THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No.4175 of 2013 with 4176 of 2013 Date of Decision: 22.05.2026 _______________________________________________________ 1. Cr. Revision No.4175 of 2013 K.K. Tibriwal …….Petitioner Versus M/s Ruchira Papers Ltd. … Respondents 2. Cr. Revision No.4176 of 2013 Amit Kumar Tibriwal …….Petitioner Versus M/s Ruchira Papers Ltd. … Respondents _______________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 For the Petitioner(s) : Mr. Paras Dhaulta, Advocate. For the Respondent(s) : Mr. Vivek Thakur and Mr. Het Ram Thakur, Advocates. _______________________________________________________ Sandeep Sharma, Judge(oral): Since common questions of law and facts are involved in the above-captioned petitions and petitioners in both the petition are aggrieved of common judgment dated 06.07.2013, passed by learned Additional Sessions Judge, Sirmaur, District at Nahan, Himachal Pradesh, both the petitions were heard together and now same are being disposed of by this common order. However, for the sake of 1Whether the reporters of the local papers may be allowed to see the judgment? 2 clarity, facts of Cr. Revision No.4175 of 2023, titled as K.K. Tibriwal vs. M/s Ruchira Papers Limited, are being discussed herein below:- 2. Instant Criminal Revision petition filed under Section 397 of the Code of Criminal Procedure, lays challenge to judgment dated 06.07.2013, passed by learned Additional Sessions Judge, Sirmour, District at Nahan, Himachal Pradesh, in Criminal Appeal No.9-N/10 of 2008, affirming judgment of conviction dated 31.03.2018 and order of sentence dated 23.04.2008, passed by learned Chief Judicial Magistrate, Sirmour District at Nahan, Himachal Pradesh, in Criminal Case No.11/3 of 2003/02, whereby learned trial Court, while holding petitioners-accused (hereinafter referred to as the ‘accused’) guilty of their having committed an offence punishable under Section 138 of the Negotiable Instruments Act (for short ‘Act’), convicted and sentenced them to undergo simple imprisonment for a period of six months and pay fine of Rs. 2000/- each and in default of payment of fine, to further undergo simple imprisonment for a period of one months. Apart from above, the petitioners-accused were also directed to pay compensation to the tune of Rs. 4, 00,000/- each to the respondent/complainant (hereinafter referred to as the ‘complainant’). 3 3. 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 the respondent-complainant instituted a complaint under Section 138 of the Act in the competent Court of law, alleging therein that complainant-Company, engaged in the business of kraft paper, had sold the kraft papers to the accused persons, who with a view to discharge their lawful liability, issued six cheques, the details whereof are as under:- Cheques No. Date Amount Name of the Bank 4054045 26.11.2001 Rs. 50,000/- Union Bank of India, Calcutta 405406 26.11.2001 Rs.1,00,000/- -do- 405407 27.01.2002 Rs. 50,000/- -do- 405408 27.02.2002 Rs.50,000/- -do- 405409 26.03.2002 Rs. 50,000/- -do- 405410 27.04.2002 Rs.1,00,000/- -do- However, fact remains that aforesaid cheques on their presentation to the bank concerned i.e. Central Bank of India, Nahan were dishonoured and returned back vide memo dated 18.06.02002 on the ground of “insufficient funds”. Immediately, after receipt of aforesaid return memo, complainant served accused with legal notice dated 24.06.2002, thereby calling upon them to make the payment good within stipulated time. Though, aforesaid notices were duly 4 served upon the accused on 28.06.2002, but fact remains that they failed to make the payment as a result thereof, 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 both the accused guilty of their having committed offence punishable under S. 138 of the Act and accordingly, convicted and sentenced them as per description given herein above. 4. Being aggrieved and dissatisfied with aforesaid judgment of conviction and order of sentence recorded by learned trial Court, present petitioners-accused preferred an appeal in the Court of learned Additional Sessions Judge, Sirmaur at Nahan, Himachal Pradesh, which came to be partly allowed vide judgment dated 06.07.2013, whereby afore Court, while upholding the judgment of conviction and order of sentence recorded by learned trial Court, set- aside the part of the sentence imposing fine of Rs. 2000/- each upon the accused. In the aforesaid background, petitioners-accused have approached this Court in the instant proceedings, praying therein for their acquittal after quashing and setting aside the impugned judgment of conviction and order of sentence recorded by Courts below. 5 5. Vide order dated 03.12.2013, this Court suspended the substantive sentence imposed by Court below, subject to petitioners- accused furnishing personal bonds in the sum of Rs. 5000/- each and depositing sum of Rs. 2,00,000/- each within a period of four weeks. However, fact remains that aforesaid order never came to be complied with, as a result of which, interim order dated 03.12.2013 passed by this Court came to be vacated. 