1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Revision No.400 of 2022 Date of Decision: 27.05.2026 _________________________________________________________________________ Satpal Chauhan ……...Petitioner Versus Surender Mohan Sirkeck …....Respondent Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? For the Petitioner: Mr. Rahul Gautam & Mr. Sative Chauhan, Advocates. For the Respondent: Mr. B.R. Verma, Advocate. _________________________________________________________________________________ Sandeep Sharma, J. (Oral) Instant criminal revision petition filed under Section 397 read with Section 401 of Cr.P.C., lays challenge to judgment dated 29.06.2022 passed by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, Shimla, Himachal Pradesh, in Criminal Appeal No.10 of 2018, affirming the judgment of conviction dated 28.05.2015 and order of sentence dated 29.05.2015, passed by the learned Additional Chief Judicial Magistrate, Rampur Bhushahr, District Shimla, H.P. in criminal case No.138 Nia/0300086 of 2011, whereby the learned Court below, while holding the petitioner-accused (in short the "accused") guilty of having committed offence punishable under Section 138 of the Negotiable 2 Instruments Act (in short the "Act”), convicted and sentenced him to undergo simple imprisonment for a period of three months and pay compensation to the tune of Rs.1,70,000/- to the respondent-complainant (in short the "complainant"). 2. Precisely, the facts of the case, as emerge from the pleadings as well as other material adduced on record by the respective parties are that complainant instituted a complaint under Section 138 of the Act before the learned Additional Chief Judicial Magistrate, Rampur Bhushahr, District Shimla, H.P., alleging therein that he is the proprietor of M/s Himalaya Fruit Agency, and works as commission agent of fruits and vegetables at Subzi Mandi, Khegsu. Accused, who was dealing in apple trade at Subzi Mandi Khegsu and was having good relations with the complainant, issued a cheque No.252290 dated 19.09.2010 for an amount of Rs.94,000/- drawn on Punjab National Bank, Madhauni, District Shimla, Himachal Pradesh, in favour of the complainant with a view to discharge his lawful liability with respect to sale of apple boxes. However, aforesaid cheque on its presentation to the bank concerned was dishonoured on account of “insufficient funds” in the bank account of the accused. Since accused failed to make the payment good within the stipulated period despite his 3 having received legal notice, complainant had no option, but to initiate proceedings under Section 138 of the Act in the competent Court of law. 3. Learned trial Court on the basis of material adduced on record by the respective parties, vide judgment/order dated 28.05.2015/ 29.05.2015, held the accused guilty of his having committed offence punishable under Section 138 of the Act and accordingly, convicted and sentenced him as per the description given herein above. 4. Being aggrieved and dissatisfied with the aforesaid judgment of conviction recorded by the learned Court below, accused preferred an appeal before the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, Shimla, Himachal Pradesh, but same was dismissed vide judgment dated 29.06.2022. In the aforesaid background, accused has approached this Court in the instant proceedings, praying therein for his acquittal after setting-aside the judgment of conviction and order of sentence recorded by the learned Court below. 5. Vide order dated 28.07.2022, this Court stayed the substantive sentence imposed by the learned Court below subject to accused depositing 50% of the compensation amount awarded by the learned trial Court and furnishing personal bond in the sum of Rs.25,000/- with one surety in the 4 like amount within a period of four weeks. Aforesaid order stands complied with and 50% of the compensation amount deposited by the accused has been further ordered to be released in favour of the complainant. 6. Having heard learned counsel for the parties and perused material available on record vis-a-vis reasoning assigned in the impugned judgment passed by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, Shimla, Himachal Pradesh, whereby judgment of conviction and order of sentence recorded by the learned trial Court came to be upheld, this Court is not persuaded to agree with Mr. Rahul Gautam & Mr. Sative Chauhan, learned counsel for the accused, that learned Courts below have failed to appreciate the evidence in its right perspective, rather this Court finds that both the Courts below have dealt with each and every aspect of the matter meticulously and there is no scope left for this Court to interfere. Interestingly, in the case at hand, factum