2025:HHC:38111 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 95 of 2014 Reserved on: 30.10.2025 Date of Decision: 13.11.2025. Tarkeshwar Shah ...Appellant Versus Satinder Thakur and others ...Respondents Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Appellant : Mr Sanjay Sharma, Advocate. For the Respondent : Mr Lalit Kumar Sharma, Advocate. Rakesh Kainthla, Judge The present appeal is directed against the judgment dated 27.11.2012, passed by learned Sessions Judge (Forests) (learned Appellate Court), vide which the judgment of conviction and order of sentence dated 28.8.2008, passed by learned Chief Judicial Magistrate, Shimla (learned Trial Court) were set-aside and the respondents (accused before learned Trial Court) were acquitted of the commission of an offence punishable under Section 138 of the Negotiable Instruments Act, 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2025:HHC:38111 1881 (NI Act). (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 NI Act. It was asserted that the accused had issued a cheque for ₹1.00 lac in favour of the complainant in discharge of his legal liability. The complainant presented the cheque to his Bank, but it was dishonoured with an endorsement ‘insufÏcient funds’. The complainant served a notice upon the accused requiring them to repay the amount within 15 days of the receipt of the notice. The notice was duly served upon the accused; however, they failed to repay the amount. Hence, the complaint was filed before the learned Trial court to take action as per law. 3. The learned Trial Court found sufÏcient reasons to summon the accused. When the accused appeared before the Court, notice of accusation was put to them for the commission 3 2025:HHC:38111 of an offence punishable under Section 138 of the NI Act, to which they pleaded not guilty and claimed to be tried. 4. The complainant examined Baldev Singh Rana (CW1), Jitender Singh Negi (CW2) and himself (CW3) to prove his case. 5. The accused, in their statements recorded under Section 313 of Cr.P.C., admitted that they had issued a cheque of ₹1.00 lakh in favour of the complainant. They admitted that there was no money in the account on which the cheque was drawn. They admitted that the notice was received by them and they had sent a reply to it. They stated that they used to pay the money to the complainant from a different account. They mistakenly issued a cheque drawn on another account. They paid the money to the complainant by means of the cheques. They examined S.S. Dawala (DW1) in their defence. 6. Learned Trial Court held that the accused had not disputed the issuance of the cheque. The plea taken by them that they had mistakenly issued the cheque drawn on another account was not plausible. The accused did not produce any evidence to show that they had paid the money to the 4 2025:HHC:38111 complainant by means of the cheque as claimed by them. The cheque was dishonoured with an endorsement ‘funds insufÏcient’. The notice was duly served upon the accused, but they failed to repay the amount; hence, the learned Trial Court convicted the accused of the commission of an offence punishable under Section 138 of the NI Act and sentenced them to undergo simple imprisonment for six months and pay a compensation of ₹1,25,000/-. 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 Sessions Judge (Forests), Shimla (learned Appellate Court. Learned Appellate Court held that the complainant admitted that he had received the payments for the project through (Ex.DX5), (Ex.DX6) and (Ex.DX7). This probabilised the version of the accused that they had paid the money to the complainant. The complainant had failed to establish that the cheque was issued in discharge of the liability. Learned Trial Court did not advert to this aspect of the case. Hence, the appeal was allowed. 5 2025:HHC:38111 8. Being aggrieved by the judgment passed by the learned Appellate Court, the complainant has filed the present appeal, asserting that the learned Appellate Court relied upon inadmissible evidence. It was proved on record that the cheque was issued in discharge of a legally enforceable liability. It was not disputed that the complainant was carrying on the construction work, and the accused were making payment to him regarding the work done by him. The accused did not furnish the details of the account in which the payment was made. The payment of ₹1.00 lac made by the accused to the complainant was accepted as a valid discharge; however, there was no evidence to suggest that this payment of ₹1.00 lac was towards the cheque issued by the accused. Therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Appellate Court be set aside. 9. I have heard Mr Sanjay Sharma, learned counsel for the appellant/complainant and Mr Lalit Kumar Sharma, learned counsel for the respondent/accused. 