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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Revision No.239 of 2025

Reserved on: 15.12.2025

Date of Decision: 01.01.2026

Prem Lata Busheri ...Petitioner

Versus

Usha Goel ...Respondent

Coram

Hon’ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting?

1

No.

For the Petitioner : Mr Anil Chauhan, Advocate.

For the Respondent : None for the respondent.

Rakesh Kainthla, Judge

The present revision is directed against the judgment

dated 24.01.2025, passed by learned Additional Sessions Judge

(CBI Court), Shimla, District Shimla, H.P. (learned Appellate

Court) vide which judgment of conviction dated 17.05.2024 and

order of sentence dated 25.05.2024 passed by learned Additional

Chief Judicial Magistrate, Court No.1, Shimla, District Shimla, H.P.

(learned Trial Court) were upheld. (Parties shall hereinafter be

1

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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referred to in the same manner as they were arrayed before the

learned Trial Court for convenience.)

2. Briefly stated, the facts giving rise to the present

petition are that the complainant filed a complaint against the

accused before the learned Trial Court for the commission of an

offence punishable under Section 138 of the Negotiable

Instruments Act (in short, ‘NI Act’). It was asserted that the

accused is the sole proprietor of M/s Mahalaxmi Jewellers, Lower

Bazar, Shimla and is engaged in the business of selling gold,

silver, diamond and other jewellery. The accused had purchased

jewellery worth ₹13,10,000/- from the complainant’s shop vide

voucher No. 6165 dated 01.01.2016. The accused paid a sum of

₹1,10,000/- and issued two cheques of ₹3,00,000/- each drawn on

the H.P. State Co-operative Bank Ltd. H.P. Secretariat, Shimla,

District Shimla, H.P. The complainant presented the cheques to

her bank, but they were dishonoured with the remark s ‘funds

insufficient’. The complainant served a legal notice upon the

accused asking her to pay the money, but she issued a reply to the

notice denying her liability instead of paying the money to the

complainant. Hence, a complaint was filed before the learned Trial

Court for taking action as per law.

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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 examined Karan Goel, her special

power of attorney (CW-1), to prove her case.

5. The accused, in her statement recorded under Section

313 of CrPC, denied the complainant’s case in its entirety. She

stated that her husband had taken a loan from the complainant

and issued the cheque as security. She claimed that her husband

had repaid the borrowed amount to the complainant. The

complainant misused her cheque s. The accused stated that she

wanted to lead defence evidence but failed to produce any

evidence; hence, her evidence was closed by the order of the Court

on 26.04.2024.

6. Learned Trial Court held that the accused had not

disputed the issuance of the cheque. A presumption would arise

that the cheque was issued for consideration to discharge the

debt/liability. The burden would shift upon the accused to rebut

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the presumption by leading evidence. The plea taken by her that

the accused had issued the security cheque for a loan taken by her

husband was not probable. The cheques were dishonoured with

the endorsement ‘funds insufficient’. Notice was served upon the

accused, and she had failed to repay the amount . All the

ingredients of the commission of an offence punishable under

Section 138 of the NI Act were duly satisfied. Hence, the learned

Trial Court convicted the accused of the commission of an offence

punishable under Section 138 of the NI Act and sentenced her to

undergo simple imprisonment for three months and pay a

compensation of ₹10,00,000/- to the complainant.

7. Being aggrieved by the judgment and order passed by

the learned Trial Court, the accused filed an appeal, which was

decided by the learned Additional Sessions Judge (C.B.I Court),

Shimla District, Shimla (learned Appellate Court). Learned

Appellate Court concurred with the findings recorded by the

learned Trial Court that the issuance of the cheque was not

disputed, and a presumption under Section 118(a) and 139 of the NI

Act would be attracted to the cheques that they were issued for

consideration to discharge the debt/liability. The accused failed to

rebut the presumption by leading any evidence. All the ingredients

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of the commission of an offence punishable under Section 138 of

the NI Act were duly satisfied. Learned Trial Court had imposed an

adequate sentence. No interference was required with the

judgment and order passed by the learned Trial Court. Hence, the

appeal was dismissed.

