2025:HHC:36102-DB IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 288 of 2012 Reserved on: 24.09.2025 Date of Decision: 30.10.2025 Kamal Prakash ...Appellant Versus Gian Prakash Sharma ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Appellant : Mr Ajay Chandel, Advocate. For the Respondent : Mr Karan Singh Kanwar, Advocate. Rakesh Kainthla, Judge The appellant has filed the present appeal against the judgment dated 07.05.2012, passed by learned Additional Sessions Judge (Fast Track) Kullu, H.P. (learned Appellate 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. P a g e | 2 2025:HHC:36102-DB 2. Briefly stated, the facts giving rise to the present appeal are that the complainant filed a complaint before the learned Trial Court 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 and the accused are contractors by profession. The accused sublet the excavation work of Bhunter Airport to the complainant and executed an agreement to this effect. The complainant demanded the money for the work done by him, and the accused issued a cheque of ₹1,00,000 drawn on State Bank of India, Branch Bhunter, to discharge his liability. The complainant presented the cheque to the bank, but it was dishonoured on 27.04.2009 with an endorsement ‘insufÏcient funds’. The complainant issued a legal notice asking the accused to pay the aforesaid amount within 15 days. The notice was duly served upon the accused, but he failed to repay the amount. Therefore, the complaint was filed before the learned Trial Court for taking action as per law. 3. Learned Trial Court found sufÏcient 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 P a g e | 3 2025:HHC:36102-DB Section 138 of the NI Act, to which he pleaded not guilty and claimed to be tried. 4. The complainant examined Bhupinder Kapoor (CW1), Rahul Gadiakar (CW2) and himself (CW3) to prove his case. 5. The accused, in his statement recorded under Section 313 of Cr.P.C., admitted that he and the accused are contractors by profession and have cordial relations with each other. He admitted that he had sublet the work to the complainant. He admitted that the complainant had completed the work, but denied that any agreement was executed between them. He stated that he had issued the cheque as security to the complainant and had made the payment in cash. He admitted that he had received a notice from the complainant. He stated that a false case was made against him, and the witnesses falsely testified against him. He examined himself (DW1) and Ghanshyam Sharma as (DW2). 6. Learned Trial Court held that the accused admitted the issuance of the cheque; therefore, a presumption under Sections 118(a) and 139 of the NI Act arose that the cheque was issued for consideration in discharge of the liability. The burden would shift upon the accused to rebut the presumption. The accused admitted P a g e | 4 2025:HHC:36102-DB that he had sublet the work to the complainant, who had completed it. The plea taken by the accused that he had paid the money in cash was not proved. The cheque was dishonoured with an endorsement “funds insufÏcient”. The notice was served upon the accused, but he had failed to repay the money. Hence, the accused was convicted of the commission of an offence punishable under section 138 of the NI Act and was sentenced to undergo simple imprisonment of six months and pay a compensation of ₹1,00,000 to the complainant. 7. Being aggrieved by the judgment and order passed by the learned Trial Court, the accused filed an appeal, which was decided by the learned Additional Sessions Judge (Fast Track Court), Kullu (learned Appellate Court). Learned Appellate Court held that the accused proved a receipt (Ex. DX) showing the payment of the money to Yan Singh Sonkhla. The complainant and Yan Singh Sonkhla were working together. The work was sublet to them. The payment made by the accused discharged his liability. Learned Trial Court erred in convicting and sentencing the accused; hence, the judgment and order passed by the learned Trial Court were set aside, and the accused was acquitted. P a g e | 5 2025:HHC:36102-DB 8. Being aggrieved by the judgment passed by the learned Appellate Court, the appellant/complainant has filed the present appeal asserting that the learned Appellate Court erred in setting aside a well-reasoned judgment passed by the learned Trial Court. The complainant had proved on record the issuance of the cheque to discharge his liability towards the work carried by the complainant at Bhuntar Airport. The payment made to a partner did not discharge the liability of the accused. The cheque was issued in the name of the complainant and not the firm. Therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Appellate Court be set aside. 8. I have heard Mr Ajay Chandel, learned counsel for the appellant and Mr Karan Singh Kanwar, learned counsel for the respondent. 9. Mr Ajay Chandel, learned counsel for the appellant, submitted that the learned Appellate Court erred in holding that the payment made to a partner will discharge the legal liability. The cheque was issued in the name of the complainant and not the firm. Any payment made to the partner will not absolve the accused of his liability. Therefore, he prayed that the present P a g e | 6 2025:HHC:36102-DB appeal be allowed and the judgment passed by the learned Appellate Court be set aside. 10. Mr Karan Singh Kanwar, learned counsel for the respondent, submitted that the complainant and Yan Singh Sonkhla were working together. The work was allotted to them, and the payment made to Yan Singh Sonkhla would bind the complainant. Learned Appellate Court had taken a reasonable view, and no interference is required with it. Hence, he prayed that the appeal be dismissed. 