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Himachal Pradesh High Court · body

2025 DAILYLAW 3881 (HP)

Kiran Kumar v. Naresh Kumar

2025-10-31

Rakesh Kainthla

body2025
JUDGMENT : RAKESH KAINTHLA, J. 1. The present revision is directed against the judgment dated 01.07.2024 passed by learned Sessions Judge, Mandi (learned Appellate Court) vide which the judgment of conviction dated 30.12.2023 and order of sentence dated 02.03.2024 passed by learned Chief Judicial Magistrate, Mandi, District Mandi, H.P. (learned Trial Court) were upheld. (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 petition 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 (NI Act). It was asserted that the complainant purchased a Mahindra Earth Mover on 12.03.2012 from the accused by depositing Rs.3,60,000/- as margin money after taking a loan of Rs. 20 lakh from Himachal Gramin Bank. The accused handed over an old/already used earth mover to the complainant and assured to replace it with a new machine within one month of the purchase. The complainant requested the accused to provide a new earth mover after one month, as promised, but the accused failed to do so and took the old earth mover from the complainant after about one year. The accused issued a cheque of Rs. 27,00,000/- to the complainant to return the amount paid to him with interest and the compensation for the loss suffered by the complainant. The complainant presented the cheque to the bank, but it was dishonoured with the remarks ‘funds insufficient’. The complainant issued a legal notice to the accused, but it was returned undelivered. Hence, the complaint was filed before the learned Trial Court for taking action as per the law. 3. 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). 5. The accused, in his statement recorded under Section 313 of CrPC, denied the complainant’s case in its entirety. He stated that the cheque was issued by Deepak Jyoti and not by him. The cheque did not bear his signature. The witness deposed against him falsely, and he was falsely implicated. 4. The complainant examined himself (CW1). 5. The accused, in his statement recorded under Section 313 of CrPC, denied the complainant’s case in its entirety. He stated that the cheque was issued by Deepak Jyoti and not by him. The cheque did not bear his signature. The witness deposed against him falsely, and he was falsely implicated. He examined Deepak Jyoti (DW1) and Shubham Gupta (DW2). 6. Learned Trial Court held that Deepak Jyoti (DW1) admitted the signature of the accused on the cheque, and that the accused was a proprietor of Mahabir automobile. A presumption would arise from the admission of the signature that the cheque was issued for consideration in discharge of the liability. The burden would shift upon the accused to rebut this presumption, and the accused failed to do so. The complainant served a notice upon the accused, which was returned undelivered. This is treated as deemed service in law. The accused failed to pay the amount to the complainant. All the ingredients of commission of an offence punishable under Section 138 of the NI Act were duly satisfied. Consequently, 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 for six months, pay a fine of Rs. 28,00,000/- and in default of payment of fine, to undergo one- month simple imprisonment. It was further ordered that the amount of fine would be disbursed to the complainant as compensation. 7. Being aggrieved by the judgment and passed by the learned Trial Court, the accused filed an appeal, which was decided by the learned Sessions Judge, Mandi (learned Appellate Court). Learned Appellate Court concurred with the findings recorded by the learned Trial Court that the issuance of cheque would give rise to a presumption under Section 118(a) and 139 of the NI Act that the cheque was issued for consideration to discharge the liability. The accused failed to rebut the presumption. The cheque was dishonoured with an endorsement ‘funds insufficient’. The notice was deemed to have been served upon the accused, but he failed to pay the amount. Hence, he was rightly convicted and sentenced. Accordingly, the appeal was dismissed. 8. The accused failed to rebut the presumption. The cheque was dishonoured with an endorsement ‘funds insufficient’. The notice was deemed to have been served upon the accused, but he failed to pay the amount. Hence, he was rightly convicted and sentenced. Accordingly, the appeal was dismissed. 8. Being aggrieved by the judgments and order passed by the learned Courts below, the petitioner/accused has filed the present revision asserting that the learned Courts below erred in appreciating the material placed before them. Deepak Jyoti (DW1) stated that he had borrowed Rs. 3,00,000/-. He and the accused were running their business in the name of Mahabir Automobile, and he had handed over a blank security cheque to the complainant at the time of taking the loan. He (Deepak Jyoti) had returned the amount, but the complainant failed to return the cheque. Shubham Gupta (DW2) proved that Rs. 3,00,000/- was transferred from the account of Mahabir Automobile to the complainant’s account. The complainant’s version was not corroborated by any document. The complainant failed to prove the existence of a legally enforceable debt. Therefore, it was prayed that the present petition be allowed and judgments and order passed by the learned Courts below be set aside. 9. I have heard M/s Mukul Sood and Virender Kumar, learned counsel for the petitioner, M/s Neel Kamal Sharma and Shailja Thakur, learned counsel for the respondent No.1 and Mr.Lokender Kutlehira, learned Additional Advocate General, for respondent No.2-State. 