8. Being aggrieved by the judgments and order passed by

the learned Courts below, the accused has filed the present

petition asserting that the learned Courts below erred in

appreciating the material on record. The accused was ready and

willing to compound the matter with the complainant by paying

the cheques amount. Therefore, it was prayed that the present

petition be allowed and the judgments and order passed by the

learned Courts below be set aside.

9. I have heard Mr Anil Chauhan, learned counsel for the

petitioner/accused. None appeared on behalf of the

respondent/complainant despite service of notice; hence, none

could be heard on her behalf.

10. Mr Anil Chauhan, learned counsel for th e

petitioner/complainant, submitted that the learned Courts below

erred in appreciating the material on record. The plea taken by the

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accused that her husband had taken the loan from the

complainant and she had furnished her cheques as security was

highly probable, and it was wrongly rejected by the learned Courts

below. The complainant failed to prove the sale of the jewellery to

the accused; therefore, he prayed that the revision be allowed and

the judgments and order passed by the learned Courts below be set

aside.

11. I have given considerable thought to his submissions

made at the bar and have gone through the records carefully.

12. It was laid down by the Hon’ble Supreme Court in

Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204: (2022)

3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that a revisional court is

not an appellate court and it can only rectify the patent defect,

errors of jurisdiction or the law. It was observed at page 207-

“10. Before adverting to the merits of the contentions, at the

outset, it is apt to mention that there are concurrent

findings of conviction arrived at by two courts after a

detailed appreciation of the material and evidence brought

on record. The High Court in criminal revision against

conviction is not supposed to exercise the jurisdiction like

the appellate court, and the scope of interference in revision

is extremely narrow. Section 397 of the Criminal Procedure

Code (in short “CrPC”) vests jurisdiction to satisfy itself or

himself as to the correctness, legality or propriety of any

finding, sentence or order, recorded or passed, and as to the

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regularity of any proceedings of such inferior court. 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 that 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.

13. 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 397 CrPC, 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 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

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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

evidence, material evidence is ignored, or judicial

discretion is exercised arbitrarily or perversely. These

are not exhaustive classes, but are merely indicative.

Each case would have to be determined on its own

merits.

13. Another well-accepted norm is that the revisional

jurisdiction of the higher court is a very limited one and

cannot be exercised in a routine manner. One of the inbuilt

restrictions is that it should not be against an interim or

interlocutory order. The Court has to keep in mind that the

exercise of revisional jurisdiction itself should not lead to

injustice ex facie. Where the Court is dealing with the

question as to whether the charge has been framed properly

and in accordance with law in a given case, it may be

reluctant to interfere in the exercise of its revisional

jurisdiction unless the case substantially falls within the

categories aforestated. Even the framing of the charge is a

much-advanced stage in the proceedings under CrPC.”

14. It was held in Kishan Rao v. Shankargouda, (2018) 8 SCC

165: (2018) 3 SCC (Cri) 544: (2018) 4 SCC (Civ) 37: 2018 SCC OnLine

SC 651 that it is impermissible for the High Court to reappreciate

the evidence and come to its conclusions in the absence of any

perversity. It was observed at page 169:

“12. This Court has time and again examined the scope of

Sections 397/401 CrPC and the grounds for exercising the

revisional jurisdiction by the High Court. In State of Kerala v.

Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC 452:

1999 SCC (Cri) 275], while considering the scope of the

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revisional jurisdiction of the High Court, this Court has laid

down the following: (SCC pp. 454-55, para 5)

5. … In its revisional jurisdiction, the High Court can

call for and examine the record of any proceedings to

satisfy 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

a 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 reappreciate the

evidence and come to its conclusion on the same when

the evidence has already been appreciated by 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 amount to a

gross miscarriage of justice. On scrutinising the

impugned judgment of the High Court from the

aforesaid standpoint, we have no hesitati on 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,

(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 by the court is wholly

unreasonable or there is non-consideration of any relevant

material or there is palpable misreading of records, the

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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 the decision

in exercise of their revisional jurisdiction.”

