IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No.426 of 2018 Date of Decision: 25.05.2026 __________________________________________________________________________ Hari Singh ……...Petitioner Versus Tikam Ram …....Respondent Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? _____________________________________________________________________________ For the Petitioner: Mr. Angrez Kapoor, Advocate. For the Respondent: Mr. Het Ram Thakur, Advocate. __________________________________________________________________________ Sandeep Sharma, J. (Oral) Instant criminal revision petition filed under Section 397/401 of Cr.P.C., lays challenge to judgment dated 06.10.2017, passed by the learned Sessions Judge, Kullu, H.P., in Criminal Appeal No.32 of 2017, titled as Hari Singh Vs. Tikam Ram, affirming judgment of conviction and order of sentence dated 03.11.2015/22.10.2016, passed by the learned Chief Judicial Magistrate, Lahaul-Spiti at Kullu, H.P., in criminal complaint No.172-I of 2009, whereby the learned trial Court while holding the petitioner-accused (hereinafter, “accused”) guilty of having committed offence punishable under Section 138 of the Negotiable Instruments Act (in short the “Act"), convicted and sentenced him to undergo simple imprisonment for a period of two months and pay compensation to the tune of Rs.10,00,000/- to the respondent-complainant. 2 2. Precisely, the facts of the case, as emerge from the record are that respondent-complainant (hereinafter, ‘complainant’) instituted a complaint under Section 138 of the Act, in the competent Court of law, stating therein that in the month of January 2008, accused, who was in dire need of money, approached him to advance loan to the tune of ₹8,00,000/- for purchase of tipper. While acting upon afore representation of the accused, complainant advanced sum of ₹8,00,000/- to the accused, who though assured that amount shall be returned within a period of five- six months, but fact remains that aforesaid amount was not returned and ultimately, accused issued a Cheque bearing No.352568 dated 31.12.2008, amounting to ₹8,00,000/- in favour of complainant, drawn at Himachal Gramin Bank, Branch Office Kullu. However, aforesaid Cheque on its presentation to the Bank concerned, was dishonoured with the remarks “Account closed” vide return memo received by him on 20.01.2009. After receipt of aforesaid return memo, complainant served accused with legal notice calling upon him to make the payment good well within stipulated time. However, since petitioner-accused failed to make the payment good within the time stipulated in the legal notice, respondent/complainant was compelled to initiate proceedings under Section 138 of the Act in the Court of learned Chief Judicial Magistrate, Lahaul-Spiti at Kullu, H.P. 3. Learned trial Court on the basis of material adduced on record by the respective parties, vide judgment/order dated 3 03.11.2015/22.10.2016, held the petitioner-accused guilty of having committed offence under Section 138 of the Act and accordingly, convicted and sentenced him, as per the description given hereinabove. 4. Though, at the first instance, accused preferred an appeal in the Court of learned Sessions Judge, Kullu, H.P., however, same was dismissed vide judgment dated 06.10.2017. In the aforesaid background, petitioner-accused has approached this Court by way of instant proceedings, seeking therein his acquittal after setting aside the judgments of conviction recorded by the Courts below. 5. Vide order dated 27.11.2018, Co-ordinate Bench of this Court stayed the substantive sentence imposed by the learned Court below, subject to petitioner/accused furnishing bail bonds and depositing 20% of the compensation amount, however, fact remains that aforesaid order was never complied with. Court file reveals that numerous opportunities came to be granted to petitioner to do the needful, but in vain. In afore background, this Court has no option but to decide the petition on its own merits. 6. During proceedings of the case, it came to be stated by learned counsel representing the petitioner that petitioner-accused has already undergone the sentence awarded by learned Court below, but such fact, if any, may not be relevant for adjudication of the case at hand for the reason 4 that Courts below while passing judgment of conviction and order of sentence has also imposed fine, which is yet to be recovered. 7. Having heard learned counsel for the parties and perused material adduced on record, vis-a-vis reasoning assigned in the impugned judgments, this Court sees no reason to agree with Mr. Angrez Kapoor, learned counsel representing the petitioner, that Courts below have fallen in grave error while appreciating the evidence, rather this Court finds that both the Courts below have meticulously dealt with each and every aspect of the matter and there is no scope left for interference. 8. Interestingly, in the case at hand, accused during the pendency of the complaint admitted his liability, but fact remains that he was unable to clear that. In his statement recorded under Section 313 Cr.P.C., though accused denied the case of the complainant in entirety with regard to issuance of Cheque, but he failed to lead any evidence despite various opportunities. Pattern of cross-examination conducted upon complainant clearly establishes factum with regard to issuance of Cheque as well as his signatures thereupon. If it is so, 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 a 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 5 the complainant or presumption can be rebutted by leading positive evidence, if any. However, in the case at hand, accused was unable to point out from the documents as well as evidence adduced on record by the complainant that Cheque issued by him was not issued towards discharge of lawful liability. 9. 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:- “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 6 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 7 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.” 