2018 (11) TMI 928 - HC - Indian Laws

Court Upholds Conviction Under Section 138: Importance of Evidence & Limited Revisionary Jurisdiction

Dalbir Singh Versus Rajinder Singh Prop. of M/s Gurjot Automobiles Chowkiwala

The High Court upheld the conviction and sentence of the petitioner under Section 138 of the Negotiable Instruments Act. The court emphasized the ... Dishonor of Cheque - cheque was issued by the petitioner under compromise - Section 138 of the Negotiable Instruments Act - Held that:- The revisionary jurisdiction of this Court under Section 397 Cr.P.C. is extremely limited and this Court would only interfere in case the petitioners have been convicted and sentenced without examining the material placed on record with a view to ascertain that the judgments so rendered by the learned Courts below are not perverse and are based on the correct appreciation of evidence on record. This Court would definitely interfere in case it comes to the conclusion that there is a failure of justice and misuse of judicial mechanism or procedure or where the sentence awarded is not correct. Maintainability of the complaint on the basis of the cheque presented for the second time, but within six months - Held that:- This issue is no longer res integra in view of three Hon’ble Judges’ bench decision of the Hon’ble Supreme Court in MSR Leathers versus S.Palaniappan and another, [2012 (10) TMI 232 - SUPREME COURT] wherein the earlier decision in Sadanandan Bhadran versus Madhavan Sunil Kumar, [1998 (8) TMI 541 - SUPREME COURT] was over-ruled and it was held that prosecution based upon second or successive dishonour of the cheques is also permissible so long as it satisfies the requirements stipulated in the proviso to Section 138 of the Negotiable Instruments Act. Petition dismissed. Issues:Conviction and sentence under Section 138 of the Negotiable Instruments Act; Perversity in findings by lower courts; Scope of revisionary jurisdiction under Section 397 Cr.P.C.; Maintainability of complaint based on second dishonour of cheque.Analysis:1. The petitioner was convicted and sentenced for an offence under Section 138 of the Negotiable Instruments Act. The petitioner challenged the conviction, arguing that the findings of the lower courts were perverse and relied on untrustworthy evidence. The petitioner also claimed that the cheque was issued under compromise and did not create a new liability. The High Court emphasized that it would only interfere if there was a failure of justice, misuse of judicial process, or incorrect sentencing. The court cited various Supreme Court judgments to define the scope of revisionary jurisdiction, highlighting that it should be exercised judiciously in exceptional cases of manifest error or miscarriage of justice.2. The complaint alleged that the petitioner purchased a tractor but failed to pay the amount, leading to a compromise where the petitioner issued a post-dated cheque. The cheque was dishonoured twice, and the respondent filed a complaint under Section 138 of the Act. The respondent's evidence was corroborated by documents, while the petitioner's defense was not substantiated. The court found no infirmity in the lower courts' judgments, as the petitioner failed to prove his defense.3. The petitioner relied on a Supreme Court judgment to argue that the cheque was issued under a settlement and not as a new liability. However, the court distinguished the facts of that case from the present case, where the petitioner had not been punished and no subsequent cheque was issued. The court dismissed the argument that no complaint was maintainable based on the second dishonour of the cheque, citing a Supreme Court decision that allowed prosecution for successive dishonours if it met the requirements of Section 138 of the Act.4. In conclusion, the High Court found no merit in the revision petition and dismissed it, along with any pending applications. The judgment highlighted the importance of evidence, the burden of proof, and the limited scope of revisionary jurisdiction in criminal cases.