6. Today, during the proceedings of the case, learned counsel representing the petitioners fairly stated that since petitioners are not coming forward to impart instructions, this Court may proceed to decide the instant petitions on their own merits. 7. Having heard learned counsel representing the parties and perused material available on record vis-à-vis reasoning assigned in the judgment passed by learned Additional Sessions Judge, Sirmaur at Nahan, affirming the judgment of conviction and order of sentence passed by learned trial Court , this Court is not persuaded to agree with learned counsel for the petitioners that both the Courts below have failed to appreciate the evidence in its right perspective, rather this Court is convinced and satisfied that both the Courts below have meticulously dealt with each and every aspect of the matter and there is no scope left for interference. 6 8. Interestingly, in the case at hand, accused, while getting their statements recorded under Section 313 Cr.P.C., denied the case of the complainant in toto, but, while cross-examining the complainant’s witnesses, attempted to set up a defence that cheques had been issued in relation to some other transaction and same had been misused. However, aforesaid defence never came to be probablized by the accused by leading cogent and convincing evidence. 9. Complainant, with a view to prove its case, examined Sh. Yashpal Dhiman, Deputy Manager, Central Bank of India, Nahan Branch as PW-1, who deposed that he had been posted in Central Bank of India, Nahan since November, 1999 and M/s Ruchira Paper Limited had availed cash credit limit facility from his bank. He deposed that complainant had deposited six cheques on 06.05.2002 for collection for a total amount of Rs. 4, 00,000/-, which were sent by his branch to Calcutta for collection. However, these cheques were received back from Calcutta Branch of the bank on 18.06.2002 with the endorsement “insufficient funds” as per memo Ex. P-1. He further stated that on the same day, i.e. on 18.06.2002, the said cheques were returned to the complainant, M/s Ruchira Papers Limited alongwith original memo. He also placed on record memos issued by the Union Bank, Ex.P-2 to Ex.P-7 and cheques Ex. P-8 to Ex. P-13. In 7 his cross-examination, he admitted that M/s Ruchira Papers Limited had many transactions with his bank. He denied that his bank was trying to help the complainant out of way. While admitting that some time the bank makes over drafting in case credit account of CC Limit, but he feigned his ignorance whether accused has cash credit account in Union Bank of India, Calcutta or not. He specifically denied that memo Ex.P-2 to Ex. P-7 have been fraudulently prepared by the complainant in connivance with his bank. 10. PW-2, Sushil Kumar, Accountant of the complainant – Company, deposed that he works as Accountant in the complainant company. While stating that he deals in the accounts of the company, he further deposed that the Board of Directors of the complainant- Company vide its meeting dated 23.03.1998 have passed resolution authorizing him to present the complaint and to engage an advocate and to give statement and to do other things. While producing the Original Minute Book of the proceedings of the meeting of the Board of Directors of the complainant-Company, he placed on record photocopy of resolution Ex. PW-2/A. He further stated that complainant-company manufactures kraft paper and accused Nos. 2 and 3 are partners of the accused firm M/s Balaji Trading Company. He categorically stated that accused Nos. 2 and 3 look after the work of accused firm. While stating that accused persons have been 8 purchasing kraft paper from his company since the year 1996, he stated that in lieu of the price of kraft paper, the accused persons issued six cheques (four cheques of 50,000/- each and two cheques of Rs. 1,00,000/- each) Ex.P-8 to Ex.P-13. He deposed that accused No.3, Amit Kumar, signed the said cheques in the capacity of partner of accused firm. He submitted that these cheques were presented in the bank by the complainant company in their current account in Central Bank of India, Nahan, for the purpose of collection, however same were returned vide memo Ex. P-1 alongwith memos Ex. P-2 to Ex.P-7 with the report that sufficient funds were not there in the account of the accused. This witness further deposed that legal notice Ex.PW2/B was issued by the complainant through their counsel Sh. A.S.Shah, Advocate on 24.06.2002 through registered post and UPC. While placing on record postal receipt Ex.PW-2/C to Ex.PW-2/E and UPC Ex.PW-2/F, he submitted that accused persons though received afore notices dated 24.06.2002 and 28.06.2002 through acknowledgments Ex.PW-2/G to Ex.PW-2/J, but yet failed to make the payment. He deposed that accused persons issued cheques in legal discharge of their liability arisen out of the purchase of kraft paper by them from the complainant, but these cheques were dishonoured. He deposed that at present Rs. 22, 