1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Revision No.698 of 2025 Date of Decision: 22.05.2026 _________________________________________________________________________ Kuldeep Singh ……...Petitioner Versus Satpal Singh & Anr. …....Respondents Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? For the Petitioner: Mr. Rahul Sharma, Advocate. For the Respondents: Mr. Narender Singh Thakur, Advocate, for respondent No.1. Mr. Rajan Kahol & Mr. Vishal Panwar, Additional Advocates General with Mr. Ravi Chauhan & Mr. Anish Banshtu, Deputy Advocates General, for respondent No.2-State. _________________________________________________________________________________ Sandeep Sharma, J. (Oral) Instant criminal revision petition filed under Section 438 read with Section 442 of Bharatiya Nagrik Suraksha Sanhita, 2023, lays challenge to judgment dated 01.11.2025 passed by the learned Additional Sessions Judge, Sarkaghat, District Mandi, Himachal Pradesh, in Criminal Appeal No.10 of 2024, affirming the judgment of conviction dated 19.01.2024 and order of sentence dated 27.02.2024, passed by the learned Additional Chief Judicial Magistrate, Sarkaghat, District Mandi, Himachal 2 Pradesh, in Criminal Complaint No.15 of 2017, whereby the learned Court below, while holding the petitioner-accused (hereinafter "accused") guilty of having committed 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 one year and pay compensation to the tune of Rs.2,00,000/- to respondent No.1-complainant (hereinafter "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 competent Court of law, alleging therein that complainant’s wife was running a shop of fabrication in the name and style of M/s Nav-Nirman at lower Bazar, Sarkaghat, District Mandi, Himachal Pradesh. He alleged that on 07.11.2013, he engaged the accused to file his quarterly sale tax on account of his wife business and on the same day, paid sum of Rs.13,000/- on account of sale tax liability. He stated that since then, he had been paying quarterly sales tax to the accused and till 30.09.2016, had paid a total sum of Rs.1,59,185/-. He alleged that on 06.12.2016, he, after having visited the office of Excise and Taxation Officer at Lower Bazaar Sarkaghat, 3 came to know that accused had deposited only three or four installments on account of sales tax and thereafter, he contacted the accused telephonically, whereupon the accused apologized for the same and assured him that the entire sales tax amount would be deposited on or before 13.12.2016. He alleged that on 13.12.2016, in discharge of aforesaid liability, accused issued a cheque bearing No.026635 dated 13.12.2016 for an amount of Rs.1,59,185/-, drawn on State Bank of Patiala, Branch Office Sarkaghat, District Mandi, Himachal Pradesh, in favour of the complainant towards lawful consideration. However, aforesaid cheque on its presentation to the bank concerned was returned back vide memo dated 28.12.2016 with the remarks “Funds Insufficient”. Since accused failed to make the payment good within the stipulated period despite his having received legal notice dated 25.01.2017, 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 19.01.2024/ 27.02.2024, held the accused guilty of his having committed offence 4 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 Additional Chief Judicial Magistrate, Sarkaghat, District Mandi, Himachal Pradesh, accused preferred an appeal before the learned Additional Sessions Judge, Sarkaghat, District Mandi, Himachal Pradesh, but same was dismissed vide judgment dated 01.11.2025. 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 15.12.2025, this Court suspended the substantive sentence imposed by the learned Court below subject to accused depositing 30% of the cheque amount and furnishing personal bond in the sum of Rs.25,000/- with one surety in the like amount within a period of eight weeks, however, fact remains that aforesaid order was never complied with. Repeatedly matter was adjourned, enabling the accused either to deposit the amount or settle the dispute with the complainant, but in vain. On 07.04.2026, though it came to be stated at the behest of the 5 accused that sum of Rs.1,00,000/-, out of total amount of Rs.2,00,000/- awarded by learned trial Court, has already been deposited with the learned trial Court, but since remaining sum of Rs.1,00,000/- was undertaken to be deposited within a period of six weeks, this Court adjourned the matter for today’s date. However, fact remains that balance amount has not been paid till date, as such, this Court has no option but to decide the petition 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, Sarkaghat, District Mandi, 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. Rahul Sharma, learned counsel for the petitioner, 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 hand, factum of issuance of cheque as well as signatures thereupon never came to be disputed. Though in the instant 6 case, accused, in his statement recorded under Section 313 Cr.P.C, denied the case of the complainant in toto and claimed himself to be innocent, but pattern of cross-examination conducted upon the complainant clearly establishes factum with regard to issuance of cheque as well as signatures thereupon. If it is so, no illegality otherwise can be said to have been committed by learned Courts below, while invoking Section 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. 