10. Mr. Mukul Sood, learned counsel for the petitioner, submitted that the learned Courts below erred in appreciating the material placed before them. The complainant failed to prove his version beyond a reasonable doubt, whereas the version of the accused was proved by the statements of the defence witnesses. The Learned Courts below erred in ignoring the defence version. Therefore, he prayed that the present revision be allowed and the judgments and order passed by the learned Courts below be setaside. 11. Mr.Neel Kamal Sharma, learned counsel for respondent No.1/complainant, submitted that the issuance of the cheque was not disputed and the learned Courts below had rightly applied the presumption in the present case. The accused had failed to rebut the presumption by leading any satisfactory evidence. Therefore, he prayed that the present petition be dismissed. 12. Mr. Lokender Kutlheria, learned Additional Advocate General for the respondent no. The accused had failed to rebut the presumption by leading any satisfactory evidence. Therefore, he prayed that the present petition be dismissed. 12. Mr. Lokender Kutlheria, learned Additional Advocate General for the respondent no. 2/State supported the judgments and order passed by the learned Courts below and submitted that no interference is required with it. 13. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 14. It was laid down by the Hon’ble Supreme Court in Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204 : (2022) 3 SCC (Cri) 348 : 2022 SCC OnLine SC 786 that a revisional court is not an appellate court and it can only rectify the patent defect, errors of jurisdiction or the law. It was observed at page 207:- “10. Before adverting to the merits of the contentions, at the outset, it is apt to mention that there are concurrent findings of conviction arrived at by two courts after a detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction like the appellate court, and the scope of interference in revision is extremely narrow. Section 397 of the Criminal Procedure Code (in short “CrPC”) vests jurisdiction to satisfy itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error which is to be determined on the merits of individual cases. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings. 15. This position was reiterated in State of Gujarat v. Dilipsinh Kishorsinh Rao, (2023) 17 SCC 688 : 2023 SCC OnLine SC 1294, wherein it was observed at page 695: 14. 15. This position was reiterated in State of Gujarat v. Dilipsinh Kishorsinh Rao, (2023) 17 SCC 688 : 2023 SCC OnLine SC 1294, wherein it was observed at page 695: 14. The power and jurisdiction of the Higher Court under Section 397CrPC, which vests the court with the power to call for and examine records of an inferior court, is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in such proceedings. 15. It would be apposite to refer to the judgment of this Court in Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986, where scope of Section 397 has been considered and succinctly explained as under: (SCC p. 475, paras 12-13) “12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error, and it may not be appropriate for the court to scrutinise the orders, which, upon the face of it, bear a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored, or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits. 13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. Each case would have to be determined on its own merits. 13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in the exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even the framing of the charge is a much-advanced stage in the proceedings under CrPC.” 16. It was held in Kishan Rao v. Shankargouda, (2018) 8 SCC 165 : (2018) 3 SCC (Cri) 544 : (2018) 4 SCC (Civ) 37 : 2018 SCC OnLine SC 651 that it is impermissible for the High Court to reappreciate the evidence and come to its conclusions in the absence of any perversity. It was observed at page 169: “12. This Court has time and again examined the scope of Sections 397/401 CrPC and the grounds for exercising the revisional jurisdiction by the High Court. In State of Kerala v. Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC 452 : 1999 SCC (Cri) 275, while considering the scope of the revisional jurisdiction of the High Court, this Court has laid down the following: (SCC pp. 454-55, para 5) 5. … In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings to satisfy 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 a 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. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting a 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 High Court to reappreciate the evidence and come to its conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to a gross miscarriage of justice. On scrutinising the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation in concluding that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence. …” 13. Another judgment which has also been referred to and relied on by the High Court is the judgment of this Court in Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke, (2015) 3 SCC 123 : (2015) 2 SCC (Cri) 19. This Court held that the High Court, in the exercise of revisional jurisdiction, shall not interfere with the order of the Magistrate unless it is perverse or wholly unreasonable or there is non- consideration of any relevant material, the order cannot be set aside merely on the ground that another view is possible. The following has been laid down in para 14: (SCC p. 135) “14. … Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with the decision in exercise of their revisional jurisdiction.” 