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/omission to consider the material evidence and reached at a conclusion which no reasonable person could have reached. 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 P a g e | 7 2025:HHC:36102-DB 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 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 sufÏcient 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. P a g e | 8 2025:HHC:36102-DB (4) An appellate court, however, must bear in mind that in the 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, reafÏrmed 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 of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.” P a g e | 9 2025:HHC:36102-DB 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. The present appeal is required to be decided as per the parameters laid down by the Hon’ble Supreme Court. 14. The complainant admitted in his cross-examination that Yan Singh Sonkhla was his partner for the execution of the work. He volunteered to say that both of them had executed the work worth ₹7,46,000/-. These admissions show that the complainant and Yan Singh Sonkhla had executed the work together as partners. Therefore, the complainant and Yan Singh Sonkhla were entitled to receive the money from the accused, and P a g e | 10 2025:HHC:36102-DB if the accused had paid money to Yan Singh Sonkhla, it would constitute the discharge of the liability by the accused. 15. The accused stated on oath that the complainant and Yan Singh Sonkhla were partners. On 4th November 2008, the accused paid ₹1,00,000/- to Yan Singh Sonkhla, who issued a receipt (Ex.DX). The money was paid in the presence of Ghanshyam. Ghanshyam (DW 2) stated that the accused paid ₹1,00,000 to Yan Singh Sonkhla, who issued a receipt (Ex. DX). Yan Singh Sonkhla had assured to return the cheque. He stated in his cross-examination that he knew Yan Singh Sonkhla personally. Nobody had stated in his presence that half of ₹ 7,46,000/- was to be paid to the complainant and Yaan Singh Sonkhla. 16. The suggestion made to Ghanshyam in his cross- examination that half of ₹7,46,000 was to be paid to the complainant and Yan Singh Sonkhla was without any basis. The complainant never stated in his complaint or the statement on oath that he was to receive half of ₹7,46,000 and the cheque was issued in discharge of this liability. He only stated that he had executed the work, and the cheque was issued towards its P a g e | 11 2025:HHC:36102-DB payment. Thus, no advantage can be derived from the suggestion made to Ghanshyam. 17. The receipt (Ex. DX) reads that Yan Singh Sonkhla had received ₹1,00,000 from the accused as a final payment towards the work of Bhuntar airport, and the cheque would be returned to the accused. Since the work was executed by the complainant and Yan Singh Sonkhla as partners; therefore, any payment made to Yan Singh Sonkhla would discharge the liability of the accused as per Section 25 of the Partnership Act. 18. It was submitted that the cheque carried a presumption under Sections 118(a) and 139 of the NI Act. There is no dispute with the proposition of law that a presumption arises by the admission of the signature on the cheque under the NI Act that it was issued for consideration in the discharge of the legal liability. However, the presumption is rebuttable, and the moment evidence is led, the presumption would stand rebutted. It was laid down by the Hon’ble Supreme Court in Rajesh Jain v. Ajay Singh, (2023) 10 SCC 148: 2023 SCC OnLine SC 1275 that the presumption applies in the absence of evidence and disappears after the evidence is produced. It was observed: P a g e | 12 2025:HHC:36102-DB “38. John Henry Wigmore [John Henry Wigmore and the Rules of Evidence: The Hidden Origins of Modern Law] on Evidence states as follows: “The peculiar effect of the presumption of law is merely to invoke a rule of law compelling the Jury to reach the conclusion in the absence of evidence to the contrary from the opponent but if the opponent does offer evidence to the contrary (sufÏcient to satisfy the Judge's requirement of some evidence), the presumption ‘disappears as a rule of law and the case is in the Jury's hands free from any rule’.” 19. In the present case, the cross-examination of the complainant and the evidence led by the accused established that the payment was made to Yan Singh Sonkhla, a partner of the complainant, which discharged the liability of the accused. Thus, it is impermissible to rely upon the presumption. 20. Therefore, the learned Trial Court had taken a reasonable view while acquitting the accused, and this Court will not interfere with it while deciding the appeal against the acquittal. 21. In view of the above, the present appeal fails, and the same is dismissed. 22. In view of the provisions of Section 437-A of the Code of Criminal Procedure [Section 481 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)], the respondent/accused is directed to furnish his personal bond in the sum of ₹25,000/- with one surety P a g e | 13 2025:HHC:36102-DB in the like amount to the satisfaction of the learned Registrar (Judicial) of this Court/learned Trial Court, within four weeks, which shall be effective for six months with stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of the leave, the respondent/accused, on receipt of notice(s) thereof, shall appear before the Hon’ble Supreme Court. 23. A copy of this judgment, along with the records of the learned courts below, be sent back forthwith. Pending miscellaneous application(s), if any, also stand(s) disposed of. (Rakesh Kainthla) Judge 30th October, 2025 (Chander)