7. No doubt, aforesaid presumption is rebuttable, but to rebut such presumption person seeking to rebut such presumption is expected to raise probable defence. 8. 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, besides leading evidence in defence, can rely on the materials produced by the complainant. Needless to say, if the accused/drawer of the cheque in question neither raises a probable defence nor is able to contest existence of a legally enforceable debt or 7 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 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 8 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. 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.” 9 [ 9. In the instant case, though accused examined two witnesses i.e. DW-1 Mukesh Kumar and DW-2 HASI Jagdarshan Singh, but accused was unable to probablize the defence otherwise attempted to set up by him. 10. To the contrary, complainant, with a view to prove his case, examined himself as CW-1, who by way of tendering affidavit Ext.CW-1/A, reiterated the facts as averred in the complaint. Besides above, he also tendered on record cheque Ex. CW1/B, memo Ex. CW1/C, legal notice Ex. CW1/D, postal receipt Ex. CW1/E. If the cross- examination conducted upon this witness is 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. In his cross examination, afore witness stated that M/s Navnirman is a registered firm. While stating that he is not partner in the said firm, he stated that he used to assist his wife, who is the proprietor of the firm. He stated that there is no other partner in the firm except his wife Madhubala. While feigning ignorance as to whether the firm was registered in the year 2012 or 2013, he stated that Kuldeep i.e. the 10 accused, used to deposit the sales tax of their firm. He stated that though they had no agreement with the accused to deposit their tax, but sales tax used to be deposited by him and they used to pay Rs.500/- for three months to the accused to deposit the sales tax. He stated that some part of tax was paid through cheque and some was paid by cash. He stated the payment made by him to the accused through cheque had been deposited by the accused as sales tax, but the payment made in cash had not been deposited. While denying that entire receipts of sales tax were with him, he stated that it was with the Kuldeep as he was their accountant. While stating that accused used to work for him in matters relating to tax, sales and accounts, he further stated he also used to look after the work of excise. He stated that till the accused worked for him, entire receipts of the tax were with him. He stated that he could not state orally about the total sales from May 2016 to June 2016. He admitted that demonetization started on 08.11.2016. He feigned ignorance that on 08.12.2016, he had deposited Rs.14,500/- in the account of accused. He feigned ignorance that aforesaid amount of Rs. 14,500/- had been deposited by the accused towards excise duty. While feigning ignorance that afore sum of rupees had been deposited by 11 him in the account of accused so that he can exchange his old currency notes, he admitted that e-challan was filed for VAT. While admitting that in mark-A the VAT tax-II-A e-challan of his firm was Rs. 14,500/-, he denied that on 28.06.2016, he asked the accused to issue a fraud bill of Rs.30 Lakhs. He admitted that work of welding and preparation of aluminum frames comes under the work of fabrication. While admitting that cheque had been filled by him, he stated that accused had issued the cheque as per his free will. While admitting that accused had lodged a complaint against him that the cheque had been forcibly obtained by him from the accused, he stated that at that time there was delivery of his wife and he got this information telephonically. If pattern of cross- examination conducted upon the complainant is seen, accused virtually admitted factum with to his regard to his having issued cheque as well as signatures thereupon. Though accused attempted to carve out a case that cheque in question was obtained forcibly by the complainant, but such defence never came to be probablized by him by leading cogent and convincing evidence. He was unable to produce on record copy of the complaint, if any, lodged by him with the police with regard to forcible procurement of cheque by the complainant. 12 11. 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. 12. 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 13 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.” 13. 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 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. 14. 14. 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 reason to interfere with the well reasoned judgments recorded by the Courts below, 14 which otherwise, appear to be based upon proper appreciation of evidence available on record and as such, same are upheld. 15. Accordingly, the present criminal revision petition is dismissed being devoid of any merit. The accused is directed to surrender before the learned trial Court within one month to serve the sentence as awarded by the learned trial Court, if not already served. Interim direction, if any, stands vacated. Pending applications, if any, also stand disposed of. Bail bonds, if any, furnished by the accused are cancelled. May 22, 2026 (Sandeep Sharma), (sunil) Judge