15. This position was reiterated in Bir Singh v. Mukesh

Kumar, (2019) 4 SCC 197: (2019) 2 SCC (Cri) 40: (2019) 2 SCC (Civ)

309: 2019 SCC OnLine SC 13, wherein it was observed at page 205:

“16. It is well settled that in the exercise of revisional

jurisdiction under Section 482 of the Criminal Procedure

Code, the High Court does not, in the absence of perversity,

upset concurrent factual findings. It is not for the Revisional

Court to re-analyse and re-interpret the evidence on record.

17. As held by this Court in Southern Sales & Services v.

Sauermilch Design and Handels GmbH, (2008) 14 SCC 457, it is

a well-established principle of law that the Revisional Court

will not interfere even if a wrong order is passed by a court

having jurisdiction, in the absence of a jurisdictional error.

The answer to the first question is, therefore, in the

negative.”

16. A similar view was taken in Sanjabij Tari v. Kishore S.

Borcar, 2025 SCC OnLine SC 2069, wherein it was observed:

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“27. It is well settled that in exercise of revisional

jurisdiction, the High Court does not, in the absence of

perversity, upset concurrent factual findings [See: Bir Singh

(supra)]. This Court is of the view that it is not for the

Revisional Court to re-analyse and re-interpret the

evidence on record. As held by this Court in Southern Sales &

Services v. Sauermilch Design and Handels GMBH, (2008) 14

SCC 457, it is a well-established principle of law that the

Revisional Court will not interfere, even if a wrong order is

passed by a Court having jurisdiction, in the absence of a

jurisdictional error.

28. Consequently, this Court is of the view that in the

absence of perversity, it was not open to the High Court in

the present case, in revisional jurisdiction, to upset the

concurrent findings of the Trial Court and the Sessions

Court.

17. The present revision has to be decided as per the

parameters laid down by the Hon’ble Supreme Court.

18. The accused admitted in her statement recorded under

Section 313 Cr.P.C. that cheques were issued by her. She claimed

that her husband had taken a loan from the complainant, and her

cheques were handed over as security. Thus, the learned Courts

below had rightly held that the issuance of the che ques and

signatures on the cheques were not disputed. It was laid down by

the Hon'ble Supreme Court in APS Forex Services (P) Ltd. v. Shakti

International Fashion Linkers (2020) 12 SCC 724, that when the

issuance of a cheque and signature on the cheque are not disputed,

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a presumption would arise that the cheque was issued in discharge

of the legal liability. It was observed: -

“9. Coming back to the facts in the present case and

considering the fact that the accused has admitted the

issuance of the cheques and his signature on the cheque and

that the cheque in question was issued for the second time

after the earlier cheques were dishonoured and that even

according to the accused some amount was due and payable,

there is a presumption under Section 139 of the NI Act that

there exists a legally enforceable debt or liability. Of course,

such a presumption is rebuttable. However, to rebut the

presumption, the accused was required to lead evidence that

the full amount due and payable to the complainant had

been paid. In the present case, no such evidence has been led

by the accused. The story put forward by the accused that

the cheques were given by way of security is not believable

in the absence of further evidence to rebut the presumption,

and more particularly, the cheque in question was issued for

the second time after the earlier cheques were dishonoured.

Therefore, both the courts below have materially erred in

not properly appreciating and considering the presumption

in favour of the complainant that there exists a legally

enforceable debt or liability as per Section 139 of the NI Act.

It appears that both the learned trial court as well as the

High Court have committed an error in shifting the burden

upon the complainant to prove the debt or liability, without

appreciating the presumption under Section 139 of the NI

Act. As observed above, Section 139 of the Act is an example

of reverse onus clause and therefore, once the issuance of

the cheque has been admitted and even the signature on the

cheque has been admitted, there is always a presumption in

favour of the complainant that there exists legally

enforceable debt or liability and thereafter, it is for the

accused to rebut such presumption by leading evidence.”

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19. A similar view was taken in N. Vijay Kumar v.

Vishwanath Rao N., 2025 SCC OnLine SC 873, wherein it was held as

under:

“6. Section 118 (a) assumes that every negotiable

instrument is made or drawn for consideration, while

Section 139 creates a presumption that the holder of a

cheque has received the cheque in discharge of a debt or

liability. Presumptions under both are rebuttable, meaning

they can be rebutted by the accused by raising a probable

defence.”

