THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Revision No.320 of 2024

Date of Decision: 26.02.2026

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Jagjiwan Singh …….Petitioner

Versus

M/s Saini Traders & another … Respondents

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Coram:

Hon’ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting?

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For the Petitioner : Mr. Kulwant Chauhan, Advocate.

For the Respondents : Mr. Munish Dhatwalia, Advocate, for

respondent No.1.

Mr. Rajan Kahol & Mr. Vishal Panwar,

Additional Advocate Generals with Mr.

Ravi Chauhan & Mr. Anish Banshtu,

Deputy Advocates General, for

respondent No.2/State.

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Sandeep Sharma, Judge(oral):

Instant Criminal Revision petition filed under Section 397

read with Section 401 of the Code of Criminal Procedure, lays

challenge to judgment dated 02.05.2024 passed by learned Sessions

Judge, Mandi, District Mandi, Himachal Pradesh in Criminal Appeal

No.108 of 2023, affirming the judgment of conviction and order of

sentence dated 29.11.2023/02.12.2023 passed by learned Judicial

Magistrate, First Class, Court No.2, Mandi, District Mandi, Himachal

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Whether the reporters of the local papers may be allowed to see the judgment?

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Pradesh, in Criminal case No. 07 of 2016, whereby learned trial

Court, while holding petitioner-accused ( for short ‘accused’) guilty

of having committed an offence punishable under Section 138 of the

Negotiable Instruments Act(for short ‘Act’), convicted and sentenced

him to undergo simple imprisonment for a period of one year and pay

compensation to the tune of Rs.3,25,000/- to the respondent-

complainant.

2. Precisely, the facts of the case, as emerge from the

pleadings as well as other documents adduced on record by the

respective parties, are that respondent No.1-complainant (for short

‘complainant’) filed a complaint under Section 138 of the Act in the

competent Court of law, alleging therein that accused, with a view to

discharge legally enforceable debt, issued cheque No.312557, dated

01.05.2013, amounting to Rs. 2,00,000/- from his account

No.0580000105028825 drawn from Punjab National Bank, Chail-

Chowk Branch, District Mandi, Himachal Pradesh in his favour.

However, aforesaid cheque on its presentation in the bank concerned

was returned unpaid vide memo dated 26.07.2013 with the remarks

‘funds insufficient’. The bank concerned informed the factum with

regard to dishonor of cheque to the complainant vide memo dated

07.08.2013 and thereafter, the complainant issued legal notice dated

20.08.2013 vide registered post against acknowledgement for making

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the payment within 15 days from the receipt of legal notice. Though,

accused received the legal notice on 22.08.2013, but since he failed

to make the payment good within stipulated time, complainant had no

option, but to initiate proceedings under Section 138 of the Act in the

competent Court of law, which subsequently, on the basis of evidence

adduced on record by the respective parties, held the accused guilty

of having committed offence punishable under S. 138 of the Act and

accordingly, convicted and sentenced him as per description given

herein above.

3. Being aggrieved and dissatisfied with the aforesaid

judgment of conviction and order of sentence recorded by learned trial

Court, present petitioner-accused preferred an appeal in the Court of

learned Sessions Judge, Mandi, District Mandi, Himachal Pradesh,

but same also came to be dismissed vide judgment dated 02.05.2024.

In the aforesaid background, petitioner-accused has approached this

Court in the instant proceedings, praying therein for his acquittal after

quashing and setting aside the impugned judgment of conviction and

order of sentence recorded by Courts below.

4. Vide order dated 30.05.2024, this Court suspended the

substantive sentence imposed by Court below, subject to petitioner-

accused depositing 30% of the compensation amount and furnishing

personal bonds in the sum of Rs. 40,000/- with one surety in the like

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amount to the satisfaction of learned trial Court within a period of four

weeks. However, fact remains that aforesaid order was not complied

with. Court file reveals that as many as nine opportunities were

granted to the petitioner to comply with the aforesaid order, but in

vain. Learned counsel representing the petitioner fairly states that

since petitioner is not coming forward to comply with the order passed

by this Court, this Court may proceed to decide the case at hand on

its own merit.

