1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Revision No.847 of 2024 Date of Decision: 03.06.2026 _________________________________________________________________________ Sh. Raman Kumar Raghuvanshi ……...Petitioner Versus Bhupinder Verma …....Respondent Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? For the Petitioner: Ms. Shabnam, Advocate vice Mr. T.K. Verma, Advocate. For the Respondent: Mr. V.S. Rathore, Advocate, for the respondent. _________________________________________________________________________________ Sandeep Sharma, J. (Oral) Instant criminal revision petition filed under Section 438 read with Section 442 of Bharatiya Nagrik Suraksha Sanhita, lays challenge to judgment dated 04.09.2024 passed by the learned Sessions Judge, Shimla, Himachal Pradesh, in Criminal Appeal No.RBT 96-S/10 of 2024/22, affirming the judgment of conviction dated 25.08.2022 and order of sentence dated 27.08.2022, passed by the learned Additional Chief Judicial Magistrate, Court No.2, Shimla, Himachal Pradesh, in criminal Case No.256/3 of 2016, whereby the learned Court below, while holding the petitioner-accused (in short the "accused") guilty of having committed 2 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 eight months and pay compensation to the tune of Rs.5,50,000/- 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 in the competent Court of law, alleging therein that in the month of August 2013, the accused approached him and secured a debt of ₹4,00,000/- for publishing the books for the period of one year. After one year, accused issued four cheques amounting to 1,00,000/- each bearing No.000021, ₹ 000022, 000026 and 000027 dated 04.05.2016, drawn/payable at HDFC Bank, The Mall, Shimla, H.P. for lawful consideration and to discharge the aforesaid legally enforceable debt/liability due towards the complainant against Account No.50100075435540, however, 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 notice, 3 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 25.08.2022 and 27.08.2022, 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 Sessions Judge, Shimla, Himachal Pradesh, but same was dismissed vide judgment dated 04.09.2024. 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 30.12.2024, this Court stayed the substantive sentence imposed by the learned Court below subject to accused depositing 30% of the compensation amount in addition to the amount already deposited and furnishing personal bond in the sum of Rs.50,000/- with 4 one surety in the like amount within a period of eight weeks. However, fact remains that aforesaid order was never complied. This Court, taking note of the statement made by the learned counsel for the petitioner, referred the matter to mediation. Though accused agreed before the learned Mediator to pay the entire amount of compensation awarded by the learned trial Court, but fact remains that till date, not even a single penny has been paid. As per compromise arrived before learned Mediator, accused was required to pay entire amount of compensation on or before 16.02.2026, but yet this Court, taking note of the fact that accused had lost vision in his eyes, adjourned the mater to 27.04.2026, on which date petitioner stated that in terms of settlement, sum of Rs.1,15,000/- is lying deposited with the learned trial Court and sum of Rs.1,00,000/- has been paid to the complainant before the learned Mediator. He stated that apart from aforesaid amount, sum of Rs.20,000/- has also been paid to the complainant by way of Google Pay. On afore date, he categorically stated before this Court that remaining amount shall be paid to the complainant within four weeks. However, fact remains that needful has not been done, as such, this Court has no option but to decide the petition on its own merits. 5 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, 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 Ms. Shabnam, learned vice 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 refuted, rather accused, in his statement recorded under Section 313 Cr.P.C, denied that he had borrowed a sum of Rs.4,00,000/-. He claimed that complainant had invested Rs.2,00,000/- with a company known as Ram Survey on his recommendation. He denied that cheques were issued by him and alleged that blank security cheques were issued under the influence of threat by the complainant. Since factum with regard to issuance of cheque as well as signatures thereupon never came to be 6 disputed, no illegality otherwise can be said to have been committed by learned Courts below, while invoking Section 118 and 139 of the Act. 7. 