20. A similar view was taken in Sanjabij Tari v. Kishore S.

Borcar, 2025 SCC OnLine SC 2069, wherein it was observed:

“ONCE EXECUTION OF A CHEQUE IS ADMITTED,

PRESUMPTIONS UNDER SECTIONS 118 AND 139 OF THE NI ACT

ARISE

15. In the present case, the cheque in question has

admittedly been signed by the Respondent No. 1-Accused.

This Court is of the view that once the execution of the

cheque is admitted, the presumption under Section 118 of

the NI Act that the cheque in question was drawn for

consideration and the presumption under Section 139 of the

NI Act that the holder of the cheque received the said cheque

in discharge of a legally enforceable debt or liability arises

against the accused. It is pertinent to mention that

observations to the contrary by a two -Judge Bench in

Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC

54, have been set aside by a three-Judge Bench in Rangappa

(supra).

16. This Court is further of the view that by creating this

presumption, the law reinforces the reliability of cheques as

a mode of payment in commercial transactions.

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17. Needless to mention that the presumption contemplated

under Section 139 of the NI Act is a rebuttable presumption.

However, the initial onus of proving that the cheque is not

in discharge of any debt or other liability is on the

accused/drawer of the cheque [See: Bir Singh v. Mukesh

Kumar, (2019) 4 SCC 197].

21. Thus, the Court has to start with the presumption that

the cheques were issued in discharge of the liability for

consideration, and the burden is upon the accused to rebut this

presumption.

22. It was submitted that the cheque were issued in the

name of Mahalaxmi Jewellers, and the complainant failed to

connect herself to Mahalaxmi Jewellers. This submission is not

acceptable. The complainant relied upon the certificate of

registration (Ext. CW-1/K), in which Ms Usha Goel has been

mentioned as the proprietor of Mahalaxmi Jewellers. Therefore,

the complainant is the proprietor of Mahalaxmi Jewellers and was

competent to file a complaint.

23. It was submitted that the complaint was filed in the

name of Usha Goel and not in the name of Mahalaxmi Jewellers.

The cheque was issued in the name of Mahalaxmi Jewellers , and

the complaint should have been filed in the name of Mahalaxmi

Jewellers. This submission cannot be accepted. It was laid down by

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the Hon’ble Supreme Court in Shankar Finance & Investments v.

State of A.P., (2008) 8 SCC 536: (2008) 3 SCC (Cri) 558: 2008 SCC

OnLine SC 997, that there is no distinction in law between a

proprietary concern and an individual trading under a trading

name. It was observed at page 540: -

10. As contrasted with a company incorporated under the

Companies Act, 1956, which is a legal entity distinct from its

shareholders, a proprietary concern is not a legal entity

distinct from its proprietor. A proprietary concern is

nothing but an individual trading under a trade name. In

civil law, where an individual carries on business in a name

or style other than his name, he cannot sue in the trading

name but must sue in his name, though others can sue him

in the trading name. Therefore, if the appellant in this case

had to file a civil suit, the proper description of the plaintiff

should be “Atmakuri Sankara Rao carrying on business

under the name and style of M/s Shankar Finance &

Investments, a sole proprietary concern. But we are not

dealing with a civil suit. We are dealing with a criminal

complaint to which the special requirements of Section 142

of the Act apply. Section 142 requires that the complainant

should be the payee. The payee is M/s Shankar Finance &

Investments. Therefore, in a criminal complaint relating to

an offence under Section 138 of the Act, it is permissible to

lodge the complaint in the name of the proprietary concern

itself.

