2025:HHC:24434 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 382 of 2023 Reserved on: 15.7.2025 Date of Decision: 28.07.2025. M/s Supreme Automobile ...Appellant Versus Hasan Ali and Anr. ...Respondents Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Appellant : Mr. Surinder Singh Saklani, Advocate. For Respondent No.1: Mr. K.B. Khajuria, Advocate. For Respondent No.2 : Mr. Tarun Pathak, Deputy Advocate General. Rakesh Kainthla, Judge The present appeal is directed against the judgment dated 29.4.2023, passed by learned Judicial Magistrate First Class, Court No.2, Mandi, District Mandi, H.P. (learned Trial Court), vide which the complaint filed by the appellant (complainant before the learned Trial Court) was dismissed. 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2025:HHC:24434 (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.) 2. Briefly stated, the facts giving rise to the present appeal are that the complainant filed a complaint before the learned Trial Court against the accused for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (in short, NI Act). It was asserted that the complainant is running a business in the name and style of M/s Supreme Automobile, which deals in the sale and repair of motor vehicles. The wife of the accused purchased a vehicle from the complainant on 16.6.2013. An amount of ₹1,59,642/- was due and recoverable. The accused promised to repay the amount. He issued a cheque of ₹1,50,000/- towards the repayment of the money. The cheque was dishonoured with an endorsement ‘funds insufficient’. The complainant served a notice upon the accused asking him to pay the amount within 15 days of the receipt of the notice. The notice was duly served upon the accused, but he failed to pay the money. Hence, the complaint was filed before the learned Trial Court to take action against the accused. 3 2025:HHC:24434 3. The learned Trial Court found sufficient reasons to summon the accused. When the accused appeared before the Court, a notice of accusation was put to him for the commission of an offence punishable under Section 138 of the NI Act, to which he pleaded not guilty and claimed to be tried. 4. The complainant examined Sanjay Bisht (CW1) to prove its case. 5. The accused, in his statement recorded under Section 313 of Cr.P.C., denied the case of the complainant. However, he admitted his signatures on the cheque. He stated that the cheque was issued at the time of the purchase of the vehicle. He stated that he wanted to lead defence evidence; however, he did not lead any evidence subsequently. 6. Learned Trial Court held that the cheque was dated 23.9.2013 and was returned vide memo dated 30.12.2013. There was no evidence that the cheque was presented within three months. Sanjay Bisht (CW1) admitted in his cross-examination that the wife of the accused had paid all the instalments, and it was wrongly mentioned in the complaint and the affidavit that the cheque was issued towards the repayment of the loan. 4 2025:HHC:24434 Hence, the ingredients of Section 138 of the NI Act were not satisfied, and the complaint was dismissed. 7. Being aggrieved from the judgment passed by the learned Trial Court, the complainant has filed the present appeal, asserting that the learned Trial Court erred in dismissing the complaint. The evidence was not appreciated from the right perspective. The accused admitted his signatures on the cheque, and the burden was upon him to rebut the presumption. He did not produce any evidence to rebut the presumption. It was issued inadvertently mentioned in the affidavit that the cheque was towards the purchase of the vehicle. The cheque was issued for the repair of the vehicle. Therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. 8. I have heard Mr. Surinder Singh Saklani, learned counsel for the appellant/complainant, Mr. K.B. Khajuria, learned counsel for respondent No.1/accused and Mr. Tarun Pathak, learned Deputy Advocate General, for respondent No.2- State. 5 2025:HHC:24434 9. Mr. Surinder Singh Saklani, learned counsel for the appellant/complainant, submitted that the learned Trial Court erred in dismissing the complaint. The accused admitted his signatures on the cheque and therefore, a presumption arose that the cheque was issued in discharge of the legal liability for consideration. The accused failed to rebut this presumption by leading any satisfactory evidence. He prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. 10. Mr. K.B. Khajuria, learned counsel for respondent No.1/accused, submitted that the learned Trial Court held that there was no evidence regarding the presentation of the cheque within three months. The cheque presented beyond three months will not give rise to any liability. There was no discrepancy in the evidence regarding the consideration or issuing of the cheque, and the learned Trial Court had rightly dismissed the complaint. A reasonable view was taken by the learned Trial Court, and no interference is required with it. Hence, he prayed that the present appeal be dismissed. 