with regard to issuance of cheque as well as signatures thereupon never came to be disputed. Accused, in his statement recorded under Section 313 Cr.P.C., not only admitted factum with regard to his having issued cheque as well as signatures thereupon, but also admitted factum of his having received legal notice. He also attempted to carve out a case that cheque in question 5 was issued as security, which complainant failed to return after receipt of amount. Though accused was afforded opportunity to lead defence evidence, but he failed to do so. However, he tendered certain documents in his defence, which came to be exhibited as Ext.D-1, Ext.D-2, Ext.D-3, Ext.D-4, Ext.D-5 and Ext.D-6. It is also pertinent to take note of fact that accused replied to legal notice, wherein he claimed that amount otherwise sought to be claimed through cheque in question stands received by the complainant, but yet he is misusing the cheque issued as security. 7. In the case at hand, complainant, with a view to prove his case, examined himself as CW-3, who by way of tendering affidavit Ext. CW-1/A, reiterated the facts as averred in the complaint. Besides above, he also proved cheque Ext.CW-1/B, dishonour memo Ext.CW-1/C, legal notice Ext.CW-1/D, postal receipts Ext.CW-1/E & Ext.CW-1/F and UPC receipt Ext.CW-1/G. If the cross-examination conducted upon this witness is perused in its entirety, it can be safely concluded that accused was unable to extract anything contrary to what this witness stated in his examination- in-chief. In his cross-examination, he specifically denied that he had received the entire amount in his bank account. He also denied that accused had sent a letter dated 21.01.2011 Ext.D-2 to him vide postal 6 receipt Ext.D-3, wherein he had demanded his cheque back. While admitting that sum of Rs.40,000/- was deposited in his bank account, on 10.08.2010 vide receipt Ext.D-4, he clarified that this amount was deposited in his account prior to present transaction. While stating that accused had purchased materials from him on 09.09.2010, he stated that accused himself had handed over this cheque to him by filing date on it. While denying that the accused had also deposited sum of Rs.35,000/- vide receipt Ext.D-5 in his account on 17.09.2010, he clarified that afore amount of Rs.35,000/- was deposited by a relative of the accused namely Sanjeev as he had also purchased material from him. While admitting that accused had sent reply Ex.D-6 to his notice, he voluntarily stated that accused did not pay the cheque amount to him. Pattern of cross- examination conducted upon afore witness, coupled with the stand taken by the accused in his statement recorded under Section 313 Cr.P.C, clearly establishes factum with regard to issuance of cheque by the accused as well as signatures thereupon, and as such, no illegality can be said to have been committed by courts below, while invoking Sections 118 and 139 of the Act, which talk about presumption in favour of holder of cheque that cheque in question was issued towards discharge of lawful liability. 7 8. No doubt, aforesaid presumption is rebuttable, but to rebut such presumption person seeking to rebut such presumption is expected to raise probable defence. However, despite sufficient opportunities, accused failed to examine himself or lead in evidence in support of his case. Though certain documents Ext.D-1 to Ext.D-6 came to be placed on record by the accused, but perusal whereof nowhere suggests that accused had actually discharged his lawful liability, for which he had actually issued cheque. 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 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: 8 “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 138 can 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 9 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.” 10. During proceedings of the case, Mr. Rahul Gautam & Mr. Sative Chauhan, learned counsel for the accused, while referring to cross- examination of the complainant, stated that once complainant had 10 specifically admitted factum with regard to his having received Rs.40,000/-, defence otherwise taken by the accused stood probablized and thereafter, onus was upon the complainant to prove that aforesaid amount had not been received towards the transaction in question. However, this Court is not impressed with the aforesaid submission of Mr. Gautam for the reason that cheque in question was issued on 19.09.2010, whereas as per admission made by the accused in his cross-examination, sum of Rs.40,000/- was received by him on 10.08.2010 i.e. much prior to issuance of cheque. Similarly, complainant clarified that sum of Rs.35,000/-, received in his account on 17.09.2019 vide receipt