1 S. No.92 Regular Cause List IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CM No. 1409/2025 In CM(M) No. 108/2025 Sheikh Shameem Prop. M/S Shameem Jewellers …Appellant/Petitioner(s) Through: Mr. Sajad Ahmad Dar, Advocate Vs. Mushtaq Ahmad Najar and Anr. ...Respondent(s) Through: Mr. Ibrahim Meray, Advocate CORAM: HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE O R D E R 05.05.2025 1. Challenge is thrown to the Order dated 18.12.2024, passed by 4th Additional District & Sessions Judge (Revisional Court) whereby revision petition titled as Sheikh Shameem v. Mushtaq Ahmad Najar and another, filed by petitioner against order dated 03.10.2024, passed by Special Mobile Magistrate (Railway Magistrate) Srinagar (Trial Court) rejecting petitioner’s application for bringing on record the certificate issued by the Bank and application seeking re-examination of Bank Manager, has been dismissed, in the instant petition on the grounds mentioned therein. 2. Heard and considered. 3. Negotiable Instrument Act, 1881, in India aims to provide a uniform legal framework for negotiable instruments like promissory notes, bills of exchange, and cheques, ensuring their smooth and legitimate transfer and use in financial transactions. It also aims to deter misuse 2 and ensure legal recourse for parties in case of dishonour or non- fulfillment of obligations related to these instruments. 4. Since Sections 138 and 142 of the Act were found deficient in dealing with dishonor of cheques, the Negotiable Instruments Act (Amendment and Miscellaneous Provisions) Act 2022, inter alia, amended Sections 138, 141 and 142 and inserted new Section 143 and 147 in the Act aimed at speedy disposal of cases relating to offence of dishonour of cheques through their summary trial as well as making them compoundable. 5. A complaint under Section 138 of Negotiable Instruments Act titled as Mushtaq Ahmad Najar and another vs. Sheikh Shameem Ahmad, came to be filed by respondents herein way back on 25.03.2019. Thereafter, petitioner-accused caused his appearance before Trial Court. Respondents’ evidence was closed on 18.02.2021. It was on 03.12.2021 that statement of petitioner-accused under Section 342 Cr.P.C. was recorded. After two years, i.e., on 14.11.2023, evidence of petitioner-accused came to be closed. Petitioner-accused came up with an application on 22.06.2022 for bringing on record the certificate issued by the Bank dated 06.04.2022. In addition to that, petitioner-accused also preferred an application seeking reexamination of the Branch Manager Nalamar. The said application was filed on 08.11.2022. Both these applications were objected by the complainants. The Trial Court considered both the applications, i.e., one to place on record certificate issued by the Bank and another one to permit reexamination of Bank Manager Nalamar, Srinagar, and observed that the ground on which the certificate was sought to be 3 placed on record did not corroborate with the contents of the certificate, therefore, rejected the same. Second application seeking reexamination of the Branch Manager was also rejected on the ground that contention raised in the application was that accused had brought on record a document of concerned bank which was vital for adjudication of the complaint and as such there was necessity to reexamine Branch Manager and so far as record pertained to the said document for which accused sought further cross-examination of Branch Manager had not been brought on record on the date of presentation of such application. 6. Aggrieved of Trial Court order, petitioners preferred revision petition. The Revisional Court also rejected the revision petition, by holding that it is well settled law that object of provisions of revision is to set right a patent defect or error or jurisdiction of law. The revisional jurisdiction of the Court under Section 397 Cr.P.C. can be exercised where there is an error of non-compliance with the provisions of law and the decision is completely erroneous. The Revisional Court has also observed that the application seeking permission to place on record the certificate along with the video clip should have been placed on record by the petitioner-accused at the first instance when he appeared before the Trial Court but he failed to do so and that he was leading defence evidence, nothing had prevented him to provide the same by way of defence evidence. The Trial Court also observed that reexamination of Branch Manager in view of certificate issued by bank was not relevant because he was not authority of said certificate, besides Branch Manager had been cross-examined at length by the 4 counsel and that the said person is not posted in the said branch and record is not in his control and supervision. and accordingly rejected the revision petition. 7. As is apparent from perusal of the record on file, including impugned order, that petitioner-accused had got his statements recorded under Section 242 Cr.P.C. and 342 Cr.P.C. Petitioner-accused was given time to lead additional evidence subject to payments of costs of Rs.300/-. There is, on the face of it, delay in filing applications by petitioner-accused which has only protracted the matter The summary proceedings under Section 138 of the Act are pending before the Trial Court for last five years. Such delay in conclusion of summary proceedings under Section 138 of the Act defeats the very purpose of the Act. 8. The Revisional Court has rightly opined that all that has been said and stated by petitioner-accused vis-à-vis production of documents and reexamination of Manager could have been urged by him the moment he caused his appearance before the Trial Court but he remained calm and quiet for next two years. Trial Court has correctly said that what prevented petitioner-accused to file application for production of documents etc. is not coming forth from the said application. 9. It may not be out of place to mention here that judicial pronouncements concerning object and scope of power of the High Courts under Article 227 of the Constitution of India leaves little scope to interfere with the orders of subordinate courts as a matter of routine. This power cannot be taken as right of another appeal to aggrieved party nor this power can be invoked to point out an error of 5 law or fact in the order or decision of a subordinate court. This power cannot be used to make out that the decision of subordinate court could have been or must have been other than what it was. Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping subordinate courts within the bounds of their jurisdiction. When subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. Be it a writ of certiorari or exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the requirements that the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and that a grave injustice or gross failure of justice has occasioned thereby, are satisfied. 