THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No.269 of 2023 Date of Decision: 08.04.2026 _______________________________________________________ Raju Ram …….Petitioner Versus Parvesh Kumar & another … Respondents _______________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 For the Petitioner : Ms. Shrutika, Advocate vice Mr. Dheeraj K. Vashishta, Advocate. For the Respondents : Mr. Neeraj Maniktala, Advocate (through video conferencing), for respondent No.1. Mr. Rajan Kahol & Mr. Vishal Panwar, Additional Advocate Generals with Mr. Ravi Chauhan Deputy Advocate General, for the respondent/State. _______________________________________________________ Sandeep Sharma, Judge(oral): Instant Criminal Revision Petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure, lays challenge to judgment dated 20.04.2023 passed by learned Additional Sessions Judge, Paonta Sahib, District Sirmour, Himachal Pradesh, in Criminal Appeal No.75-N/10 of 2019, affirming judgment of conviction dated 10.06.2019 and order of sentence dated 13.06.2019, passed by learned Judicial Magistrate, First Class, Court 1Whether the reporters of the local papers may be allowed to see the judgment? 2 No.2, Paonta Sahib, District Sirmaur, Himachal Pradesh, in criminal case No.126 of 2017, titled Pravesh Kumar vs. Raju, whereby learned trial Court, while holding petitioner-accused ( hereinafter referred to as the ‘accused’) guilty of his having committed an offence punishable under Section 138 of the Negotiable Instruments Act(for short ‘Act’), convicted and sentenced him to undergo simple imprisonment for a period of two years and pay compensation to the tune of Rs.3,90,000/- to the respondent-complainant. 2. Precisely, the facts of the case, as emerge from the pleadings as well as other documents adduced on record by the respective parties, are that respondent No.1-complainant (hereinafter referred to as the ‘complainant’) filed a complaint under Section 138 of the Act in the competent Court of law, alleging therein that he purchased a truck bearing registration No. HR-46C-7177 and aforesaid truck was financed by Shri Ram Finance Company. He alleged that due to some financial problem, he was unable to pay the monthly installments of the loan amount and as such, he expressed his desire to sell the aforesaid truck. He alleged that in December, 2015, one Karan Pal approached him for purchase of truck and at that time accused Raju was also present there and accordingly, an agreement was entered between him and Karan Pal on 18.12.2015. He alleged that in terms of afore agreement, one cheque was given 3 by Karan Pal and other of Rs. 3, 50,000/- by the accused, drawn at UCO Bank Badripur Branch, Paonta Sahib, having No. 155911. As per terms and conditions of agreement, accused promised to pay monthly installment of finance company and to secure the installment amount. However, afore person defaulted in making payments, as a result thereof, complainant received notice from the Financer. Though, at first instance, complainant requested the accused to pay the monthly installment as agreed, but once he failed to do so, complainant presented the cheque of accused for encashment in the bank i.e. H.P. State Co-operative Bank Ltd. Branch Salwala Puruwala, Tehsil Paonta Sahib, but same was dishonoured with the remarks funds insufficient in the account of the accused vide memo dated 19.10.2016. After receipt of aforesaid return memo, complainant sent legal notice dated 11.11.2016 to the accused through registered letter, calling upon him to make the payment good within stipulated time, but since accused failed to make the payment good within stipulated time, complainant had no option, but to initiate proceedings under Section 138 of the Act in the competent Court of law, which subsequently, on the basis of evidence adduced on record by the respective parties, held the accused guilty of his having committed offence punishable under S. 138 of the Act and 4 accordingly, convicted and sentenced him as per description given herein above. 3. Being aggrieved and dissatisfied with the aforesaid judgment of conviction and order of sentence recorded by learned trial Court, present petitioner-accused preferred an appeal in the Court of learned Additional Sessions Judge, Paonta Sahib, District Sirmour, Himachal Pradesh, but same also came to be dismissed vide judgment dated 20.04.2023. In the aforesaid background, petitioner- accused has approached this Court in the instant proceedings, praying therein for his acquittal after quashing and setting aside the impugned judgment of conviction and order of sentence recorded by Courts below. 4. Vide order dated 22.05.2023, this Court suspended the substantive sentence imposed by Court below, subject to petitioner- accused depositing 50% of the compensation amount and furnishing personal bonds in the sum of Rs. 40,000/- with one surety in the like amount to the satisfaction of learned trial Court within a period of four weeks. 5. Pursuant to afore order, this Court came to be informed at the behest of the accused that sum of Rs.87,500/- has been deposited with the learned trial Court and sum of Rs. 1,07,500/- in the Registry of this Court. It also came to be undertaken at the behest 5 of the petitioner-accused that remaining sum of Rs. 95,000/- shall be deposited on or before the next date 6. of hearing i.e. 21.09.2023, but fact remains that despite repeated opportunities, afore order never came to be complied with. More than 10 opportunities were granted to the petitioner to deposit the remaining amount, but in vain. Today, during the proceedings of the case, learned counsel representing the petitioner fairly stated that since petitioner is not coming forward to impart instructions and he has not complied with order passed by this Court, this Court may proceed to decide the petition on its own merits. 7. Having heard learned counsel representing the parties and perused material available on record vis-à-vis reasoning assigned in the impugned judgments of conviction and order of sentence recorded by Courts below, this Court is not persuaded to agree with learned counsel for the petitioner-accused that both the Courts below have failed to appreciate the evidence in its right perspective, 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. In his statement recorded under Section 313 Cr.P.C though accused denied the factum of his having issued cheque, but he admitted factum with regard to dishonour of the cheque on account 6 of insufficient fund in his account. Similarly, he has also not denied factum with regard to his having received legal notice. He attempted to set up a defence that cheque in question was lying in his purse, but it was lost somewhere and subsequently came to be misused by the complainant. Though, accused was afforded opportunity to lead evidence in defence, but he failed to avail that opportunity. 