAct,o 1881o(foroshorto`theoN.I.oAct')oreadowithoSectiono420oofotheoIndianoPenaloCode,o onotheoallegationothatotheocomplainantoisoaoproprietorshipofirm,owhichodealsoinotheo manufacturingo ofo Hydraulico Presseso ando hado businesso relationo witho theo respondent-accused,o whoo hado boughto Tripleo Actiono Hydraulico Scrapo Bailingo authenticity of this order/judgment 1/10o o o Presso(2.50otons)owitho11oKWo960oRPMoElectricoMotorocompleteowithopumpo unit,o pipelineo ando allo accessorieso foro ano amounto ofo Rs.6,25,000/-o alongo witho Form-HovideoinvoiceoNo.46odatedo16.05.2011.oItowasostatedothatotheorespondent-accusedohadopaidoonlyotheobilloamountoofoRs.6,25,000/-obutoheodidonotopayotheo VAToamountotootheocomplainant.oItowasotheocaseoofotheocomplainantothatotheo respondent-accusedohadotoopayotheoVAToamountoofoRs.78,125/-ooroheohadotooissueo Formo`H'obeforeo16.09.2011,owhichoheohadofailedotoodo.oItowasoallegedothatoino dischargeoofothisoliabilityoofotheorespondent-accused,oheohadoissuedoaoChequeo bearingo No.152971o datedo 16.09.2011o foro Rs.75,000/-o drawno ono Standardo CharteredoBank,oPitampura,oNewoDelhi.oHowever,owhenotheosaidochequeowaso presentedo foro encashment,o theo sameo waso dishonouredo ando returnedo witho theo endorsemento"PaymentoStoppedobyodrawer"ovideoreturnomemoodatedo07.10.2011.o Thereafter,o theo complainanto servedo ao legalo noticeo datedo 13.10.2011o upono theo respondent-accusedo ando wheno theo chequeo amounto waso noto paido withino theo prescribedoperiod,otheoafore-saidocomplaintowasofiled.oo

3.o o Inotheopreliminaryoevidence,otheopetitioner-complainantoexaminedo himselfoasoCW-1oandotenderedoaffidavitoEx.oCW1/A.oThereafter,otheorespondent-accusedowasosummonedotoofaceotrialoforotheooffenceounderoSectiono138oofotheoN.I.o Act,ovideoorderodatedo11.11.2011.o

4.o o NoticeoofoaccusationounderoSectiono138oofotheoN.I.oActowasoservedo upono theo respondent-accusedo video ordero datedo 22.05.2013,o too which,o theo respondent-accusedodidonotopleadoguiltyoandoclaimedotrial.o

5.o o Ino ordero too proveo hiso case,o theo petitioner-complainanto examinedo himselfoasoCW-1oandotenderedohisoaffidavitoEx.CW1/A.o

6.o o Upono closureo ofo evidenceo byo theo petitioner-complainant,o theo statemento ofo theo respondent-accusedo undero Sectiono 313o ofo theo Cr.P.Co waso authenticity of this order/judgment 2/10o o o recorded,o whereino allo theo incriminatingo materialo ono theo fileo waso puto too him,o whicho waso deniedo byo theo respondent-accused.o Theo respondent-accusedo hado deniedohisoliabilityotoopayoanythingotootheopetitioner-complainant.oHowever,onoo defenceoevidenceowasoled.o

7.o o Afteroconsideringoandoappreciatingotheoevidenceoavailableoonotheo file,otheotrialoCourtoconvictedotheorespondent-accusedoforoanooffenceopunishableo underoSectiono138oofotheoN.I.oActovideojudgmentoofoconvictionodatedo30.09.2013o ando video ao separateo ordero datedo 03.10.2013,o theo respondent-accusedo waso sentencedotooundergoorigorousoimprisonmentoforoaoperiodoofosevenodaysoandotoo payo compensationo too theo tuneo ofo chequeo amounto i.e.o Rs.75,000/-o too theo respondent-complainant.oo

