1 ( 2025:HHC:33763 ) IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Revision No.427 of 2024 Date of Decision: 23.09.2025 M/s Beat Route Cafe & Restaurant & Anr. …Petitioners Versus Rajan Chopra …..Respondent Coram: The Hon’ble Mr. Justice Virender Singh, Judge. Whether approved for reporting? For the Petitioners : Petitioner No.2 in person with Mr. Panku Chaudhary, Advocate. For the Respondent : Mr. Ashok Kumar, Advocate. Virender Singh, Judge ( Oral) Petitioners have filed the present criminal revision, under Sections 438/442 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as the BNSS’) against the judgment dated 13.05.2024, passed by the learned Sessions Judge, Kullu, District Kullu, H.P., (hereinafter referred to as the ‘Appellate Court’). 2. By way of judgment dated 13.05.2024, the learned Appellate Court has dismissed the appeal, filed by the petitioners, bearing Criminal Appeal Registration No.50 of 2023, titled as M/s Beatroute Care & Restaurant & Anr. Versus Rajan Chopra. The petitioners had preferred the said appeal, against the judgment of 2 ( 2025:HHC:33763 ) conviction and order or sentence dated 11.08.2023, passed by the Court of learned Judicial Magistrate First Class, Manali, District Kullu, H.P., (hereinafter referred to as the ‘trial Court’). 3. Vide judgment of conviction and order of sentence, as referred to above, the learned trial Court has convicted the petitioners for the offence punishable under Section 138 of the Negotiable Instruments Act, (hereinafter referred to as ‘the N.I. Act), and petitioner No.2 was directed to undergo simple imprisonment for a period of six months and to pay a compensation of Rs.2,35,000/-. 4. For the sake of convenience, the parties to the present lis, are hereinafter referred to, in the same manner, as were, referred to, by the learned trial Court. 5. Brief facts, leading to the filing of the present Criminal Revision, before this Court, may be summed up, as under:- 5.1. Complainant-Rajan Chopra has filed a complaint, under Section 138 of N.I. Act, against the accused persons M/s Beatroute Care & Restaurant through its Proprietor Sujet Kumar Gupta, before the learned trial Court, on the ground that on 30.04.2019, accused No.2, had approached the complainant for borrowing the money to conduct his day-to-day business, as he was in dire need of money to expand his business. As such, he 3 ( 2025:HHC:33763 ) has borrowed a sum of Rs.2,00,000/- from the complainant with the assurance that he will repay the amount, after setting up his business and for repayment of the same, he has issued one post dated Cheque bearing No.446085, dated 18.09.2021 for a sum of Rs.2,00,000/-, drawn on Punjab National Bank, Branch Manali, District Kullu, H.P. 5.2. The cheque in question, as per the complaint, was given with the assurance that as and when, the same will be presented for its encashment, the same would be honoured. Consequently, the complainant had presented the cheque in question, for payment with his banker i.e. Punjab National Bank, Branch Manali, District Kullu, H.P., on 18.09.2021. The banker of the complainant further forwarded the same to the banker of the accused for clearance, but, the said cheque in question was dishonoured by the banker of the accused for the reason that the person, who had issued the cheque, was not having the sufficient fund in his account. The said intimation was given by the banker, vide memo dated 21.09.2021. Thereafter, the requisite notice was issued to the accused persons, calling upon them, to pay the amount of Rs.2,00,000/- within a period of 15 days from the receipt of the notice. 4 ( 2025:HHC:33763 ) 5.3. It is the further case of the complainant that despite service of the notice, neither the same has been replied, nor, the amount, as claimed, in the notice has been paid. As such, the complainant has prayed before the learned trial Court that action be taken against the accused for the commission of the offence punishable under Section 138 of the N.I. Act. 5.4. On the basis of the complaint, as well as, the documents annexed with the complaint, the learned trial Court found a prima-facie case for proceeding against the accused, as such, the notices were ordered to be issued against the accused persons, vide order dated 29.10.2021. 5.5. After securing the presence of the accused, the learned trial Court found a prima-facie case, punishable under Section 138 of the NI Act, as such, Notice of Accusation was put to accused No.2, vide order dated 07.04.2021, to which, he has pleaded not guilty and claimed trial. As such, the complainant was directed to adduce his evidence. Consequently, in order to prove the Notice of Accusation, the complainant has himself stepped into the witness box and tendered his affidavit in examination in chief. 5.6. After closure of the evidence of the complainant, the entire incriminating evidence was put to the accused No.2, in his statement recorded, under Section 313 of Cr.P.C., when, the 5 ( 2025:HHC:33763 ) incriminating evidence was put to accused No.2, he has denied entire case of the complainant and took the defence that he is innocent person, however, accused No.2 has not led any evidence in his defence. The learned trial Court, after hearing learned counsel appearing for the complainant, as well as, learned counsel appearing for the accused had convicted the accused, vide judgment of conviction and order of sentence dated 11.08.2023. 