11. The next question is where a proprietary concern carries

on business through an attorney holder, and whether the

attorney holder can lodge the complaint. The attorney

holder is the agent of the grantor. When the grantor

authorises the attorney holder to initiate legal proceedings

and the attorney holder accordingly initiates legal

proceedings, he does so as the agent of the grantor, and the

initiation is by the grantor represented by his attorney

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holder, and not by the attorney holder in his personal

capacity. Therefore where the payee is a proprietary

concern, the complaint can be filed: (i) by the proprietor of

the proprietary concern, describing himself as the sole

proprietor of the “payee”; (ii) the proprietary concern,

describing itself as a sole proprietary concern, represented

by its sole proprietor; and (iii) the proprietor or the

proprietary concern represented by the attorney hol der

under a power of attorney executed by the sole proprietor. It

follows that in this case, the complaint could have been

validly filed by describing the complainant in any one of the

following four methods:

“Atmakuri Shankara Rao, sole proprietor of M/s Shankar

Finance & Investments”

or

“M/s Shankar Finance & Investments, a sole proprietary

concern represented by its proprietor, Atmakuri Shankara

Rao”

or

“Atmakuri Shankara Rao, sole proprietor of M/s Shankar

Finance & Investments, represented by his attorney holder

Thamada Satyanarayana”

or

“M/s Shankar Finance & Investments, a proprietary concern

of Atmakuri Shankara Rao, represented by his attorney ,

holder Thamada Satyanarayana.

What would have been improper is for the attorney holder

Thamada Satyanarayana to file the complaint in his own

name as if he was the complainant.”

24. A similar view was taken in Nexus Health & Beauty Care

(P) Ltd. v. National Electrical Office, 2012 SCC OnLine HP 5383,

wherein it was observed: -

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“26. The complaint is not happily worded. No doubt, in the

memo of parties, the complainant has referred to the

complainant’s ‘M/s National Electrical Office’, but in para 2,

it has been pleaded that the complainant is providing

services of Industrial Electrical fitting under the name and

style of ‘National Electrical’. Again, in the memo of parties,

Subhash Bharwal has been referred to as proprietor, but in

para 1 of the complaint, the complainant has described itself

as a firm. In evidence by way of affidavit Ex.CW-1/A, it has

been stated that the complainant is providing services of

Industrial Electrical fitting under the name and style of

‘National Electrical’. Subhash Pharwal is its sole proprietor.

The cheque Ex.C-1 has been issued in the name of ‘National

Electricals’. The complaint is loosely drafted. But in the

complaint, the complainant has described itself as ‘National

Electrical’ in the body of the complaint.

27. On the face of the complaint and affidavit, Ex. CW-1/A,

prima facie, it cannot be said that the complainant is a firm,

namely M/s National Electrical Office. The complainant in

the body of the complaint has described the complainant as

‘National Electrical’, a sole proprietorship concern of

Subhash Bharwal. It will be too technical to throw out the

complaint due to loose drafting. At this stage, if the

pleadings of the petition are seen, the petition is also not

less loosely drafted. It starts with the sentence ‘complainant

issued a cheque for Rs. 2.00 lacs’. The complainant did not

issue a cheque of Rs. 2,00,000/-. The cheque was allegedly

issued by the accused petitioners. Not only in the opening

para of the petition, but in other places also, the petitioners

have used loose expressions. In para 3 of the petition before

grounds, it has been pleaded that the “complainant

aggrieved and dissatisfied with the order summoning the

accused and taking cognisance of the case by the Judicial

Magistrate, files this petition”. The substance of the

complaint or petition is to be seen, and it should not be

thrown out merely on technicalities of loose drafting. It

emerges from the complaint that the complainant is the

‘National Electrical’ sole proprietorship concern of Subhash

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Bharwal. In view of Milind Shripad Chandurkar (supra), it

cannot be said that the complaint is not maintainable.”

25. In the present case, the complaint was filed in the name

of Smt. Usha Goel, Proprietor of Mahalaxmi Jewellers, which is as

per the judgment of the Hon’ble Supreme Court, therefore, the

submission that the complaint is not proper cannot be accepted.

26. It was submitted that the complainant examined her

power of attorney, Karan Goel, which is fatal to her complaint.