8.o o Beingodis-satisfiedowithotheoafore-saidojudgmentoofoconvictionoando orderoofosentence,otheorespondent-accusedopreferredoanoappealobeforeotheoCourto ofoAdditionaloSessionsoJudge,oGurgaon,owhichocameotoobeoregisteredoasoCriminalo AppealoNo.73odatedo31.10.2013.oSimilarly,otheopetitioner-complainantoalsoofiledo anoappeal,oseekingoenhancementoofosentence,owhichocameotoobeoregisteredoaso CriminaloAppealoNo.40odatedo05.06.2014.o

9.o o Botho theo aforesaido CriminaloAppealso wereo heardo byo theo learnedo Additionalo Sessionso Judge,o Gurgaono ando cameo too beo decidedo video commono judgmento datedo 25.08.2014;o whereby,o theo appealo filedo byo theo petitioner/complainanto foro enhancemento ofo sentenceo waso dismissedo ando theo appealofiledobyotheorespondent-accusedocameotoobeoallowedoandotheojudgmentoofo convictiono ando ordero ofo sentenceo passedo byo theo trialo Courto againsto theo respondent-accusedowasosetoasideoandotheorespondent-accusedowasoacquitted.oo

10.o o Itoisoagainstothisojudgmentoofoacquittal,otheopresentorevisionopetitiono hasobeenopreferredobyotheopetitioner/complainant.o authenticity of this order/judgment 3/10o o o

11.o o Learnedo counselo foro theo petitioner/complainanto submitso thato theo learnedoloweroAppellateoCourtohasoerredoinolawoandofactsoinoallowingotheoappealo filedobyotheorespondent-accusedoandosettingoasideotheowelloreasonedojudgmentoofo convictionoandoorderoofosentenceopassedobyotheotrialoCourt.oLearnedocounseloforo theopetitionerosubmitsothatotheoloweroAppellateoCourtohasowronglyoacquittedotheo respondentoonoanountenableoreasonothatotheorespondent-accusedohadofurnishedotheo formo `H'o duringo theo pendencyo ofo theo complainto ando therefore,o ito haso beeno wronglyoheldothatotheorespondent-accusedohadonotocommittedoanyooffenceoundero Sectiono138oofotheoN.I.oAct.oAccordingly,oitoisoprayedothatotheoinstantopetitiono mayo beo acceptedo ando theo judgmento datedo 25.08.2014o passedo byo theo lowero AppellateoCourtomayobeosetoasideoandotheojudgmentoofoconvictionoandoorderoofo sentenceopassedobyotheotrialoCourtomayobeorestored.o

12.o o Onotheootherohand,olearnedocounseloforotheorespondentohasosupportedo theojudgmentopassedobyotheoloweroAppellateoCourtoandowhileoreferringotootheosaido judgmento ibid,o ito iso submittedo thato theo lowero Appellateo Courto haso correctlyo appreciatedotheofactsoasowelloasomaterialoonorecordoandohadorightlyoallowedotheo appealofiledobyotheorespondent-accusedoandoacquittedohim.o

13.o o Accordingly,o ito iso prayedo thato consideringo theo limitedo scopeo ofo revisionalo jurisdiction,o noo interferenceo iso requiredo ino theo judgmento datedo

25.08.2014opassedobyotheoloweroAppellateoCourtoandotheorevisionopetitionomayobeo dismissed.o

14.o o Io haveo heardo learnedo counselo foro theo partieso ando perusedo theooooooooooooooo paperobookowithotheiroableoassistance.o

15.o o ItoisowellosettledothatoscopeooforevisionalojurisdictionoofothisoCourtoiso quiteolimitedoandotheoCourtoisotoointerfereoonlyoifothereoisoanoillegalityooroinfirmityoo o authenticity of this order/judgment 4/10o o o apparent on the face of the judgment under challenge.