6 2025:HHC:24434 11. Mr. Tarun Pathak, learned Deputy Advocate General, for respondent No.2/State submitted that the State is not a party to the present litigation and an appropriate order be passed. 12. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 13. The present appeal has been filed against a judgment of acquittal. It was laid down by the Hon’ble Supreme Court in Surendra Singh v. State of Uttarakhand, 2025 SCC OnLine SC 176: (2025) 5 SCC 433 that the Court can interfere with a judgment of acquittal if it is patently perverse, is based on misreading of evidence, omission to consider the material evidence and no reasonable person would have recorded the acquittal based on the evidence led before the learned Trial Court. It was observed: “11. Recently, in the case of Babu Sahebagouda Rudragoudar v. State of Karnataka 2024 SCC OnLine SC 4035, a Bench of this Court to which one of us was a Member (B.R. Gavai, J.) had an occasion to consider the legal position with regard to the scope of interference in an appeal against acquittal. It was observed thus: “38. First of all, we would like to reiterate the principles laid down by this Court governing the scope of interference by the High Court in an appeal filed by the State for challenging the acquittal of the accused recorded by the trial court. 39. This Court in Rajesh Prasad v. State of Bihar [Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471: (2022) 2 SCC 7 2025:HHC:24434 (Cri) 31] encapsulated the legal position covering the field after considering various earlier judgments and held as below : (SCC pp. 482-83, para 29) “29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: (Chandrappa case [Chandrappa v. State of Karnataka, (2007) 4 SCC 415: (2007) 2 SCC (Cri) 325], SCC p. 432, para 42) ‘42. From the above decisions, in our considered view, the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate, and reconsider the evidence upon which the order of acquittal is founded. (2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on the exercise of such power and an appellate court, on the evidence before it, may reach its own conclusion, both on questions of fact and law. (3) Various expressions, such as “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc., are not intended to curtail the extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with an acquittal than to curtail the power of 8 2025:HHC:24434 the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused, having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed, and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” 40. Further, in H.D. Sundara v. State of Karnataka [H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581: (2023) 3 SCC (Cri) 748] this Court summarised the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378CrPC as follows: (SCC p. 584, para 8) “8. … 8.1. The acquittal of the accused further strengthens the presumption of innocence. 8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence; 8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record; 9 2025:HHC:24434 8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.” 41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate court for reversing the judgment of acquittal recorded by the trial court in favour of the accused has to be exercised within the four corners of the following principles: 41.1. That the judgment of acquittal suffers from patent perversity; 41.2. That the same is based on a misreading/omission to consider material evidence on record; and 41.3. That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.” 12. It could thus be seen that it is a settled legal position that the interference with the finding of acquittal recorded by the learned trial judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.” 14. A similar view was taken in Bhupatbhai Bachubhai Chavda, wherein it was observed:- 10 2025:HHC:24434 “6. It is true that while deciding an appeal against acquittal, the Appellate Court has to reappreciate the evidence. After re-appreciating the evidence, the first question that needs to be answered by the Appellate Court is whether the view taken by the Trial Court was a plausible view that could have been taken based on the evidence on record. Perusal of the impugned judgment of the High Court shows that this question has not been adverted to. The Appellate Court can interfere with the order of acquittal only if it is satisfied after reappreciating the evidence that the only possible conclusion was that the guilt of the accused had been established beyond a reasonable doubt. The Appellate Court cannot overturn the order of acquittal only on the ground that another view is possible. In other words, the judgment of acquittal must be found to be perverse. Unless the Appellate Court records such a finding, no interference can be made with the order of acquittal. The High Court has ignored the well-settled principle that an order of acquittal further strengthens the presumption of innocence of the accused. After having perused the judgment, we find that the High Court has not addressed itself to the main question.” 