10. Mr Sanjay Sharma, learned counsel for the appellant/complainant, submitted that the learned Appellate 6 2025:HHC:38111 Court erred in holding that the accused had repaid the amount. The accused admitted the issuance of the cheque, and a presumption under Section 139 and Section 118 (a) of the NI Act would arise that the cheque was issued for consideration in discharge of the liability. The burden would shift upon the accused to rebut the presumption, but the accused failed to do so. Learned Appellate Court erred in taking the payments made by the accused towards the amount mentioned in the cheque. Therefore, he prayed that the present appeal be allowed and the judgment passed by the learned Appellate Court be set aside. 11. Mr Lalit Kumar Sharma, learned counsel for the respondent/accused, submitted that the complainant admitted the receipt of the money. He has not provided any explanation for it. Therefore, the learned Appellate Court was justified in holding that the payment was towards the amount mentioned in the cheque. This was a reasonable view which could have been taken based on the evidence led before the learned Trial Court, and this Court should not interfere with the reasonable view of the learned Appellate Court, even if another view is possible. Therefore, he prayed that the present appeal be dismissed. 7 2025:HHC:38111 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, omits to consider the material evidence and takes a view that no reasonable person would have taken based on the evidence on record. 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, (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 8 2025:HHC:38111 regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: (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. (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 9 2025:HHC:38111 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, (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 10 2025:HHC:38111 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 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 the High Court shows that this question has not been 11 2025:HHC:38111 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. The complainant, Tarkeshwar Shah (CW3), stated in his cross-examination that he had executed the work worth ₹3- 3.5 lacs. The bill (Ex.DX) was prepared on 18.10.2003. He stated that a cash payment of ₹1.00 lac was made to him, and he had issued the receipt. The receipts (Ex.DX3 to Ex.DX7) were issued by him; however, the payment of the disputed cheque was not made to him. 17. The receipts (Ex.DX4 to Ex. DX7) show the total payments of ₹4,35,000/-. The complainant stated that he had executed the work worth ₹3-3.5 lacs. Thus, the receipts show that he has received more payment than the work executed by 12 2025:HHC:38111 him. Hence, the learned Appellate Court was justified in holding that the accused had no subsisting liability to discharge. 18. The complaint does not mention that the complainant had executed the work, and the payment was made to him towards the work executed by him. He filed the complaint stating that the cheque was issued to discharge the liability without mentioning the liability. Therefore, the inference drawn by the learned Appellate Court from the payment was a possible inference. 19. The cheque was presented before the Bank on 17.6.2003 as per the statement of S.S. Dawala (DW1), and the payment of ₹1.00 lac was made on 26.6.2003 vide receipt (Ex.DX6). The payment of ₹1.00 lac mentioned in the cheque after its dishonour can lead to an inference that this payment was towards the amount mentioned in the cheque. The complainant did not provide any other explanation for the payment; therefore, the learned Appellate Court had rightly held that the accused had discharged their liability. 20. It was submitted that the cheque carried with it a presumption that it was issued for consideration to discharge 13 2025:HHC:38111 the liability. There can be no dispute with the proposition of law that a cheque carries with it a presumption that it was issued for consideration in discharge of the liability; however, the presumption is rebuttable, and can be rebutted by the cross- examination of the complainant’s witnesses or the evidence led by the accused. 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: “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’.” 21. Thus, the learned Appellate Court had taken a reasonable view while deciding the appeal, and this Court will not interfere with the reasonable view of the learned Appellate Court even if another view is possible. 22. No other point was urged. 14 2025:HHC:38111 23. In view of the above, the present appeal fails, and the same is dismissed. 24. Record of the learned Trial Court be sent back forthwith, along with a copy of this judgment. (Rakesh Kainthla) Judge 13th November 2025 (Chander)