5.7. Against the said judgment of conviction and order of sentence, the accused persons have preferred the appeal before the learned Appellate Court, assailing the judgment of conviction and order of sentence, however, the learned Appellate Court has dismissed the appeal, vide judgment dated 13.05.2024. 5.8. Now, the accused persons are before this Court, by way of the present criminal revision. 5.9. The judgment of conviction and order of sentence, as passed by the learned trial Court and upheld by the learned Appellate Court has been assailed mainly on the ground that the judgment of conviction and order of sentence has been passed ignoring the provisions, as contained, in Section 138 of the N.I. Act, as the accused persons in the present case have duly rebutted the presumption, under Sections 118 and 139 of the N.I. 6 ( 2025:HHC:33763 ) Act, while probabilizing the fact that the cheque in question was not issued by them for consideration in discharge of the debt. 5.10. The findings have further been assailed on the ground that learned trial Court has not considered the evidence, so adduced, on the file, in its totality and only certain portion of the evidence has been considered. 5.11. According to the accused persons, the complainant has miserably failed to prove the fact that there was no pre- existing debt or liability, as claimed, by the complainant and the money, which was allegedly borrowed by the accused persons was duly repaid to the complainant. 5.12. On the basis of the above facts, Mr. Panku Chaudhary, Advocate, appearing for the accused persons, has prayed that the criminal revision may kindly be allowed by setting aside the judgment of conviction and order of sentence, passed by the learned trial Court, as upheld by the learned Appellate Court. 5.13. The prayer, so made, has been opposed by Mr. Ashok Kumar, Advocate, appearing for the complainant, on the ground that the learned trial Court has rightly considered the evidence, so adduced by the complainant and there is nothing on the file from which the accused persons can be said to have probabilized their defence, in the present case. 7 ( 2025:HHC:33763 ) 6. On the basis of the above facts, a prayer has been made to dismiss the appeal. 7. Heard. 8. In order to decide the matter effectively, it would be just and appropriate, for this Court to discuss the evidence, so adduced, by the complainant, before the learned trial Court. 9. As stated above, when, the Notice of Accusation was put to accused No.2, in this case, he has not pleaded guilty, then, the complainant was directed to adduce evidence. 10. In order to prove his case, the complainant has put appearance in the witness box and filed the affidavit Ext.CW-1 and deposed about the case, as pleaded in the complaint. Not only this, he has also tendered the cheque in question as Ext.C2/CW- 1. The memo issued by the bank has been tendered in evidence as Ext.C4/CW-1, in which, it has specifically been mentioned that the reason for dishonouring the cheque is that the person, who had issued the cheque is not having the sufficient amount in his account. Apart from this, the legal notice, postal receipt and acknowledgment have also been tendered in evidence. 11. In cross examination, this witness has admitted that orally, he does not remember, as to how many cases are pending in the Court, which have been filed by him. He has 8 ( 2025:HHC:33763 ) denied the suggestion that he has filed number of cases, involving an amount of Rs.50,00,000 to Rs.60,00,000/-. The efforts of learned counsel appearing for the accused remain futile as this witness has denied each and every suggestion which have been put to the complainant in order to probabilize the defence with regard to his economic condition, to advance such a huge amount of Rs.2,00,000/-, to the accused. 12. As stated above, when the statement was recorded under Section 313 of Cr.PC, the accused has admitted borrowing a sum of Rs.1,00,000/- as in reply to question No.3, he has denied the fact that a sum of Rs.2,00,000/- was borrowed by him, however, he has admitted that he has borrowed only a sum of Rs.1,00,000/-. He has taken a plea that the three cheques bearing his signatures were obtained and according to him, the amount of Rs.1,00,000/- has been already deposited by him. 13. It has rightly been highlighted by the learned counsel appearing for the complainant in this case that from the cross examination of the complainant, the accused has miserably failed to prove his defence with regard to the fact that he has borrowed only a sum of Rs.1,00,000/-, which he had returned back to the complainant . The accused is free to prove/probabilize his defence from the cross examination of the complainant, or, his 9 ( 2025:HHC:33763 ) witnesses, or, by examining the witnesses in order to prove his defence. In the present case, except for leading the suggestion, nothing is there on the file, from which, it can be said that accused has probabilized his defence. 14. Moreover, considering the limited scope of this Court in the revisional jurisdiction, the evidence, so adduced, by the complainant, so adduced before the learned trial Court, which has been discussed by the learned trial Court, as well as, by the learned Appellate Court, cannot be re-appreciated by this Court. 