5. Precisely, the case of the petitioner as has been

highlighted in the petition and further canvassed by Mr. Kulwant

Chauhan, learned counsel representing the petitioner, is that learned

Court below has not properly appreciated the pleadings as well as

evidence adduced on record and has wrongly convicted and

sentenced the accused under Section 138 of the Act. While making

this Court peruse evidence led on record by the accused, learned

counsel representing the petitioner-accused vehemently argued that

complainant was unable to prove, beyond reasonable doubt, that

cheque in question was ever issued by petitioner-accused towards

discharge of his lawful liability. While referring to cross-examination of

the accused, learned counsel for the petitioner submitted that he

himself admitted that he did not fill up the cheque in question and at

no point of time description, if any, with regard to transaction qua

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which the cheque was issued, has been given in the complaint. While

referring to the statement of the accused recorded under Section 313

Cr.P.C, learned counsel for the petitioner argued that there is no

specific admission with regard to the issuance of cheque as well as

signatures thereupon and as such, Court below has wrongly drawn

presumption under Section 139 of the Act.

6. To the contrary, learned counsel representing the

respondent-Complainant supported the impugned judgment passed

by Courts below. He submitted that petitioner has not only admitted

factum with regard to issuance of cheque, but has also admitted

signature upon the same. While referring to para-2 of the grounds of

appeal preferred by the accused before the learned Sessions Judge,

Mandi, learned counsel representing the respondent-complainant

argued that complainant himself, in his cross-examination, admitted

that the cheque in question has been issued by the accused as a

security. He submitted that since a specific suggestion was put on

behalf of the accused to the complainant that cheque in question was

issued as a security, he has virtually admitted factum of issuance of

the cheque. He further submitted that no evidence, worth credence,

ever came to be led on record with regard to cheque, if any, issued as

a security.

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7. Having heard learned counsel representing the parties

and perused material available on record, this Court finds that

complainant with a view to prove contents of his complaint, examined

himself as CW-1 and tendered his evidence by way of affidavit Ex.

CW1/A, specifically reiterating therein the averments contained in the

complaint. He also successfully proved on record certificate Ex.

CW1/B issued by Excise and Taxation Officer, certifying that

complainant is a registered dealer under HP VAT Act, 2005, as per

certificate Ex. CW1/C issued by Punjab National Bank, certifying that

M/s. Saini Traders is availing a cash credit limit from the said bank,

certificate Ex. CW1/D with regard to registration of complainant firm

under Department of Excise and Taxation, certificate Ex. CW1/E is

relating to Sales Tax, cheque No.312557 dated 01.05.2013,

amounting Rs. 2, 00,000/- drawn from Punjab National Bank, Chail-

Chowk, Mandi, Himachal Pradesh, Ex. CW1/F, receipt Ex. CW1/G of

depositing of the cheque in the bank, memo dated 07.08.2013 Ex.

CW1/H and memo dated Ex. CW1/J, whereby factum with regard to

dishonour of the cheque was conveyed to the complainant. He also

successfully proved on record factum with regard to his having served

legal notice dated 20.08.2013 Ex. CW1/K and its service upon the

accused vide postal receipt dated 20.08.2013, Ex. CW1/L and

acknowledgement Ex. CW1/M.

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8. If the cross-examination conducted upon this witness is

perused minutely, it nowhere suggests that accused was able to

extract anything contrary to what this witness stated in his

examination-in-chief. Though, complainant admitted that he had not

annexed the bill book and copy of ledger alongwith complaint, but he

categorically stated factum with regard to issuance of cheque by the

accused towards discharge of his lawful liability. Though, he admitted

that the date on cheque Ex. CW1/F was written with different ink, but

he nowhere denied factum with regard to his having received cheque

towards discharge of legal liability. He admitted that there is

overwriting of figure “zero” written in date column of cheque

Ex.CW1/F, but at no point of time, suggestion ever came to be put to

the complainant with regard to loan, if any, not advanced by him to

the accused. No suggestion, worth the name, ever came to be put

with regard to issuance of cheque, rather accused by putting a

suggestion with regard to interpolation and difference in writing and

overwriting “zero” on the cheque concerned, virtually admitted factum

with regard to issuance of cheque.

9. Accused, in his statement recorded under Section 313

Cr.P.C, though stated that he had no liability towards the complainant

and he does not know that Dinesh is the proprietor of M/s Saini

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Traders, but nowhere denied factum with regard to his having issued

the cheque. He simply stated that cheque does not bear his signature,

but ultimately he failed to prove such fact by leading cogent and

convincing evidence despite his having been afforded adequate

opportunities to lead the evidence in defence.