72, 148/- remains to be paid by the accused firm to the complainant. He placed on record 9 computerized statement of account Ex.PW-2/K. He further deposed that accused persons were convicted by this Court in some other case. He deposed that on the basis of statement of account Ex. PW- 2/K, liability was separated from the present cheques. He further deposed that accused persons acknowledged their liability vide letter Ex.PW-2/L and Ex.PW-2/M. 11. Cross-examination conducted upon afore witness, if perused in its entirety, nowhere suggests that accused were able to extract anything contrary to what this witness stated in his examination-in-chief. While admitting that he is working as Accountant in the complainant-company since April 1990, this witness admitted that initial transaction between the complainant and the accused took place at the time when Sh. S.C. Garg was director of the complainant company. He denied that Sh. S.C. Garg is having knowledge about the transaction interse complainant company and the accused firm and he has no knowledge of the same. He also denied that he has not been authorized by the complainant company to prosecute the present complaint. While stating that he has not brought the bills and bilties qua the articles purchased by the accused persons from the complainant company, he stated that he has placed on record the statement of the account EX.PW-2/K, in which there is a reference of business transaction between the complainant and the accused. He 10 stated that material was supplied to the accused firm lastly in the month of October, 1999. While stating that payment was received from the accused persons from time to time, reference of which is Ex.PW-2/K, he feigned ignorance about the previous complaints bearing No.70/3 of 2000 filed on 29.01.2000, which was decided on 21.03.2003 as well as complaint bearing No.54/3 of 2001, dated 17.03.2001. He feigned his ignorance whether afore complaints were dismissed on 27.02.2003. While admitting that accused persons made payment qua the articles supplied to them by the complainant from time to time, he denied that there is no liability on the part of the accused to make payment to the complainant company through cheques Ex.P-8 to Ex.P-13. He stated that in case No.70/3 of 2001 negotiation between the complainant and the accused for compromise was going on, but no compromise was effected. He denied that cheques Ex.P-8 to Ex.P-13 were issued in the complaint No.70/3 of 2001 for compromise. While denying that these cheques were issued by the accused persons on the understanding that previous complaint will be dismissed and the cheques will be honoured, he reiterated that cheques Ex.P-8 to P-13 were issued towards discharge of lawful liability in the case at hand, but same were not got encashed by the complainant. 11 12. From the pattern of the cross-examination conducted upon the complainant, as taken note hereinabove, it clearly emerges that accused attempted to carve out a case that cheques Ex.P-8 to Ex.P-13 though were issued by them, but not towards discharge of lawful liability in the case at hand, rather same was issued in some other case, wherein talks were going on for compromise. However, same have been misused in the case at hand. 13. To probablize aforesaid defence, accused examined himself as DW-1 and stated that he was a sleeping partner of accused No.1-firm w.e.f. 1st Apri, 2000. While stating that he has brought original partnership deed with him, certified copy of which is Ex.D-1, he stated that he is not responsible for any transaction made by the accused-firm before 01.04.2000 and after 01.04.2000 no transaction took place between the complainant and the accused-firm, nor there is any liability of them to pay on behalf of the accused-firm to the complainant-company. While stating that he has been wrongly made an accused in the present case, he further stated that he did not receive any notice qua the cheques. He stated that he signed the said cheques merely in the capacity of sleeping partner and he did not issue any cheque to the complainant company, nor he has any liability to pay to the complainant. In his cross-examination, he admitted that accused No.1 is a firm, which is old one and this firm is working for 12 the last 15-20 years. He further admitted that accused No.2 is his father. While stating that he does not know the exact business done by the accused firm, he deposed that this firm used to sell kraft papers after purchasing. He stated that before existence of Ex.D-1, partnership deed was existing, which is not with him. He admitted that the accused firm is doing the business on the basis of said deed. He stated that on the basis of Ex. D-1, his uncle P.K. Tibriwal has retired from the said firm and he became partner of the firm, which already existed. While claiming that he became sleeping partner, he further stated that there is no mention in Ex. D-1 regarding his being a sleeping partner. He feigned his ignorance that assets and liabilities of the firm were taken over by new partners vide Ex. D-1, but