This submission will not help the petitioner. It was laid down by

Naresh Potteries v. Aarti Industries, (2025) 256 Comp Cas 606: 2025

SCC OnLine SC 18 that a power of attorney can file and appear on

behalf of the complainant. It was observed:-

“19. After discussing the discretionary powers of the

Magistrate, this court went on to hold that the power of

attorney holder may be allowed to file, appear and depose

for the purpose of issue of process for the offence

punishable under section 138 of the Negotiable Instruments

Act. This court, however, cautioned that an exception to the

above would be when the power of attorney holder does not

have personal knowledge about the transactions, in which

case, he cannot be examined. Nevertheless, this court

clarified that where the power of attorney holder of the

complainant is in charge of the business of the complainant

payee and the power of attorney holder alone is personally

aware of the transactions, there is no reason why he cannot

depose as a witness, however, such personal knowledge

must be explicitly asserted in the complaint and a power of

attorney holder who has no personal knowledge of the

transactions cannot be examined as a witness in the case.”

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27. Karan Goel (CW-1) specifically stated that the accused

visited his shop and purchased the jewellery worth ₹13,10,355/-.

He issued a bill in favour of the accused. The accused had paid

₹1,10,000/-and issued two cheques for the remaining amount. He

stated in his cross-examination that Bill (Ext.CW-1/B) was in his

handwriting. His testimony shows that he had effected the sale

and had personal knowledge regarding the circumstances leading

to the issuance of the cheques; hence, the complaint cannot be

discarded because the complainant did not appear before the Court

and examined her special power of attorney.

28. The accused, in her statement recorded under Section

313 of Cr.P.C., stated that her husband had taken the loan from the

complainant. She had sent a reply (Mark -X) to the notice claiming

that she had not purchased any ornaments against the voucher.

The complainant had obtained blank cheques and the signatures

of the accused. The accused returned the amount and demanded

blank cheques, but these were not returned.

29. Thus, it is apparent that the earliest version

propounded by the accused was that she had taken money herself

and had issued the cheques. The defence was changed in the

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statement recoded under Section 313 of Cr.P.C that the loan was

taken by the husband of the accused and the accused had issued

the cheques. The accused never suggested to Karan Goal (CW1)

that she had issued the cheques as security for the loan of her

husband. Thus, the defence taken by the accused was highly

contradictory and could not have been relied upon.

30. The accused did not step into the witness box to prove

the defence taken by her. She relied upon her statement recorded

under Section 313 of Cr.P.C. to prove her defence. It was held in

Sumeti Vij v. Paramount Tech Fab Industries, (2022) 15 SCC 689: 2021

SCC OnLine SC 201 that the accused has to lead defence evidence to

rebut the presumption and mere denial in his statement under

Section 313 is not sufficient. It was observed at page 700:

“20. That apart, when the complainant exhibited all these

documents in support of his complaints and recorded the

statement of three witnesses in support thereof, the

appellant recorded her statement under Section 313 of the

Code but failed to record evidence to disprove or rebut the

presumption in support of her defence available under

Section 139 of the Act. The statement of the accused recorded

under Section 313 of the Code is not substantive evidence of

defence, but only an opportunity for the accused to explain the

incriminating circumstances appearing in the prosecution's

case against the accused. Therefore, there is no evidence to

rebut the presumption that the cheques were issued for

consideration." (Emphasis supplied)”

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31. The complainant’s version was duly corroborated by

the voucher/Cash Credit Memo (Ext.CW-1/B), in which a total sale

of ₹13,10,000/- and details of the cheques have been mentioned.

This bill was duly signed by the accused and supported the

complainant’s version. The accused did not lead any evidence to

rebut the presumption and took contradictory defences. Learned

Courts below were justified in holding that the accused had failed

to rebut the presumption attached to the cheques.

32. The complainant asserted that the cheques were

dishonoured with the endorsement ‘funds insufficient’. She filed

memos of dishonour (Ext.CW-1/E and Ext. CW-1/F), in which it

was mentioned that cheques were dishonoured with the

endorsement ‘funds insufficient’. It was laid down by the Hon’ble

Supreme Court in Mandvi Cooperative Bank Ltd. v. Nimesh B.

Thakore, (2010) 3 SCC 83: (2010) 1 SCC (Civ) 625: (2010) 2 SCC (Cri) 1:

2010 SCC OnLine SC 155 that the memo issued by the Bank is

presumed to be correct and the burden is upon the accused to

rebut the presumption. It was observed at page 95:

“24. Section 146, making a major departure from the

principles of the Evidence Act, provides that the bank's slip

or memo with the official mark showing that the cheque

was dishonoured would, by itself, give rise to the

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presumption of dishonour of the cheque, unless and until

that fact was disproved. Section 147 makes the offences

punishable under the Act compoundable.”

