Neutral Citation No. ( 2025:HHC:18360 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 446 of 2023 Reserved on: 14.05.2025 Date of Decision: 17.06.2025. Dinesh Kumar ...Appellant Versus Sanjeev Kumar Verma ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes For the Petitioner : Mr. Narain Singh Shandil, Advocate. For the Respondent : Mr. Ravinder Singh Chandel, Advocate. Rakesh Kainthla, Judge The present appeal is directed against the judgment dated 07.08.2023, passed by learned Additional Chief Judicial Magistrate, Theog, District Shimla (learned Trial Court) vide which, the complaint filed by the appellant (complainant before the learned Trial Court) was dismissed. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.) 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 Neutral Citation No. ( 2025:HHC:18360 ) 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 has an apple orchard. The accused used to purchase apples from various growers on a contract basis. The accused purchased an apple crop from the complainant in August 2015 for ₹15,00,000/-. The accused paid ₹1,00,000/- in cash and promised to pay ₹ 14,00,000/- after the sale of the apple crop in the market. The accused failed to pay the amount. The complainant demanded money from the accused and the accused issued three cheques for ₹3,00,000/-, 5,00,000/- and 6,00,000/- drawn on SBI, Khadapathar in favour of the complainant. The complainant presented the cheques before his Bank but these were dishonoured with an endorsement of ‘insufficient funds’. The complainant issued a notice asking the accused to pay the amount of ₹14,00,000/-. This notice was duly served upon the accused, however, the accused failed to pay the amount despite the receipt of a valid notice of demand; hence, the complaint was filed before the learned Trial Court for the 3 Neutral Citation No. ( 2025:HHC:18360 ) commission of an offence punishable under Section 138 of NI Act. 3. The learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, 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 himself (CW1) to prove his case. 5. The accused in his statement recorded under Section 313 of Cr.P.C. admitted his signatures on the cheques. He admitted that cheques were dishonoured with an endorsement of ‘funds insufficient’ and that the notice was issued to him. He stated that he had borrowed ₹5,00,000/- on interest @10%. He returned the amount of ₹5,00,000/-. Interest was not paid by him. The blank signed cheques were issued by him as security. He examined Akshay Kumar (DW1), and Dheeraj Negi (DW2) to prove his defence. 6. Learned Trial Court held that the issuance of the cheques was not disputed. There is a presumption that cheques 4 Neutral Citation No. ( 2025:HHC:18360 ) were issued in discharge of the legal liability for consideration. The plea taken by the accused that he had borrowed a sum of ₹5,00,000/- and had returned the principal was not probable. The complainant specifically stated that he had no dealings with the accused before 2015, however, the statement of account showed that the accused had deposited ₹2,00,000/- on 22.12.2014 and ₹10,000/- on 27.01.2015. The complainant failed to provide any explanation for the payment of ₹2,10,000/- on two occasions. This made the case of the complainant highly suspicious that the cheques were issued towards the payment of the apple crop; hence, the accused was acquitted. 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 failed to appreciate the evidence properly. The accused admitted his signatures on the cheques. The accused had purchased the apple crop in 2015 and the payments made on 22.12.2014 and 27.01.2015 were not connected to the present transaction. Therefore, it was prayed that the present appeal be allowed and the judgment passed by learned Trial Court be set aside. 5 Neutral Citation No. ( 2025:HHC:18360 ) 8. I have heard Mr. N.S. Shandil, learned counsel for the appellant/complainant and Mr. Ravinder Singh Chandel, learned counsel for the respondent/accused. 9. Mr. N.S. Shandil, learned counsel for the appellant/complainant submitted that the learned Trial Court erred in acquitting the accused. It was specifically asserted by the complainant that the accused had purchased apple crops from the complainant in the year 2015. The deposits made in the year 2014 and the beginning of 2015 were not connected to the present case. There is a presumption regarding the consideration, which was ignored by the learned Trial Court. He prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. 10. Mr. R.S. Chandel, learned counsel for the respondent/accused submitted that the evidence of the complainant was sufficient to rebut the presumption. This Court should not interfere with the reasonable view of the learned Trial Court while deciding an appeal against acquittal, therefore, he prayed that the present appeal be dismissed. 6 Neutral Citation No. ( 2025:HHC:18360 ) 11. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 12. 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 or omission to consider the material evidence and no reasonable person could 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 (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 7 Neutral Citation No. ( 2025:HHC:18360 ) 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 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 8 Neutral Citation No. ( 2025:HHC:18360 ) 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; 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 9 Neutral Citation No. ( 2025:HHC:18360 ) 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.” 