15. Moreover, when the issuance of the cheque has been admitted by the accused, in that eventuality, onus lies upon him to prove/probabilize his defence with regard to the fact that there was no existing liability, for which, he had issued the cheque in question. 16. Keeping in view the tone and tenure of the cross examination, the issuance of the cheque has not been disputed however, a futile attempt has been made to probabilize the defence that the complainant was not having the sufficient funds to advance the loan of Rs.2,00,000/- to the accused persons. 17. Considering the said fact, there is no occasion for this Court to differ with the findings of the learned trial Court, by virtue 10 ( 2025:HHC:33763 ) of which, the accused have been convicted for the offence punishable under Section 138 of the N.I.Act. 18. In this case, during the pendency of the Criminal Revision, the accused have deposited the entire amount of compensation i.e. Rs.2,35,000/-. The accused persons have moved the application under Section 147 of the N.I. Act, however, the offer, so made, by the accused, has not been accepted by the complainant. Hence, the application has been dismissed, as not pressed, by this Court, vide order dated 25.08.2025. 19. Considering the said fact, now, the next question, which arises for determination, before this Court, is as to whether, the punishment, which has been inflicted, in the present case, is sustainable in the eyes of law, or not. 20. The learned trial Court, in the present case, while convicting and sentencing the accused persons for the commission of offence punishable under Section 138 of the N.I. Act, has directed the accused to undergo simple imprisonment for a period of six months and to pay a compensation of Rs.2,35,000/-. 21. Admittedly, the complainant has not filed any appeal for enhancement of the punishment/compensation, as imposed by the learned trial Court. In the absence of any statutory Rules, 11 ( 2025:HHC:33763 ) regarding the sentencing policy, the sentencing part has been left to the judicial discretion of the learned trial Court. 22. Considering the peculiar facts and circumstances of the present case, according to which, amount of compensation has been deposited by the accused, this Court is of the view that the order of sentence is liable to be interfered, as law is good, but justice is better. While, sentencing the accused, the Court must consider the benefit derived by the accused from the offence for which, he has been convicted. Considering the said fact, this Court is of the view that the punishment in the present case is on the higher side. 23. The view is fortified by the decision of the Hon’ble Supreme Court in P. Mohanraj and others versus Shah Brothers Ispat Private Limited, (2021) 6 SCC 258. Relevant paragraph 45, of the judgment, is reproduced, as under:- “45. Section 138 contains within it the ingredients of the offence made out. The deeming provision is important in that the legislature is cognizant of the fact that what is otherwise a civil liability is now also deemed to be an offence, since this liability is made punishable by law. It is important to note that the transaction spoken of is a commercial transaction between two parties which involves payment of money for a debt or liability. The explanation to Section 138 makes it clear that such debt or other liability means a legally enforceable debt or other liability. Thus, a debt or other liability barred by the law of limitation would be outside the scope of Section 138. This, coupled with fine that may extend to twice the amount of the cheque that is payable as compensation to the aggrieved party to cover both the amount of the cheque and the interest and costs 12 ( 2025:HHC:33763 ) thereupon, would show that it is really a hybrid provision to enforce payment under a bounced cheque if it is otherwise enforceable in civil law. Further, though the ingredients of the offence are contained in the first part Section 138 when the cheque is returned by the bank unpaid for the reasons given in the Section, the proviso gives an opportunity to the drawer of the cheque, stating that the drawer must fail to make payment of the amount within 15 days of the receipt of a notice, again making it clear that the real object of the provision is not to penalise the wrongdoer for an offence that is already made out, but to compensate the victim.” (self emphasis supplied) 24. In the light of the aforesaid decision and considering the fact that under the NI Act, no minimum punishment has been provided, for the offence, punishable under Section 138 of the NI Act, this Court is of the view that the quantum of punishment is liable to be modified. Consequently, the ends of justice would be met, in case, the accused is sentenced to undergo punishment ‘till the rising of the Court. 25. In view of the above, the judgment of conviction, passed by the learned trial Court, is upheld, but, the appeal is partly allowed, to the extent of quantum of sentence, by modifying the same, as mentioned above. 26. Pending miscellaneous applications, if any, are disposed of accordingly. 27. Send down the record. (Virender Singh) Judge September 23, 2025 (subhash)