10. Factum with regard to issuance of cheque as well as its

presentation in the bank concerned stands duly proved on record.

Similarly, return memo dated 07.08.2013, Ex. CW1/H, clearly reveals

that cheque in question was dishonoured on account of insufficient

fund and same was returned to the complainant. Legal notice

(Ex.CW1/K) dated 20.08.2013 sent to the accused, reveals that at first

instance, accused was called upon to make the payment good, but

once he failed to do the same within thirty days of the receipt of

information by complainant, complainant had no option, but to institute

proceedings under Section 138 of the Act. To initiate proceedings

under Section 138 of the Act, the first condition is with regard to

presentation of the cheque within the period of its validity, and second

condition is with regard to issuance of legal notice, thereby calling

upon the person concerned to make the payment good within

stipulated time. Since payment qua cheque Ex. CW1/F was not made,

the third condition that drawer of each cheque failed to make the

payment of the said amount to the payee within stipulated time also

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came to be complied with. Next issue is with regard to ‘debt or other

liability’ i.e. legally enforceable debt or other liability. The rebuttable

presumption is in favour of holder of the cheque that cheque is issued

to him for debt or liability.

11. In the instant case, at no point of time, factum with

regard to issuance of cheque as well as signatures thereupon came

to be refuted by the petitioner. Accused in his statement recorded

under Section 313 Cr.P.C, though denied the case of the complainant

in toto and claimed that cheque was issued as a security, but to

probablize aforesaid defence, no evidence, worth credence, ever

came to be led on record despite sufficient opportunities. Once factum

with regard to issuance of cheque as well as signatures thereupon

never came to be disputed, no illegality can be said to have been

committed by Courts below, while invoking Sections 118 and 139 of

the Act, which speak about presumption in favour of the holder of the

cheque that cheque was issued towards discharge of lawful liability.

No doubt, aforesaid presumption is rebuttable, but to rebut such

presumption, accused either can refer to the documents and evidence

led on record by the complainant or presumption can be rebutted by

leading positive evidence, if any. However, in the instant case, despite

sufficient opportunities, petitioner-accused failed to lead any evidence

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and as such, he otherwise failed to probablize the defence, sought to

be raised by him, while deposing under Section 313 Cr.P.C.

12. 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 defence which creates

doubt about the existence of a legally enforceable debt or liability, the

prosecution can fail. To raise probable defence, accused can rely on

the materials submitted by the complainant. Needless to say, if the

accused/drawer of the cheque in question neither raises a probable

defence nor able to contest existence of a legally enforceable debt or

liability, statutory presumption under Section 139 of the Negotiable

Instruments Act, regarding commission of the offence comes into

play. It would be profitable to reproduce relevant paras No.23 to 25 of

the judgment herein:-

“23. Further, a three judge Bench of this Court in the

matter of Rangappa vs. Sri Mohan [3] held that Section

139 is an example of a reverse onus clause that has

been included in furtherance of the legislative objective

of improving the credibility of negotiable instruments.

While Section 138 of the Act specifies the strong

criminal remedy in relation to the dishonour of the

cheques, the rebuttable presumption under Section 139

is a device to prevent undue delay in the course of

litigation. The Court however, further observed that it

must be remembered that the offence made punishable

by Section 138can be better described as a regulatory

offence since the bouncing of a cheque is largely in the

nature of a civil wrong whose money is usually

confined to the private parties involved in commercial

transactions. In such a scenario, the test of

proportionality should guide the construction and

interpretation of reverse onus clauses and the

defendant accused cannot be expected to discharge an

unduly high standard of proof”. The Court further

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observed that it is a settled position that when an

accused has to rebut the presumption under Section

139, the standard of proof for doing so is all

preponderance of probabilities.

24. Therefore, if the accused is able to establish

a probable defence which creates doubt about the

existence of a legally enforceable debt or liability,

the prosecution can fail. The accused can rely on

the materials submitted by the complainant in

order to raise such a defence and it is

inconceivable that in some cases the accused

may not need to adduce the evidence of his/her

own. If however, the accused/drawer of a cheque

in question neither raises a probable defence nor

able to contest existence of a legally enforceable

debt or liability, obviously 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 judge while issuing summons to conduct

the trial in matters where there has been

instruction to stop payment despite sufficiency of

funds and whether the same would be a sufficient

ground to proceed in the matter, would be

extremely heavy.