15. The present appeal has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 16. Learned Trial Court held that the memo of dishonour mentions the date of return as 30.12.2013, and the cheque was presented beyond the period of three months from the date of its issuance. This conclusion was drawn without any evidence. The cheque was dishonoured with an endorsement ‘funds insufficient’ and not with an endorsement ‘instrument outdated/stale'. Section 146 of the NI Act provides a 11 2025:HHC:24434 presumption of correctness to the memo of dishonour. It was laid down by the Hon’ble Supreme Court in Mandvi Cooperative Bank Ltd. v. Nimesh B. Thakore, (2010) 3 SCC 83: (2010) 1 SCC (Civ) 625: (2010) 2 SCC (Cri) 1: 2010 SCC OnLine SC 155 that the memo issued by the Bank is presumed to be correct. It was observed at page 95: “24. Section 146, making a major departure from the principles of the Evidence Act, provides that the bank's slip or memo with the official mark showing that the cheque was dishonoured would, by itself, give rise to the presumption of dishonour of the cheque, unless and until that fact was disproved.” 17. Therefore, some evidence was required to be led to establish that the cheque was presented beyond the period of three months from the date of its issuance, and it could not have been held without any evidence that the cheque was presented beyond the prescribed period. 18. It was specifically mentioned in the complaint and the affidavit that an amount of ₹1,59,642/- remained payable and recoverable on account of the purchase of a new vehicle by the wife of the accused, and the accused issued a cheque of ₹1,50,000/- to repay the amount. A similar averment was made in the affidavits (Ex.CA and Ex.CW1/Z). Sanjay Bisht admitted in 12 2025:HHC:24434 his cross-examination that he had mentioned in the complaint that the wife of the accused had purchased a new vehicle, and the cheque was issued towards the part payment of the sale consideration. He volunteered to say that the cheque was issued regarding the repair of the vehicle, and it was wrongly mentioned that the cheque was issued regarding the balance payment. He admitted that the wife of the accused had made a payment of the instalments, and it was wrongly mentioned in the complaint that the cheque was towards the balance price. He admitted that it was mentioned in the notice issued to the accused that the cheque was regarding the payment of the balance price. He volunteered to say that it was mentioned wrongly. 19. Therefore, it is apparent from the cross-examination of Sanjay Bisht (CW1) that the very premise of the complaint that the cheque was issued towards the balance payment of the new vehicle has been made doubtful. It was laid down by the Hon’ble Supreme Court in Dattatraya v. Sharanappa, (2024) 8 SCC 573, that where the complainant had made a contradictory 13 2025:HHC:24434 statement, this would shift the burden upon the complainant to prove the legal liability. It was observed: - “30. Admittedly, the appellant was able to establish that the signature on the cheque in question was of the respondent and in regard to the decision of this Court in Bir Singh [Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197: (2019) 2 SCC (Civ) 309: (2019) 2 SCC (Cri) 40], a presumption is to ideally arise. However, in the above- referred context of the factual matrix, the inability of the appellant to put forth the details of the loan advanced, and his contradictory statements, the ratio therein would not impact the present case to the effect of giving rise to the statutory presumption under Section 139 of the NI Act, 1881. The respondent has been able to shift the weight of the scales of justice in his favour through the preponderance of probabilities.” 20. The complainant relied upon the printout of the ledger from 1.4.2013 till 17.1.2014; however, the same does not mention that the amount was towards the payment of the repair of the vehicle. The opening balance of ₹10,90,000/- has been shown on 16.6 and ₹10,19,830/- has been credited by a cheque on 24.6. Total credit of ₹13,15,824/- has been shown. Sanjay Bisht (CW1) nowhere stated that the wife of the accused had got the vehicle repaired, and the cost of repair was ₹10,90,000/-. Hence, this statement of account contained in the ledger does not support the version of the complainant that the cheque was issued towards the repair of the vehicle, and the learned Trial 14 2025:HHC:24434 Court was justified in doubting the complainant’s version that the cheque was issued towards the discharge of legal liability. 21. Thus, the learned Trial Court had taken a reasonable view while dismissing the complaint and no interference is required with it while deciding the appeal against acquittal. 22. Consequently, the present appeal fails, and the same is dismissed. 23. A copy of the judgment and the record of the learned Trial Court be sent back forthwith. (Rakesh Kainthla) Judge 28th July, 2025 (Chander)