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TMI Blog2022 (11) TMI 852X X X X Extracts X X X X X X X X Extracts X X X X ..... ce in the present case, this Court is unable to find any error of law as well as of fact, if any, committed by the courts below while passing impugned judgments, and as such, there is no occasion, whatsoever, to exercise the revisional power. The present revision petition is dismissed being devoid of any merit and judgments passed by learned courts below are upheld. - CRIMINAL REVISION No. 332 OF 2021 - - - Dated:- 10-11-2022 - HON BLE MR. JUSTICE SANDEEP SHARMA FOR THE PETITIONER : BY MR. SUMIT HIMALVI , ADVOCATE FOR THE RESPONDENT : MR. K. B. KHAJURIA , ADVOCATE ORDER Instant Criminal Revision petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure, is directed against the judgment, dated 28.09.2021 passed by learned Additional Sessions Judge(II), Shimla, District Shimla, H.P., in Criminal Appeal No. 23-R/10 of 2018, affirming the judgment of conviction dated 1.10.2018 and order of sentence dated 25.10.2018, passed by learned Additional Chief Judicial Magistrate, Court No.1, Rohru, District Shimla, H.P., in Criminal case No.116-3 of 2016, titled as Trilok Chand versus Sh. Naresh Kumar, whereby learned trial Court whil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atisfaction of trial Court. However, fact remains that aforesaid order never came to be complied with. This Court repeatedly adjourned the matter on the request of the petitioner, enabling him to deposit the amount, but today during the proceedings of the case learned counsel for the petitioner submitted that since petitioner has not come forward to impart instructions and he is not responding to his written communication, this Court may decide the case at hand on the basis of the material already available on record. 6. Having heard learned counsel representing the parties and perused the material available on record vis-a- vis reasoning assigned in the impugned judgments, this Court finds it difficult to agree with the submission of learned counsel for the petitioner-accused that judgments passed by learned courts below are not based upon the proper appreciation of facts as well as evidence led on record, rather this court finds that both the courts below have very meticulously dealt with each and every aspect of the matter and there is no scope of interference, whatsoever in the present matter. 7. Interestingly, in the case at hand, petitioner-accused despite having been a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to raise a defence that cheque in question was actually issued to a person namely Vicky, but such person never came to be examined and as such, factum with regard to issuance of cheque as well as signature thereupon stands duly admitted, if it is so, presumption as available under Section 118 and 139 of the Act rightly came into play. 9. Though, in the case at hand, opportunity to lead evidence in defence was afforded to the accused, but he failed to avail the same. However, in his statement recorded under Section 313 Cr.P.C, though he made an attempt to deny the case of the complainant, but as has been taken note hereinabove, he never disputed factum with regard to issuance of cheque, rather by putting suggestion to the complainant that cheque in question was issued to a person namely Vicky R/o Nerwa, he virtually admitted factum with regard to his having singed the cheque. Since above named Vicky never came to be examined, both the courts below rightly ignored aforesaid stand/defence set up by the accused. 10. The Hon ble Apex Court in M/s Laxmi Dyechem V. State of Gujarat, 2013(1) RCR(Criminal), has categorically held that if the accused is able to establish a probable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statutory presumption under Section 139 of the NI Act regarding commission of the offence comes into play if the same is not rebutted with regard to the materials submitted by the complainant. 25. It is no doubt true that the dishonour of cheques in order to qualify for prosecution under Section 138 of the NI Act precedes a statutory notice where the drawer is called upon by allowing him to avail the opportunity to arrange the payment of the amount covered by the cheque and it is only when the drawer despite the receipt of such a notice and despite the opportunity to make the payment within the time stipulated under the statute does not pay the amount, that the said default would be considered a dishonour constituting an offence, hence punishable. But even in such cases, the question whether or not there was lawfully recoverable debt or liability for discharge whereof the cheque was issued, would be a matter that the trial court will have to examine having regard to the evidence adduced before it keeping in view the statutory presumption that unless rebutted, the cheque is presumed to have been issued for a valid consideration. In view of this the responsibility of the trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of fact, if any, committed by the courts below while passing impugned judgments, and as such, there is no occasion, whatsoever, to exercise the revisional power. 13. True it is that the Hon ble Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court Case 241; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order, but learned counsel representing the accused has failed to point out any material irregularity committed by the courts below while appreciating the evidence and as such, this Court sees no reason to interfere with the well reasoned judgments passed by the courts below. 14. Consequently, the present revision petition is dismissed being devoid of any merit and judgments passed by learned courts below are upheld. The petitioner is directed to surrender himself before the learned trial Court forthwith to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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