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13. By now it is well settled that dishonour of cheque issued

as “security” can also attract offence under Section 138 of the

Negotiable Instruments Act. Hon’ble Apex Court in case titled Sripati

Singh v. State of Jharkhand, Criminal Appeal No. 1269-1270 of

2021, decided on 28.10.2021, has held as under:

“16. A cheque issued as security pursuant to a financial

transaction cannot be considered as a worthless piece of paper

under every circumstance. ‘Security’ in its true sense is the

state of being safe and the security given for a loan is

something given as a pledge of payment. It is given, deposited

or pledged to make certain the fulfilment of an obligation to

which the parties to the transaction are bound. If in a

transaction, a loan is advanced and the borrower agrees to

repay the amount in a specified timeframe and issues a cheque

as security to secure such repayment; if the loan amount is not

repaid in any other form before the due date or if there is no

other understanding or agreement between the parties to defer

the payment of amount,

the cheque which is issued as security would mature for

presentation and the drawee of the cheque would be entitled to

present the same. On such presentation, if the same is

dishonoured, the consequences contemplated under Section

138 and the other provisions of N.I. Act would flow.

14. Needless to say, expression “security cheque” is not a

statutorily defined expression in the Negotiable Instruments Act,

rather same is to be inferred from the pleadings as well as evidence, if

any, led on record with regard to issuance of security cheque. The

Negotiable Instruments Act does not per se carve out an exception in

respect of a “security cheque” to say that a complaint in respect of

such a cheque would not be maintainable as there is a debt existing

in respect whereof the cheque in question is issued, same would

attract provision of Section 138 of the Act in case of its dishonour.

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15. Having scanned the entire evidence adduced on record

by the respective parties, this Court finds that all the basic ingredients

of Section 138 of the Act are met in the case at hand. Similarly,

factum with regard to signatures and issuance of cheque by the

accused towards discharge of lawful liability stands duly established

on record.

16. Moreover, this Court has a very limited jurisdiction under

Section 397 of the Cr.P.C, to re-appreciate the evidence, especially,

in view of the concurrent findings of fact and law recorded by the

courts below. In this regard, reliance is placed upon the judgment

passed by Hon’ble Apex Court in case “State of Kerala Vs.

Puttumana Illath Jathavedan Namboodiri” (1999) 2 Supreme Court

Cases 452, wherein it has been held as under:-

“In its revisional jurisdiction, the High Court can call for and

examine the record of any proceedings for the purpose of

satisfying itself as to the correctness, legality or propriety of

any finding, sentence or order. In other words, the

jurisdiction is one of supervisory jurisdiction exercised by

the High Court for correcting miscarriage of justice. But the

said revisional power cannot be equated with the power of

an appellate court nor can it be treated even as a second

appellate jurisdiction. Ordinarily, therefore, it would not be

appropriate for the High Court to re-appreciate the evidence

and come to its own conclusion on the same when the

evidence has already been appreciated by the Magistrate as

well as Sessions Judge in appeal, unless any glaring feature

is brought to the notice of the High Court which would

otherwise tantamount to gross miscarriage of justice.”

17. Since after having carefully examined the evidence in the

present case, this Court is unable to find any error of law as well as

fact, if any, committed by the courts below, while passing impugned

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judgments, there is no occasion, whatsoever, to exercise the

revisional power.

18. 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.

19. Consequently, in view of the discussion made herein

above as well as law laid down by the Hon’ble Apex Court, this Court

sees no valid reason to interfere with the well reasoned judgments

recorded by the courts below, which otherwise, appear to be based

upon proper appreciation of evidence available on record and as

such, same are upheld.

20. Accordingly, the present criminal revision petition is

dismissed being devoid of any merit. The petitioner is directed to

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surrender himself before the learned trial Court forthwith to serve the

sentence as awarded by the learned trial Court, if not already served.

Bail bonds of the petitioner are cancelled and discharged accordingly.

Interim direction, if any, stands vacated. Pending applications, if any,

also stand disposed of.

(Sandeep Sharma),

Judge

February 26,2026

(shankar)