33. The accused did not lead any evidence to rebut the

presumption. Thus, it was duly proved that the cheques were

dishonoured with the endorsement ‘funds insufficient’.

34. The complainant stated that a notice was sent to the

accused on 30.04.2016. The accused sent a reply to the notice

showing that she had received notice. She did not repay the

amount. Thus, the learned Courts below had rightly held that the

accused had failed to repay the amount despite the receipt of a

valid notice of demand.

35. Thus, it was duly proved on record that accused had

issued the cheques to discharge her legal liability, which were

dishonoured with the endorsement ‘funds insufficient’ and the

accused failed to repay despite receipt of valid notice of demand,

hence, all the ingredients of the commission of offence

punishable under Section 138 of NI Act were duly satisfied and the

learned Trial Court had rightly convicted the accused for the

commission of an offence punishable under Section 138 of NI Act.

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36. Learned Trial Court sentenced the accused to undergo

simple imprisonment for three months. It was laid down by the

Hon’ble Supreme Court in Bir Singh v. Mukesh Kumar, (2019) 4

SCC 197: (2019) 2 SCC (Cri) 40: (2019) 2 SCC (Civ) 309: 2019 SCC

OnLine SC 138 that the penal provisions of Section 138 of the

N.I.Act is deterrent in nature. It was observed at page 203:

“6. The object of Section 138 of the Negotiable Instruments

Act is to infuse credibility into negotiable instruments,

including cheques, and to encourage and promote the use of

negotiable instruments, including cheques, in financial

transactions. The penal provision of Section 138 of the

Negotiable Instruments Act is intended to be a deterrent to

callous issuance of negotiable instruments such as cheques

without serious intention to honour the promise implicit in

the issuance of the same.”

37. Therefore, the sentence of three months is not

excessive.

38. The learned Trial Court ordered the accused to pay

₹10,00,000/-. The two cheques were issued for ₹3,00,000/-each,

which means that the learned Trial Court had awarded the

compensation of ₹4,00,000/-. The cheques of ₹3,00,000/-each

were issued on 15.01.2016 and 20.01.2016, respectively. The

compensation was imposed on 25.05.2024 after the lapse of eight

years. The complainant lost the interest that she would have

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gained by investing the money. The complainant incurred legal

expenses for prosecuting the complaint before the learned Trial

Court and defending the appeal filed before the learned Appellate

Court. Therefore, she was entitled to be compensated for the same.

It was laid down by the Hon’ble Supreme Court in Kalamani Tex v.

P. Balasubramanian, (2021) 5 SCC 283: (2021) 3 SCC (Civ) 25: (2021)

2 SCC (Cri) 555: 2021 SCC OnLine SC 75 that the Courts should

uniformly levy a fine up to twice the cheque amount along with

simple interest at the rate of 9% per annum. It was observed at

page 291: -

19. As regards the claim of compensation raised on behalf of

the respondent, we are conscious of the settled principles

that the object of Chapter XVII of NIA is not only punitive

but also compensatory and restitutive. The provisions of

NIA envision a single window for criminal liability for the

dishonour of a cheque as well as civil liability for the

realisation of the cheque amount. It is also well settled that

there needs to be a consistent approach towards awarding

compensation, and unless there exist special circumstances,

the courts should uniformly levy fines up to twice the

cheque amount along with simple interest @ 9% p.a. [ R.

Vijayan v. Baby, (2012) 1 SCC 260, para 20: (2012) 1 SCC (Civ)

79: (2012) 1 SCC (Cri) 520]”

39. Hence, the compensation cannot be said to be

excessive.

40. No other point was urged.

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41. In view of the above, the present revision fails and is

dismissed, so also pending miscellaneous application(s), if any.

42. A copy of the judgment, along with records of the

learned Courts below, be sent back forthwith.

(Rakesh Kainthla)

Judge

01

st

January, 2026.

(ravinder)