Ext.D-5, was not related to the transaction in question, but pertained to some other transaction. Interestingly, no suggestion worth credence ever came to be put to the complainant with regard to other transaction. Had accused put specific suggestion with regard to so called second transaction, he would have been right in contending that onus was upon the complainant to prove that sum of Rs.35,000/-, received in his account after issuance of cheque, was in relation to some other transaction. Complainant specifically alleged that apple crop was purchased by the accused on 09.09.2010 for a sum of Rs.94,000/- on credit basis, but subsequently issued cheque No.252290 11 dated 19.09.2010 amounting to Rs.94,000/- towards discharge of lawful liability. Both the transactions amounting to Rs.40,000/- and Rs.35,000/-, which have been fairly admitted by the complainant, pertain to the period prior to the date of purchase of apple crop as well as issuance of cheque. This Court finds force in the submission made by learned counsel for the complainant that since liability to pay sum of Rs.94,000/- arose only on 09.09.2010, amount, if any, paid prior to afore date cannot be said to have any connection with the present transaction. Complainant, in his cross- examination, categorically stated that sum of Rs.35,000/- was received from person namely Sanjeev i.e. relative of the accused. However, aforesaid Sanjeev never came to be examined by the complainant, who otherwise could have been cited as a defence witness to probablize his defence that sum of Rs.35,000/- was deposited by him towards the sale/purchase of apple crop on 09.09.2010. Accused attempted to prove in the cross- examination of the complainant that, besides, there being payments of Rs.40,000/- and Rs.35,000/-, another sum of Rs.19,000/- was paid in presence of cashier of the complainant. In the cross-examination of the complainant, a suggestion came to be put on behalf of the accused that sum of Rs.19,000/- was paid in the office of the complainant in presence of 12 his cashier, however, afore cashier was never examined to substantiate the aforesaid plea. At this stage, it would be apt to take note of the fact that accused, in his reply to the legal notice, stated that sum of Rs.19,000/- was paid in presence of the manager as well as person namely Sanjeev, but none of them ever came to be examined. Though at this stage, learned counsel for the accused vehemently argued that by eliciting admissions from the complainant with regard to receipt of sum of Rs.40,000/- and Rs.35,000/-, accused had probablized his defence, as such, there was no occasion, if any, for him to examine cashier as well as other person namely Sanjeev, but this Court is not impressed with the aforesaid submission of learned counsel for the accused hereinabove. True it is that complainant admitted factum of his having received sum of Rs.35,000/- and Rs.40,000/-, but with clarification that these amounts were received prior to sale/purchase of apple crop on 09.09.2010, whereas cheque in question was issued on 19.09.2010. 11. In support of their aforesaid defence, they placed reliance upon the judgments passed by Hon’ble Apex Court as well as Delhi High Court in SLP (Crl.) No.3236 of 2023, titled as Chithra P. Nair Vs. Ravi Prasad & Anr.; Criminal Appeal No.1497 of 2022, titled as Dashrathbhai 13 Trikambhai Patel Vs. Hitesh Mahendrabhai Patel & Anr. and in Crl.L.P No.354 of 2012, titled as Niraj Vs. Ramsh Pratap Singh @ Raju Singh, but this Court, after having carefully perused aforesaid judgments, finds that the same are not applicable in the case at hand. 12. Having scanned the entire evidence adduced on record, this Court is not persuaded to agree with learned counsel for the accused that cheque was issued as security. Otherwise also, by now it is well settled that cheque, if issued as security, can also be sent for encashment, especially when debt for which cheque in question was issued exists on the date of the presentation of security cheque. 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 14 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. 15. 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 15 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.” 16. 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/ 16 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. 17. 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. 18. 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 one month to serve the sentence as awarded by the learned trial Court, if not already served. Interim direction, if any, stands vacated. Bail bonds, if any, are discharged. Pending applications, if any, also stand disposed of. May 27, 2026 (Sandeep Sharma), (sunil) Judge