¶16Hon'ble Apex Court in Johar and others v. M/s Mangal Prasad and another, 2008(3) SCC 423 while dealing with the scope of revisional jurisdiction, has observed as under:- "17. The approach of the High Court to the entire case cannot be appreciated. The High Court should have kept in mind that while exercising its revisional jurisdiction under section 397 and 401 of the Code of Criminal Procedure, it exercises a limited power. Its jurisdiction to entertain a revision application, although is not barred, but severally restricted, particularly when it arises from a judgment of acquittal."

¶17The factum of powers of the revisional Court dealing with the revision against acquittal being extremely limited was reiterated by the Hon'ble Supreme Court in the case of K. Ramachandran v. V.N. Rajan & Anr. 2010(5) RCR (Criminal) 237, wherein it was held as under:- "This question has been considered in the celebrated judgment of AkaluAhir&Ors. v. Ramdeo Ram [(1973) 2 SCC 583], where, after considering the judgments of D. Stephens v. Nosibolla [1951 SCR 284], Logendranath Jha v. Polailal [1951 SCR 676], K.C. Reddy v. State of Andhra Pradesh [(1963) 3 SCR 412] and Mahendra Pratap Singh v. Sarju Singh [(1968) 2 SCR 287] this Court came out with categories of case which would justify the High Court in interfering with the finding of acquittal in revision: "(i) Where the trial Court has no jurisdiction to try the case, but has still acquitted the appellant-accused;

(ii) Where the Trial Court has wrongly shutout evidence which the prosecution wished to produce; authenticity of this order/judgment ?/10o o o

(iii) Where the appellate Court has wrongly held the evidence which was admitted by the Trial Court to be inadmissible;

(iv) Where the material evidence has been overlooked only (either) by the Trial Court or by the appellate Court; and

(v) Where the acquittal is based on the compounding of the offence which is invalid under the law." Of course, these categories were declared by this Court to be illustrative and this Court observed that other cases of similar nature could also be properly held to be exceptional in nature where the High Court could justifiably interfere with the order of acquittal. In this very judgment though in paragraph 10, this Court did not generally approve of the appreciation of evidence by the Trial Court Judge and held it to be not perfect or free from flaw and further observed "the Court of appeal may be justified in disagreeing with the conclusion, but it does not follow that on revision by a private complainant, the High Court is not entitled to reappreciate the evidence for itself as if it is acting as a Court of appeal and then order a re-trial."

¶18In the case of Hydru v. State of Kerala, {2004 (13) SCC 374}, the Hon'ble Supreme Court has held as under:- "3. From a bare perusal of the impugned order, it would appear that the High Court upon reappraisal came to a conclusion different from the one recorded by the appellate court. It is well settled that in revision against acquittal by a private party, the powers of the Revisional Court are very limited. It can interfere only if there is any procedural irregularity or material evidence has been overlooked or misread by the subordinate court. If upon reappraisal of evidence, two views are possible, it is not permissible even for the appellate court in appeal against authenticity of this order/judgment 6/10o o o acquittal to interfere with the same, much less in revision where the powers are much narrower. No procedural irregularity has been found by the High Court in the order of the Sessions Court whereby the appellant was acquitted. Therefore, we are of the view that the High Court was not justified in interfering with the order of acquittal in exercise of its revisional powers, as such the same is liable to be interfered with by this Court".

¶19In the case of Satyajit Banerjee v. State of West Bengal, 2005(1) RCR (Crl.) 723, the Apex Court laid down that revisional jurisdiction, at the instance of the complainant has to be exercised by the High Court only in very exceptional cases, where the interest of public justice requires interference for the correction of a manifest illegality or the prevention of gross miscarriage of justice.

¶20Considering the case in hand, the learned lower Appellate Court, after appreciating the entire evidence on record, while acquittingthe respondent, vide its judgment dated 25.08.2014, has returned the following findings :- "7. I have heard learned counsel for the parties and have gone through the record of the case.