8. In the case at hand, complainant, with a view to prove his case, examined himself as CW-1, who by way of tendering affidavit Ex.CW1/F, reiterated the facts as averred in the complaint. Besides above, he also proved on record the documents i.e. cheque No.000021 dated 04.05.2016 for a sum of 1,00,000/- as Ext.CW1/A1, cheque returning memo dated ₹ 05.05.2016 with respect to cheque No.000021 Ex.CW1/B1, cheque No.000022 dated 04.05.2016 for a sum of ₹ 1,00,000/- as Ext.CW1/A2, cheque returning memo dated 05.05.2016 with respect to cheque No.000022 Ex.CW1/B2, cheque No.000026 dated 04.05.2016 for a sum of ₹ 1,00,000/- as Ext.CW1/A3, cheque returning memo dated 05.05.2016 with respect to cheque No.000026 Ex.CW1/B3, cheque No.000027 dated 04.05.2016 for a sum of ₹ 1,00,000/- as Ext.CW1/A4, cheque returning memo dated 05.05.2016 with respect to cheque No.000027 Ex.CW1/B4, legal notice/statutory demand notice dated 19.05.2016 Ext.CW1/C, postal receipt Ext.CW1/D, acknowledgment Ex.CW1/E and copy of bank pass book Ex.CX. If the cross-examination conducted upon this witness is 7 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. He categorically stated that he had paid a sum of 4,00,000/- in the month of August, 2013 to the accused, for which he withdrew the afore amount from his account. He also placed on record copy of his bank pass book as Ex. CX, perusal whereof reveals that he withdrew sum of ₹2,70,000/- on 01.08.2013, 90,000/- on 17.08.2013 and 30.000/- on ₹ 26.08.2013. It clearly establishes from the afore document that complainant had withdrawn Rs.3,90,000/- from his account for further paying it to the accused. Besides above, complainant also proved that he was having financial capacity to pay sum of Rs.4,00,000/- and from aforesaid passbook entries, it can safely be inferred that he had withdrawn the aforesaid amount to pay it to the accused. 9. Accused attempted to set up a defence that complainant failed to prove that any money had been borrowed by him as no such transaction record was placed on file. Accused also attempted to set up a defence that there was an overwriting in cheque Ext.CW-1/A1, however, such cheques were not dishonoured for the reasons of “funds insufficient” and due to said reason, aforesaid defence that there was an overwriting in cheque may not 8 be of any help to the accused. Accused also claimed that he did not receive any legal notice. However, complainant, during his cross-examination, admitted that as per AD Card Ext.CW-1/E, said AD Card was not signed by the accused, but by one Rajinder Singh and accused, while pointing out towards aforesaid fact, alleged that he never received any legal notice. Since address mentioned in the legal notice was never disputed by the accused, rather on the same address, accused was served at the time of presentation of complaint, no illegality can be said to have been committed by the courts below, while presuming service of legal notice upon the accused. Moreover, as has been taken note hereinabove, no specific denial ever came to be put- forth by the accused with regard to his having borrowed sum of Rs.4,00,000/-, rather in his statement recorded under Section 313 Cr.P.C, he stated that blank cheques were obtained by the complainant, but such defence never came to be probablized. Moreover, by now it is well-settled that even blank cheques can be presented before the bank for encashment, especially when liability, qua which cheque came to be issued is shown to be existing on the date of issuance of cheque. 10. No doubt, aforesaid presumption is rebuttable, but to rebut such presumption person seeking to rebut such presumption is expected to 9 raise probable defence. However, in the instant case, no probable defence ever came to be raised. 11. 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: “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 10 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. 11 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.” 12. 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 12 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. 13. 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 13 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. 14. Leaving everything aside, in the case at hand, accused himself agreed to pay the entire amount of compensation before learned Mediator. Though pursuant to settlement, accused deposited part of the agreed amount, as has been noticed hereinabove, but despite repeated opportunities failed to deposit the balance amount. By way of depositing part of the agreed amount in terms of compromise arrived before learned Mediator, accused had virtually admitted his liability. 15. 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. 14 16. Moreover, this Court has a very limited jurisdiction under Section 397 of the Cr.PC, 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.” 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 15 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 surrender himself before the learned trial Court within 30 days to serve the sentence as awarded by the learned trial Court, if not already served. Interim direction, 16 if any, stands vacated. Bail bonds, if any, are discharged. Pending applications, if any, also stand disposed of. 20. Amount, if any, lying deposited by the accused with the Registry of this court as well as learned trial Court is ordered to be released in favour of the complainant by remitting the same in its saving bank account, detail whereof, shall be furnished within a period of one week. June 03, 2026 (Sandeep Sharma), (sunil) Judge