1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Revision No.510 of 2024 Date of Decision: 15.05.2026 _________________________________________________________________________ Gulab Chauhan ……...Petitioner Versus Satish Mehta …....Respondent Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? For the Petitioner: Mr. Rajat Kumar, Advocate. For the Respondent: Mr. Paras Dhaulta, Advocate vice Mr. Raman Jamalta, 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 12.01.2024 passed by the learned Additional Sessions Judge-II, Shimla, District Shimla, Himachal Pradesh, in Criminal Appeal No.3536 of 2022, affirming the judgment of conviction and order of sentence dated 14.07.2022, passed by the learned Additional Chief Judicial Magistrate, Theog, District Shimla, H.P. in Criminal case No.407/3 of 2016, 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 one year and pay compensation to the tune of Rs.7,00,000/- 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, Court No.1, Rohru, District Shimla, H.P., alleging therein that accused approached complainant and purchased the apple produce of his orchard for a consideration of Rs.17,00,000/-, out of which accused made a payment of Rs.12,00,000/- on different dates. With a view to discharge his legally enforceable liability, accused issued two cheques i.e. cheque bearing No.010857 and 010858 dated 25.10.2014 and 30.10.2014 amounting to Rs.3,00,000/- & RS.2,00,000/-, respectively, drawn on State Bank of India, Shimla, District Shimla, Himachal Pradesh, in favour of the complainant, but aforesaid cheques on its presentation were 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 having received legal 3 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 14.07.2022, 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 Additional Sessions Judge-II, Shimla, District Shimla, Himachal Pradesh, but same was dismissed vide judgment dated 12.01.2024. 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 31.07.2024, this Court stayed the substantive sentence imposed by the learned Court below subject to accused depositing 30% of the compensation amount and furnishing personal bond in the sum of Rs.25,000/- with one surety in the like amount within a period of six 4 weeks, however, fact remains that aforesaid order was never complied with. Case file reveals that as many as ten opportunities were afforded to the accused either to deposit the amount or settle the dispute with the complainant, but in vain. In afore background, learned counsel for the accused, fairly stated that this Court may proceed to decide the case on its own merits. 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 Additional Sessions Judge-II, Shimla, District 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. Rajat Kumar, 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. 7. Evidence adduced on record by the complainant clearly reveals that with a view to discharge his legally enforceable liability amounting to Rs.5,00,000/-, accused issued two cheques i.e. cheque bearing No.010857 5 and 010858 dated 25.10.2014 and 30.10.2014 amounting to Rs.3,00,000/- & Rs.2,00,000/-, respectively, drawn on State Bank of India, Simla, District Shimla, Himachal Pradesh, in favour of the complainant, but aforesaid cheques on presentation were dishonoured with remarks “funds insufficient”. 8. Accused attempted to set up a defence that he had returned Rs.1,05,000/- two years back and Rs.1,05,000/- one year back and he needs 4-5 months’ time to discharge his entire liability. Aforesaid defence clearly establishes factum with regard to issuance of cheque as well as signatures thereupon. Besides above, he was unable to prove factum with regard to his having returned sum of Rs.3,00,000/- in total to the complainant. 9. In the case at hand, complainant, with a view to prove his case, examined himself as CW-1, who by way of tendering affidavit, reiterated the facts as averred in the complaint. He successfully proved on record that cheques Ext.CW1/A & Ext.CW1/B, return memos Ext.CW1/C & Ext.CW1/F, legal notices Ext.CW1/G & Ext.CW1/H, postal receipts Ext.CW1/J and Ext.CW1/K and acknowledgment Ext.CW1/L. If the cross- examination conducted upon this witness is perused in its entirety, it can 6 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 deposed that he is owner of 25 bighas of land. He deposed that he had planted 800 plants which yield 2000-2500 apple boxes. He deposed that no agreement was executed in the year 2014 for the sale of apple crop between him and the accused. He deposed that accused had issued duly filled-in cheques to him. He denied the suggestion that accused had paid Rs.14,00,000/- to him and voluntarily stated that he had received only Rs.13,50,000/-. He denied that apple contract was for a sum of Rs.14,00,000/-. He also denied that both the cheques were blank and had been issued as security. He denied that he had filled in the contents of the cheques in dispute. 10. CW-2 Rajan Sharma, who is Manager of the State Bank of India, Branch Deori, Khaneti Shimla, Himachal Pradesh, stated that State Bank of Patiala merged with the State Bank of India in April, 2017. He stated that record pertaining to cheque has been destroyed on 25.02.2021, copies whereof are Mark-X, Mark-Y and Mark-Z. He stated that Ext.CW1/E and Ext.CW1/F had been issued by Patiala Bank. He stated that Ext.CW1/A and Ext.CW1/B were presented in Patiala Bank. In his cross- 7 examination, he admitted that cheques Ext.CW1/A and Ext.CW1/B were not presented in his presence. He stated that Ext.CW1/E and Ext.CW1/F were not issued in his presence. He stated that he could not disclose the name of the manager who had signed the memos Ext.CW1/E and Ext.CW1/F. 11. CW-3 Ashish Saini, who was working as Junior Cashier of the State Bank of India, Main branch, Shimla, stated that service Branch had emerged with State Bank of India. He stated that cheques Ext.CW1/A and Ext.CW1/B were received by their branch, however, same got dishonoured due to insufficient funds in the bank account of the accused. In cross- examination, he feigned ignorance about the person who had signed the memos. 12. As has been taken note hereinabove, accused, while examining himself as DW-1, stated that on 21.03.2012, he had paid Rs.1,05,000/- to the complainant against receipt Ext.DX. Though accused attempted to set up two defences, firstly that sum of Rs.3,00,000/- was returned by him; and secondly, he had issued two blank cheques as security but same have been misused. However, evidence adduced on record by the accused nowhere suggests that he was able to probablize afore defences. Since 8 factum of issuance of cheques as well as signatures thereupon never came to be disputed, 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. 13. No doubt, aforesaid presumption is rebuttable, but to rebut such presumption person seeking to rebut such presumption is expected to raise probable defence. However, in the instant case, no probable defence ever came to be raised. 14. 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 9 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 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 10 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 15. 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 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. 12 16. 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. 17. Having scanned pleadings as well as evidence adduced on record by the complainant, this court finds that complainant successfully proved all the ingredients of Section 138 of the Act. Similarly, factum with regard to signatures and issuance of cheque by the accused towards discharge of lawful liability stands duly established on record. 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 recorded by the Courts below. In this regard, reliance is placed upon the judgment passed by 13 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. 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 14 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. 20. 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. 21. 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 fifteen days 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 15, 2026 (Sandeep Sharma), (sunil) Judge