10. It is well-settled that power of superintendence, so conferred on the High Court, is administrative as well as judicial and is capable of being invoked at the instance of any person aggrieved or may even be exercised suo motu. The paramount consideration behind vesting such wide power of superintendence in High Court is paving path of justice and removing any obstacles therein. Power under Article 227 is wider than the one conferred on the High Court by Article 226 of the Constitution of India, in the sense that the power of superintendence is not subject to those technicalities of procedure or traditional fetters 6 which are to be found in certiorari jurisdiction. Else parameters invoking exercise of power are almost similar. 11. The power under Article 227 is one of judicial superintendence that cannot be used to upset conclusions of facts, howsoever erroneous those may be, unless such conclusions are so perverse or so unreasonable that no court could ever have reached them. Way back in 1954, a Constitution Bench of the Supreme Court, in Waryam Singh v. Amarnath, AIR 1954 SC 215, has pointed out that the power of superintendence conferred by Article 227 should be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors. The Supreme Court in Dr. R. Venkatchalam and others etc. v. Dy. Transport Commissioner and others etc., AIR 1977 SC 842, has said that the Courts must avoid the danger of a priori determination of the meaning of a provision based on their own pre-conceived notions of the ideological structure or the scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp legislative function under disguise of interpretation. While interpreting a provision the Court only interprets law and cannot legislate it. If a provision of law is misused and subjected to abuse of process of law, it is for legislature to amend, modify or repeal it, if deemed necessary. 12. Article 227 can be invoked by the High Court suo motu as a custodian of justice. An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality. The power is discretionary and has to be 7 exercised very sparingly on equitable principle. This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in administration in larger public interest whereas Article 226 is meant for protection of individual grievances. Therefore, “the power under Article 227 may be unfettered but”, as held by the Supreme Court in the case of Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329, “its exercise is subject to high degree of judicial discipline.” The object of superintendence under Article 227, both administrative and judicial, is to maintain the efficiency, smooth and orderly functioning of the entire machinery of the justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of the justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. The Supreme Court in Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar Hydrabad and another v. Ajit Prasad Tarway Manager (Purchase & Store) Hindustan Aeronautics Ltd. Balanagar Hydrabad, AIR 1973 SC 76; and Kokkanda B. Poondacha & Ors. v. K. D. Ganapathi & another, AIR 2011 SC 1353, after recapitulating what has been observed in Shalini Shyam Shetty’s case (supra) qua Article 227, held that “learned Single Judge of the High Court totally ignored the principles and parameters laid down” by the Supreme Court “for exercise of power under Articles 226 and 227 of the 8 Constitution qua an interlocutory order passed by the Subordinate Court and set aside the order of the trial Court without assigning any tangible reason.” Jurisdiction under Article 227 must be sparingly exercised and may be exercised to correct the errors of the jurisdiction and the like, but not to upset the findings of the fact, which falls in the domain of an appellate court only. Same is true about the present case. The petition on hand is, from the above discussion, an appeal under the attire of petition under Section 104 of the Constitution of the Jammu and Kashmir. My above views are fortified by the fiats rendered in Nibaran v. Mahendra AIR 1963 SC 1895; D.N.Banerjee v. Mukherjee AIR 1953; SC 58; Nizzar Rawther v. Varghese Mathew AIR 1992 Ker 312; and Khimji Vidhu v. Premier High School AIR 2000 SC 3495. 13. It is apt to mention here that the power under Article 227 is broader than that conferred on the High Court by Article 226. For example, through its power to issue certiorari under Article 226, a High Court can annul the decision of a tribunal while under Article 227 it can do that and do something—it can issue further directions in the matter. But under Article 227, the High Court does not sit as a Court of appeal inasmuch as it is also not permissible to a High Court on a petition filed under Article 227 to review or reweigh the evidence upon which the inferior Court or tribunal purports to have passed the order or to correct errors of law in the decision. The power of superintendent conferred by Article 227 is supervisory and not appellate jurisdiction. 9 14. As per settled proposition of law laid down by the Supreme Court in The Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar, Hyderabad (supra) Mohd. Yunus (supra) and Kokkanda B. Poondacha (supra) that if any order is passed by subordinate court under its vested discretionary jurisdiction, then the same could not be interfered with by the High Court either under revisional jurisdiction under Section 115 of CPC or under supervisory jurisdiction vested under Article 227 of the Constitution of India. If an order is amenable to challenge before appellate authority, writ petition is not proper remedy without first filing appeal and getting the same decided by the appellate court on its merit in accordance with law. In other words, the High Court should decline to entertain writ petition under Article 227 on the ground of an alternative remedy of appeal. While saying this, the Supreme Court in Hameed Kunju v. Nazim (2017) 8 SCC 611, has held that there was no reason muchless justifiable one for the High Court to have entertain writ petition under Article 227 against the order passed by Trial Court. 15. From the foregoing discussion and settled legal position, it is derivable that instant petition does not call for any interference. The powers, vested in this Court under Article 227 of the Constitution are neither substitution to revisional nor appellate power, inasmuch as orders impugned are neither perverse nor have occasioned serious miscarriage of justice. Any interference by this Court would only prolong the summary proceedings inordinately. Even otherwise, impugned orders do not warrant interference by exercise of extraordinary or supervisory jurisdiction of this Court, in that neither 10 the decision-making process of learned courts below suffers from any bias nor do impugned orders cause any miscarriage of justice or otherwise suffer from any error of law. 16. In the background of preceding discourse, the petition on hand is devoid of any merit and as a corollary, the same is dismissed, with connected IA(s). Interim direction, if any, shall stand vacated. (VINOD CHATTERJI KOUL) JUDGE SRINAGAR 05.05.2025 Shabroz