13. A similar view was taken in Bhupatbhai Bachubhai Chavda v. State of Gujarat, 2024 SCC OnLine SC 523, wherein it was observed:- “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 10 Neutral Citation No. ( 2025:HHC:18360 ) 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 on the main question.” 14. The present appeal has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 15. The complainant specifically stated in his cross- examination that he had no transaction with the accused before 2015. He denied that the accused had taken ₹5,00,000/- as a loan from him in the year 2014. He denied that the accused had deposited ₹2,00,000/- in his account in the year 2014. 16. Akshay Kumar (DW1) brought the record of the Bank. He proved the statement of account (Ext. D1/DW1) and stated that an amount of ₹2,00,000/- was transferred by the accused to the complainant’s account. Similarly, Dheeraj Negi (DW2) also stated that as per the record, ₹2,00,000/- were transferred from 11 Neutral Citation No. ( 2025:HHC:18360 ) the account of the accused to the account of the complainant. Therefore, it was duly proved by the statement of these witnesses that the accused had transferred an amount of ₹2,00,000/- to the account of the complainant on 22.12.2014. 17. The complainant has not provided any explanation for the deposit of the money by the accused. Rather he specifically stated that he had no transaction with the accused before the year 2015. The deposit of ₹2,00,000/- in his account by the accused shows that the complainant is not making a correct statement and learned Trial Court was justified in discarding his statement. 18. It was submitted that the cheque is presumed to be issued for consideration in discharge of legal liability as per Sections 118 (a) and 139 of the N.I. Act. The accused did not provide any evidence to rebut this presumption and learned Trial Court erred in discarding the presumption. This submission will not help the complainant. It was laid down by the Hon’ble Supreme Court in Basalingappa v. Mudibasappa, (2019) 5 SCC 418: (2019) 2 SCC (Cri) 571: 2019 SCC OnLine SC 491 that the accused can rebut the presumption contained in 12 Neutral Citation No. ( 2025:HHC:18360 ) Sections 118 (a) and 139 of the NI Act by leading the evidence or cross-examining the complainant and his witnesses to show that his version is not reliable. It was observed at page 432: “25. We having noticed the ratio laid down by this Court in the above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in the following manner: 25.1. Once the execution of the cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. 25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. 25.4. That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden. 25.5. It is not necessary for the accused to come into the witness box to support his defence. 19. This position was reiterated in Rajaram v. Maruthachalam, (2023) 16 SCC 125: 2023 SCC OnLine SC 48 wherein it was observed at page 132: 25. It can thus be seen that this Court has held that once the execution of the cheque is admitted, Section 139 of the 13 Neutral Citation No. ( 2025:HHC:18360 ) NI Act mandates a presumption that the cheque was for the discharge of any debt or other liability. It has, however, been held that the presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. It has further been held that to rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. It has been held that inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. 20. A similar view was taken in S. Murugan v. M.K. Karunagaran, 2023 SCC OnLine SC 2041 wherein it was observed: 6. It is well settled that to rebut the presumption under Section 139 of the Negotiable Instruments Act, 1881, it is open to the accused not only rely on the evidence led by him but he can also rely on the materials submitted by the complainant, in order to raise a probable defence. The respondent's counsel relied on the ratio in Basalingappa v. Mudibasappa reported in (2019) 5 SCC 418 to say that the complainant here failed to discharge his burden. The relevant paragraph is extracted hereunder:— “25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference or preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.” 14 Neutral Citation No. ( 2025:HHC:18360 ) 21. In the present case, the cross-examination of the complainant made his statement in his examination-in-chief doubtful that cheques were issued for the payment of the apple crop. This was a reasonable view which could have been taken by the learned Trial Court based on the evidence led before it and this Court will not interfere with it while deciding an appeal against the acquittal even if another view is possible or this Court would have taken a different view while deciding the complaint. There is no perversity in this view and no interference is required with the judgment of the learned Trial Court. 22. No other point was urged. 23. In view of the above, the present appeal fails and the same is dismissed. 24. A copy of the judgment and the record of the learned Trial Court be sent back forthwith. (Rakesh Kainthla) Judge 17th June, 2025 (saurav pathania)