9. Once factum with regard to issuance of cheque as well as signatures thereupon never came to be disputed at the behest of the accused, Courts below rightly invoked Sections 118 and 139 of the Act, which speak about presumption in favour of the holder of the cheque that cheque was issued towards discharge of lawful liability. No doubt, aforesaid presumption is rebuttable, but to rebut such presumption, accused either can refer to the documents and evidence led on record by the complainant or presumption can be rebutted by leading positive evidence, if any. However, in the instant case, despite sufficient opportunities, petitioner-accused failed to lead any evidence and as such, he otherwise failed to probablize the defence, sought to be raised by him, while deposing under Section 313 Cr.P.C. 10. 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 7 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 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 8 the materials submitted by the complainant in order to raise such a defence and it is inconceivable that in some cases the accused may not need to adduce the evidence of his/her own. If however, the accused/drawer of a cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability, obviously statutory presumption under Section 139 of the NI Act regarding commission of the offence comes into play if the same is not rebutted with regard to the materials submitted by the complainant. 25. It is no doubt true that the dishonour of cheques in order to qualify for prosecution under Section 138 of the NI Act precedes a statutory notice where the drawer is called upon by allowing him to avail the opportunity to arrange the payment of the amount covered by the cheque and it is only when the drawer despite the receipt of such a notice and despite the opportunity to make the payment within the time stipulated under the statute does not pay the amount, that the said default would be considered a dishonour constituting an offence, hence punishable. But even in such cases, the question whether or not there was lawfully recoverable debt or liability for discharge whereof the cheque was issued, would be a matter that the trial court will have to examine having regard to the evidence adduced before it keeping in view the statutory presumption that unless rebutted, the cheque is presumed to have been issued for a valid consideration. In view of this the responsibility of the trial judge while issuing summons to conduct the trial in matters where there has been instruction to stop payment despite sufficiency of funds and whether the same would be a sufficient ground to proceed in the matter, would be extremely heavy. 11. To the contrary, complainant, while examining himself as CW-1, specifically proved factum with regard to his having received cheque Ex. CW1/A issued by the accused towards discharge of lawful liability. He also proved on record return memo Ex. CW1/B to prove that after presentation of the cheque, same was returned on account 9 of insufficient funds in the bank account of the accused. He also proved on record that prior to institution of proceedings under Section 138 of the Act, he served accused with legal notice Ex.CW1/D and same was duly received by the accused, as has been fairly admitted by him in his statement recorded under Section 313 Cr.P.C, but yet he neither filed reply to the same nor made the payment. Cross-examination conducted upon this witness, if perused in its entirety, nowhere suggests that accused was able to extract anything contrary to what this witness stated in his examination-in- chief. In his cross-examination, this witness stated that no agreement regarding the sale of truck to the accused was prepared. He further admitted that there is overwriting over Ex. CW1/D. While feigning ignorance about overdue amount of the truck, he self stated that total amount of truck was Rs. 6, 40,000/-. He specifically stated that he had not defaulted in any installment of the truck and denied suggestion put to him that he had entered into an agreement with Karan Pal for sale of aforesaid truck, as per which, he had to pay the default amount and Karan Pal had to drive the truck. He denied the suggestion put to him that till June, 2016 accused paid the entire installments to him, but he did not deposit the installment with the finance company. 12. At the cost of repetition, in his statement recorded under Section 313 Cr.P.C accused denied factum of his having issued 10 cheque, but once he admitted factum with regard to dishonour of the cheque on account of insufficient funds, coupled with the fact that at no point of time, he lodged complaint, if any, with regard to missing of the cheque, courts below rightly invoked Sections 118 and 139 of the Act. Similarly, factum with regard to issuance of legal notice prior to initiation of proceedings under Section 138 of the Act came to be admitted at the behest of the accused, but once after receipt of afore notice, he failed to file reply to the same virtually he admitted contents of the same. If he had no liability, if any, towards complainant, he would have replied to the legal notice. 13. In the case at hand, accused filed an application under Section 391of Cr.P.C to produce/examine the additional witnesses to the written agreement dated 18.12.2015 and the agreement was that if the installment were left out only then said cheques were to be used to pay the installments and the cheques were given as security cheque. Afore prayer made on behalf of the accused was contested on the ground that allowing afore application would amount to de- novo trial. Once agreement was in the knowledge of the accused and he did not put it to the complainant or brought the said defence, application filed at the behest of the accused under aforesaid provisions of law rightly came to be dismissed. 11 14. Having scanned the entire evidence adduced on record by the respective parties, this Court finds that all the basic ingredients of Section 138 of the Act are met in the case at hand. Similarly, factum with regard to signatures and issuance of cheque by the accused towards discharge of lawful liability stands duly established on record. 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 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. 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 12 judgments, there is no occasion, whatsoever, to exercise the revisional power. 17. 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. 18. 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. 19. Accordingly, the present criminal revision petition is dismissed being devoid of any merit. The petitioner is directed to 13 surrender himself before the learned trial Court within a period of 15 days to serve the sentence as awarded by the learned trial Court, if not already served. Bail bonds of the petitioner are cancelled. Interim direction, if any, stands vacated. Pending applications, if any, also stand disposed of. (Sandeep Sharma), Judge April 08, 2026 (shankar)