¶8Learned counsel for the appellant-accused has argued that the complainant sold the machine against the bill Ex.C5 and the sale was against the Form H, however, for security the cheque no.152971 dated 16.9.2011 was issued but after a short period, the Form-H was given to the complainant and the complainant has submitted the same before the sale tax authority, therefore, in these circumstances there is no liability to pay anything to the complainant, hence in the said circumstances the appellant-accused is liable to be acquitted in the interest of justice.

¶9On the other hand, learned counsel for the respondent-complainant refuted the said contentions and authenticity of this order/judgment 7/10o o o argued that the accused issued the cheque Ex.C1 in discharge of his liability which was dishonoured by the banker of the appellant on account of stop payment, therefore, the accused has rightly been held guilty by the learned trial court and also requested to enhance the sentence.

¶10Keeping in view the arguments advanced by learned counsel for the parties and perusing the record of the case, it came into the notice of the court that there is no dispute with regard to the issuance of the cheque and dishonour of the same on account of stop payment. It is required to be seen whether the appellant is under obligation to make the payment to the tune of Rs.75,000/- or not. The document Ex.C5 speaks that the machine was sold in a sum of Rs.6,25,000/- and the amount has been paid. The said document also speaks that the sale was against Form-H. Undoubtedly, the appellant issued the cheque as security on account of non-furnishing of Form-H. There is nothing on record which may speak about this fact that on what date the Form H is required to be furnished by the accused. There is no written agreement or clause on the file. Complainant admitted this fact that he has received the Form H which has been submitted before the sale tax authority, however till date sale tax authority has not given any date. In brief, the liability of the appellant-accused to pay an amount of Rs.75,000/- if any is against government in the shape of VAT/tax. If the Form H was not furnished then in this eventuality, the appellant was under obligation to pay an amount of Rs.75,000/-. However, the said amount can be collected by the Government or by the purchaser and would liable to be deposited with the Government. The only question which has been raised and hotly contested by the parties is that the transaction was effected on

16.5.2011 while the Form H was given to the complainant authenticity of this order/judgment 8/10o o o on 28.2.2012. Anyhow, the Form-H has been furnished in the financial year of 1.4.2011 to 31.3.2012. Nothing has been decided by the sale tax authority till date. The liability of the accused if any is against the Sale Tax Authority and not against the respondent because he can give the Form H to the purchaser or can deposit the VAT with sale tax authority. Now there is no legal and enforceable liability against the complainant.

¶11As a result of the aforesaid discussion and keeping in view the facts and circumstances of the present case, the appeal titled as M/s Krystal Industries Vs. M/s Padia Export is dismissed. The appeal titled as VinodPadiaVs. RK Manuja is allowed. The impugned judgment and order of sentence are set aside and the appellant-accused VinodPadiais acquitted. Copy of this judgment be retained in connected criminal appeal no.40 of 5.6.2014 titled as M/s Krystal Industries Vs. M/s Padia Export. Lower court file along with a copy of this judgment be sent back and after due compliance file be consigned to record room."

¶21Keeping in view the legal position as indicated in foregoing paras, I do not find any illegality or infirmity with the impugned judgment/order, apparent on the face of the same, which may call for any interference by this Court, while exercising its revisional jurisdiction. There is nothing on the record to show that the Court below had exceeded its jurisdiction or refused to exercise jurisdiction, while passing the impugned judgment/order. The impugned judgment/order is certainly not perverse or having been passed in violation of settled principles of criminal jurisprudence. No procedural irregularity or illegality has been pointed out. Impugned judgment/order is based upon proper appraisal and appreciation of evidence and as per law. authenticity of this order/judgment 9/10o o o

¶22Therefore, there is no merit in the present criminal revision petition and the same stands dismissed accordingly.

¶23All pending application/s, if any, shall stand closed. o M !"#o2$,o2%23o o (HARSHoBUNGER)oo $urpreeto JUDGEo =hetherospeaCin$@reasoned:o Hes@Noo o =hetheroreporta-/e:o Hes@Noo o o o authenticity of this order/judgment 10/10o o