he does not know the extent of his share in the accused firm. He stated that he does not know the assets and liabilities of the accused firm at the time when Ex. C-1 was prepared. He denied that Ex.D-1 has been prepared by him during the pendency of this complaint to evade his liability. While admitting his signatures on the cheques Ex. P-8 to Ex. P-13 in the capacity of a partner, he stated that he was a sleeping partner. He admitted that the cheques Ex. P-8 to Ex. P-13 were issued from Union Bank of India in the name of the accused firm pertaining to their account and these cheques belong to accused No.1. He stated that he does not know that at the time of issuance of 13 cheque Ex.P-8 to Ex.P-13, his firm had any financial liability to pay to the complainant. He stated that he signed the cheques Ex.P-8 to Ex.P-13 at the instance of his father. While stating that he has not brought the statement of the account of accused firm pertaining to their account in Union Bank of India, he admitted that the cheques Ex.P-8 to Ex.P-13 were dishonoured for want of sufficient funds in the account of the accused firm. While feigning his ignorance with regard to liability to the tune of Rs. 22, 72, 148/- towards the complainant company, he admitted that on UPC receipts Ex.PW2/E and Ex.PW2/F, his name and name of the firm have been correctly mentioned. He denied that on acknowledgment of registered notices Ex.PW-2/G to Ex.PW-2/H, there are his signature and signature of his father and there are signatures of officials of their firm on the said acknowledgments. While denying that he does not know whether reply of notice Ex.PW-2/B was sent to accused No.1 and 2 or not, he admitted that documents Ex.PW-2/L and Ex.PW-2/M are of his firm, which are signed by his father. 14. Besides afore ocular evidence, accused also tendered in evidence copy of complaint Ex.C-2, copy of judgment Ex. D-3, copy of statement of complainant’s witnesses Ex. D-4, statement of account Ex.D-5, copy of complaint Mark X and copy of judgment Mark X-1, 14 Copy of statement of complainant witnesses Mark Z and copy of statement of CW- Sushil Kumar Ex. D-6. 15. Careful perusal of entire evidence adduced on record by the respective parties clearly suggests that complainant successfully proved on record that cheques Ex.P-8 to Ex.P-13 were issued by the accused towards discharge of their lawful liability, but same were dishonoured on account of insufficient funds. Complainant also successfully proved on record that before initiating proceedings under Section 138 of the Act, he had served legal notice upon the accused thereby calling upon them to make the payment good, but since needful was not done, he had no option, but to initiate proceedings under Section 138 of the Act in the competent court of law, which subsequently rightly came to be allowed vide judgment of conviction and order of sentence passed by learned Courts below. 16. Defence attempted to be set up with regard to issuance of cheque in some other transaction never came to be probablized. Similarly, though accused Amit Kumar attempted to evade his liability by proving that he was sleeping partner and he had no knowledge with regard to financial liability, if any, of the accused towards complainant, but once he was unable to dispute that he has become partner of the firm after retirement of his uncle P.K. Tibriwal and in terms of partnership deed, he has acquired assets and liabilities, 15 coupled with the fact that he admitted factum with regard to his having issued cheques as well as signatures thereupon, no illegality otherwise can be said to have been committed by the 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. 17. 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 is 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:- 16 “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 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 17 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. 18. 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 cheques by the accused towards discharge of lawful liability stands duly established on record. 19. 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 18 is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice.” 20. 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 judgments, there is no occasion, whatsoever, to exercise the revisional power. 21. 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. 22. 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 19 upon proper appreciation of evidence available on record and as such, same are upheld. 23. Accordingly, the present criminal revision petitions are dismissed being devoid of any merit. The petitioners are directed to surrender themselves before the learned trial Court within a period of 30 days to serve the sentence as awarded by the learned trial Court, if not already served. Bail bonds of the petitioners are cancelled. Interim direction, if any, stands vacated. Pending applications, if any, also stand disposed of. (Sandeep Sharma), Judge May 22,2026 (shankar)