TaxTMI 
TaxTMI 
2025 (8) TMI 1337
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....n are that the complainant filed a complaint before the learned Trial Court against the accused for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (NI Act). It was asserted that the complainant is the sole proprietor of M/s Mahaluxmi Jewellers, Lower Bazaar, Shimla. The accused purchased jewellery worth Rs.5,51,913/- from the complainant vide Voucher No. 5816, dated 15.4.2015. The accused paid Rs.51,000/- in cash and issued a post-dated cheque of Rs.5.00 lacs. The complainant presented the cheque to her bank, but it was dishonoured with the remark 'funds insufficient'. The complainant served a legal notice upon the accused asking her to repay the amount within 15 days from the date of the receipt of the notice. The accused failed to repay any money; hence, the complaint was filed before the learned Trial Court for taking action as per law. 3. The learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, a notice of accusation was put to her for the commission of an offence punishable under Section 138 of the NI Act, to which she pleaded not guilty and claimed to be tried. 4. The complainant exam....
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....e statement of the complainant. The cheque was issued as a security and not in discharge of the legal liability. The benefit of the Probation of Offenders Act was not granted to the accused. The cash memo was issued by Goel's Mahaluxmi Jewellers, whereas the complaint was filed by M/s Mahalaxmi Jewellers through its proprietor. The accused has no subsisting liability towards the complainant. Hence, it was prayed that the present revision be allowed and the judgment and order passed by the learned Courts below be set aside. 9. I have heard M/s Sunil Awasthi, Ashish Verma and Hem Raj Thakur, learned counsel for the petitioner/accused, Mr. Anuj Gupta, learned counsel for respondent No.1 and Mr. Tarun Pathak, learned Advocate General, for respondent No.2-State. 10. Mr. Sunil Awasthi, learned counsel for the petitioner/accused, submitted that the learned Courts below failed to appreciate that the bill was issued by Goel's Mahaluxmi Jewellers, whereas the cheque was issued in the name of Mahalaxmi Jewellers. There is no evidence that Goel's Mahaluxmi and Mahalaxmi Jewellers are the same entities. The accused had no liability towards Mahalaxmi Jewellers as per the case of the compla....
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....ourt. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error which is to be determined on the merits of individual cases. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings. 14. This position was reiterated in State of Gujarat v. Dilipsinh Kishorsinh Rao, (2023) 17 SCC 688: 2023 SCC OnLine SC 1294, wherein it was observed at page 695: 14. The power and jurisdiction of the Higher Court under Section 397CrPC, which vests the court with the power to call for and examine records of an inferior court, is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in such proceedings. 15. It would be apposite to refer to the judgment of this Court in Amit Kapoor v. Ramesh Chander [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460: (2012) 4 SCC (Civ) 687: (2013) 1 SCC (Cri) 986], where scope of....
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....82-83, para 27) "27. Having discussed the scope of jurisdiction under these two provisions, i.e., Section 397 and Section 482 of the Code, and the fine line of jurisdictional distinction, it will now be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but inherently impossible to state such principles with precision. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be: 27.1. Though there are no limits to the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly the charge framed in terms of Section 228 of the Code, should be exercised very sparingly and with circumspection, and that too in the rarest of rare cases. 27.2. The Court sh....
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....tion or law or the perversity which has crept in such proceedings. 15. It would be apposite to refer to the judgment of this Court in Amit Kapoor v. Ramesh Chander [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460: (2012) 4 SCC (Civ) 687: (2013) 1 SCC (Cri) 986], where scope of Section 397 has been considered and succinctly explained as under: (SCC p. 475, paras 12-13) "12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error, and it may not be appropriate for the court to scrutinise the orders, which, upon the face of it, bear a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no eviden....
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.... to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly the charge framed in terms of Section 228 of the Code, should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion, and where the basic ingredients of a criminal offence are not satisfied, then the Court may interfere. 27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in a conviction or not at the stage of framing of charge or quashing of charge. *** 27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the....
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....the Magistrate as well as the Sessions Judge in appeal unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to a gross miscarriage of justice. On scrutinising the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation in concluding that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence. ..." 13. Another judgment which has also been referred to and relied on by the High Court is the judgment of this Court in Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke [Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke, (2015) 3 SCC 123: (2015) 2 SCC (Cri) 19]. This Court held that the High Court, in the exercise of revisional jurisdiction, shall not interfere with the order of the Magistrate unless it is perverse or wholly unreasonable or there is non-consideration of any relevant material, the order cannot be set aside merely on the ground that another view is possible. The following has been laid down in para 14: (SCC p. 135) "14. ... Unless the order passed by the Magistrate is perverse or the view taken....
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....be decided as per the parameters laid down by the Hon'ble Supreme Court. 19. Karan Goel (CW1) stated that he is running a shop at 191/1, Lower Bazar, Shimla, in the name of M/s Mahalaxmi Jewellers. Usha Goel is its proprietor. He proved the Special Power of Attorney (Ex.CW1/A) executed by Usha Goal, Proprietor of M/s Mahalaxmi Jewellers, Shop No. 191/9, Lower Bazar, Shimla, in his favour. He also proved a certificate of registration issued in the name of Ms. Usha Goel in the name and style of M/s Mahalaxmi Jewellers, 191/9, Lower Bazar, Shimla. Thus, it is apparent that Ms. Usha Goel is the proprietor of Mahalaxmi Jewellers. 20. Karan Goel (CW1) stated that the accused purchased the jewellery worth Rs. 5,51,973/- in the year 2015. A cash credit memo/voucher (Ex. CW1/C) was prepared regarding this transaction. The cash credit memo (Ex.CW1/C) has been issued in the name of Goel's Mahaluxmi Jewellers, 191/9, Lower Bazar, Shimla-171001. Thus, it is apparent from the bare perusal of the cash credit memo that it has not been issued in the name of Mahalaxmi Jeweller, owned by complainant Mrs. Usha Goel. 21. The Cash Credit Memo mentions the licence No.GS/SML/88, dated 4.1.1988, w....
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....uable consideration. There can be no dispute with the proposition of law that when the issuance of the cheque is not disputed, a presumption would arise that the cheque was issued in discharge of the legal liability. However, the presumption is rebuttable. When the evidence of the complainant itself shows that the liability was towards Goel's Mahaluxmi Jewellers, having a different licence number, a cheque issued in the name of Mahalaxmi Jewellers owned by the complainant cannot be said to be in the discharge of the legal liability. 25. It was submitted that no plea was taken before the learned Trial Court or the learned Appellate Court, that the Mahalaxmi Jewellers and Goel's Mahaluxmi Jewellers are two distinct entities. This submission is not acceptable. It was stated by Karan Goel (CW1) that the bill book was in the name of Goel's Mahaluxmi Jewellers, and the liability towards Mahalaxmi Jewellers was specifically disputed. Further, the existence of the legally enforceable debt is a jurisdictional fact and can be assailed in the revision. The cheque has to be issued in discharge of the legal liability before a person can be convicted of the commission of an offence punishable....