10. Complainant with a view to prove its case, besides examining himself as CW-1, also examined CW-2 Lal Chand, Field Officer, Himachal Gramin Bank, Kullu. CW-1 tendered in evidence his affidavit Ex.CW1/A, Cheque Ex.CW1/B, memo Ex.CW1/C, copy of notice Ex.CW1/D, postal receipt Ex.CW1/E, unclaimed registered letter Ex.CW1/F, intimation letter of State Bank of India Ex.CW1/G and statement of account Ex.CW2/A. Cross-examination conducted upon afore witness nowhere suggests that 8 accused was able to extract anything contrary to what this witness stated in his examination-in-chief. 11. In his cross-examination, afore witness stated that there are three-four cases pertaining to him in the Court. While stating that he retired as a BPEO from the Education Department, he fairly admitted that he does not file income tax returns. While stating that he had given money to the accused near Dhalpur Temple, he clarified that money had been received by him as GPF at the time of retirement. While stating that he does not know as to whether the accused person has got any landed property, he categorically stated that he had given legal notice to the accused in the year 2009. While denying that he did not give any legal notice to the accused, he further denied that he had filled up Cheque Ex.CW1/B himself. He denied that Cheque Ex.CW1/B had been given to him by the accused as a security Cheque. He also denied that accused person returned an amount of ₹70,000/- to him and only 2,30,000/- is required to be paid by the ₹ accused. He denied that accused is ready and willing to pay an amount of 2,30,000/- to him. He denied that now he is demanding a sum of ₹ 8,00,000/- from the accused. Pattern of cross-examination of afore ₹ witness clearly establishes factum with regard to issuance of Cheque as well as signatures of accused thereupon. 12. Though accused attempted to carve out a case that Cheque in question was issued as a security, but the same was being misused, 9 however, he was unable to probabilise aforesaid defence by leading cogent and convincing evidence. If the evidence led on record by the respective parties is read in conjunction, this Court sees no reason to differ with the findings returned by the Courts below that complainant successfully proved on record that accused had issued Cheque towards discharge of his lawful liability. Similarly, accused by way of taking defence of issuance of Cheque as security, virtually accepted factum of his having issued the Cheque as well as his signatures thereupon and as such, both the Courts below rightly held accused guilty of the offence punishable under Section 138 of the Act, especially when Cheque in question issued by him was dishonoured on account of insufficient funds. 13. Since factum of issuance of Cheque by the accused as well as his signatures thereupon was never disputed, presumption as available under Section 118 and 139 of the Act rightly came to be invoked in the case of the petitioner that Cheque in question was issued in discharge of lawful liability. Since no evidence worth credence ever came to be led on record to rebut the presumption, no illegality can be said to have been committed by the Courts below while holding petitioner/accused guilty for the commission of offence punishable under Section 138 of the Act. Though, defence came to be taken at the behest of the petitioner/accused that Cheque in question was issued as a security, but the same may not be of any help to the accused, for the reason that by now, it is well-settled that 10 Cheque, even if issued as a ‘security’ can also be presented for encashment, if amount taken or promised to be repaid is not paid and liability sought to be discharged through Cheque in question exists on the date of presentation of so-called security Cheque. 14. 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.” 15. 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 11 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. 16. Record reveals that during the course of proceedings before the learned trial Court on 23.03.2010, accused made a statement that he wants to compromise the matter with the complainant and is ready to pay sum of ₹5,00,000/- to the complainant within a period of four months and in case he fails to do so, then he will pay the whole amount i.e. ₹8,00,000/- within a period of six months, however, accused did not adhere to his afore statement. To the contrary, complainant successfully proved on record that Cheque was issued to him by the accused for discharge of lawful liability. 17. 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. Since Cheque issued by accused towards discharge of his lawful liability was returned on account of ‘account closed’ and he despite having received legal notice failed to make the payment good within the stipulated time, complainant had no option but to institute proceedings under Section 138 of the Act, which subsequently rightly came to be decided by both the Courts below on the 12 basis of pleadings as well as evidence adduced on record by the respective parties. 18. 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 relied upon 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.” 19. 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 13 any, committed by the Courts below, while passing impugned judgments, there is no occasion, whatsoever, to exercise the revisional power. 20. 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. 21. Consequently, in view of the discussion made hereinabove 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. 22. Accordingly, the present criminal revision petition is dismissed being devoid of any merit. The petitioner is directed to surrender himself before the learned trial Court within a period of one month to serve the 14 sentence as awarded by the learned trial Court, if not already served. Bail bonds of the petitioner, if any, are cancelled. Interim order dated 27.11.2018 stands vacated. Amount, if any, deposited by the petitioner- accused with the learned trial Court as well as Registry of this Court is ordered to be released in favour of complainant by remitting the same in his bank account, detail whereof, shall be furnished by his counsel within a period of one week. Needless to say, complainant is always at liberty to file appropriate proceedings in the appropriate Court of law for realisation of compensation amount. Pending applications, if any, also stand disposed of. t (Sandeep Sharma), Judge May 25, 2026 (Rajeev Raturi)