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TMI Blog2021 (3) TMI 286X X X X Extracts X X X X X X X X Extracts X X X X ..... nsation imposed on the petitioner. The petitioner has abused the indulgence granted by this Court. On 01.11.2019, the petitioner undertook to pay the amount of compensation in 4 instalments. He has gone back on the undertaking given to this Court which amounts to contempt. The petitioner is therefore not entitled to any indulgence from this Court. The revision petition is dismissed - CRL.REV.P. 882/2018 & CRL.M.(BAIL) 1612/2018 CRL.M.A. 11794/2019 & CRL.M.A. 2798/2020 - - - Dated:- 8-3-2021 - HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD Petitioner Through: Mr. Yash Karan Jain, Advocate Respondents Through : Ms. Kusum Dhalla, APP for the State. Mr. Divyakant Lahoti with Mr. Parikshit Ahuja, Advocates SUBRAMONIUM PRASAD, J. 1. This revision petition under Section 397 Cr.P.C is directed against the judgment and order dated 09.03.2018 passed by the Additional Session Judge, Karkardooma Courts, New Delhi, in CRL. Appeal No.194/2017. The Additional Session Judge by the impugned judgment affirmed the order dated 29.06.2017, passed by the Additional Chief Metropolitan Magistrate, East, Karkardooma Court, Delhi, convicting the petitioner for an offence under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent No.2. The cheque was returned as dishonoured with the remarks funds insufficient . A Legal notice as contemplated under Section 138 of NI Act was sent to the petitioner on 20.08.2013 which returned back with the report left without address . b) A complaint being C.C. No. 934/13/15 under Section 138 N.I. Act was instituted against the petitioner on 04.10.2013, in the Court of Chief Metropolitan Magistrate, (District East) Karkardooma Courts, Delhi. c) The petitioner took a defence that he did not take any loan of ₹ 1,00,000/- from the respondent No.2. He also stated that a blank cheque had been given by him to one Mahesh from whom the petitioner had taken loan. It is stated that the said Mahesh has given the cheque to the complainant which has been misused. d) Mahesh was examined as DW-2 and in his cross examination he stated that the cheque in question had never been given to him by the accused/petitioner herein. e) The petitioner stated that he did not receive the notice under Section 138 NI Act and therefore the complaint ought to be dismissed. f) The learned Metropolitan Magistrate by the judgement dated 29.06.2017 held that the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 555 and held that even assuming that the legal notice was not served on the petitioner herein, the service of the summons of the complaint can be treated as service of notice to the appellant/petitioner herein and the accused ought to have made the payment in time as stipulated under the N.I. Act. The Additional Session Judge upheld the compensation and sentence imposed on the petitioner. 6. It is this order which is under challenge in the present petition. 7. Mr. Yash Karan Jain, learned counsel for the petitioner contends that the petitioner had not given the cheque to the complainant/respondent No.2 herein and the cheque has been misused to frame him. He states that a perusal of the bank statement would show that the complainant has shown only two transaction in his bank statement, the first transaction dated 27.12.2010, is for an amount of ₹ 49,500/- and the second transaction dated 28.01.2011, is for an amount of ₹ 30,000/- and the total amount comes to ₹ 79,500/- then how is it possible that the petitioner has given a cheque of ₹ 1,00,000/- to the complainant. He states that this shows that the version of the complainant/respondent No.2 that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part, of any debt or other liability. 10. No doubt the presumption is rebuttable. To rebut the presumption the petitioner has raised two fold contentions. The first contention he has raised is that he gave a cheque to one Mahesh Kumar and that the said Mahesh Kumar has misused the cheque by giving it to the complainant, who filled the cheque. The contention that the cheque has been given to Mahesh Kumar, who was examined as DW-2, is not acceptable as he deposed against the petitioner. Mahesh Kumar in his cross-examination has stated as under: It is correct that the cheque in question had never been handed over to me by Sh. Prahlad Singh The first contention therefore cannot be accepted. 11. The second contention raised by the petitioner to rebut the presumption is that the bank statement given by the complainant does not substantiate the case of the complainant that ₹ 1,00,000/- has been given by him to the accused as loan. A perusal of the judgements of two courts below does not indicate that this issue was ever raised by the petitioner before the subordinate Courts. Mr. Divyakant Lahoti, learned counsel for the respondent No.2/complainant states that the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the GC Act and Section 114 of the Evidence Act..... Therefore the finding of the Court below that the Notice has been sent to the correct address cannot be found fault with. 15. The Supreme Court has time and again examined the scope of Section 397/401 of Cr.P.C and the ground for exercising the revisional jurisdiction by the High Courts. 16. In State of Kerala v. Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC 452 , the Supreme Court observed as under: 5. Having examined the impugned judgment of the High Court and bearing in mind the contentions raised by the learned counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction. 17. There is no perversity in the orders of the Courts below warranting interference by this Court under Section 397/401 Cr.P.C. 18. Power to grant compensation has been provided under Section 357(3) Cr.P.C. Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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