17. This position was reiterated in Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197 : (2019) 2 SCC (Cri) 40 : (2019) 2 SCC (Civ) 309 : 2019 SCC OnLine SC 13, wherein it was observed at page 205: “16. It is well settled that in the exercise of revisional jurisdiction under Section 482 of the Criminal Procedure Code, the High Court does not, in the absence of perversity, upset concurrent factual findings. It is not for the Revisional Court to re-analyse and re-interpret the evidence on record. 17. As held by this Court in Southern Sales & Services v. Sauermilch Design and Handels GmbH, (2008) 14 SCC 457 , it is a well-established principle of law that the Revisional Court will not interfere even if a wrong order is passed by a court having jurisdiction, in the absence of a jurisdictional error. The answer to the first question is, therefore, in the negative.” 18. The present revision has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 19. The complainant, Naresh Kumar (CW1), reiterated the contents of the complaint in his proof affidavit (Ex.CW1/A). He stated in his cross-examination that he had not filed any complaint against the accused or withheld the payment of the accused. The old vehicle was handed over to him on the condition that he could use it till the delivery of the new vehicle. He sent the vehicle to Nahan, but it was returned within 20 to 25 days. He stated in his cross-examination that he had not filed any complaint against the accused or withheld the payment of the accused. The old vehicle was handed over to him on the condition that he could use it till the delivery of the new vehicle. He sent the vehicle to Nahan, but it was returned within 20 to 25 days. Deepak Jyoti was looking after the work of the petrol pump, and the accused was looking after the work of Mahindra automobile. He had no dealings with Deepak Jyoti. No money was transferred to his account from the account of the accused or the account of Deepak Jyothi. He did not deposit any money in the bank. He denied that the machine given to him was repossessed by the bank. He volunteered to say that the machine was lying in the police station because of the dispute regarding the payment. 20. The statement of the complainant is not satisfactory. He stated on oath that an old vehicle was given to him, which was returned to the complainant after four months. This is contrary to his affidavit (Ext. CW1/A) in which it was mentioned that the vehicle was returned after a period of one year on 29th July 2013. He admitted that he had not paid any money to the bank, and the police had seized the vehicle because of the dispute over the payment. He has not explained why the vehicle was seized by the police from the possession of the accused. The accused was not to pay any amount to any person, and it was only the complainant who was to repay the loan to the bank. He admitted that he had not filed any complaint against the accused, which is highly improbable. A person who was delivered an old vehicle would have filed a complaint before the police or the consumer court for the redressal of his grievances. His conduct falsifies his version that the accused had delivered an old vehicle to him, which was returned to the accused. 21. The complainant stated that he had purchased the machine for Rs. 23,60,000/- on 12.03.2012, it remained with him till 29.07.2013, and he had sent it to Nahan from where it was returned after 20-25 days. Thus, the complainant had used the machine. The cheque was issued for Rs. 27,00,000/-. 21. The complainant stated that he had purchased the machine for Rs. 23,60,000/- on 12.03.2012, it remained with him till 29.07.2013, and he had sent it to Nahan from where it was returned after 20-25 days. Thus, the complainant had used the machine. The cheque was issued for Rs. 27,00,000/-. The complainant did not explain why the accused would have issued a cheque for Rs. 27,00,000/- for a machine worth Rs. 23,60,000/- which remained in possession of the complainant for more than one year. 22. The complainant did not produce any document executed by the accused regarding the receipt of the vehicle. He did not examine any person in whose presence the vehicle was delivered to the accused. This was necessary because, as per the bill (Ext. CW1/G) and the admission of the complainant, he had taken the delivery of the vehicle from the accused, and the burden was upon him to show that he had returned the vehicle to the accused, who had issued the cheque towards the cost of the vehicle. 23. The complainant specifically stated that no money was paid to him by Deepak Jyoti or the accused. This statement is falsified by Shubham Gupta, who stated that an amount of Rs.3,00,000 was paid from the account of Mahavir Automobile on 15th March 2012 to the complainant. He has also produced a copy of the cheque (Ex. DW1/A). The complainant has not explained this payment; rather, he has denied that any such payment was made to him. Therefore, the version of Deepak Jyoti (DW1) has to be accepted as correct that this payment was towards the repayment of the loan taken by him from the complainant and that he had handed over a blank cheque to the complainant as security, which stood discharged by the repayment of the loan. 24. Learned Courts below proceeded on the admission of Deepak Jyoti (DW1) that the cheque bears the signatures of the accused and held that the admission of the signatures would give rise to a presumption that the cheque was issued for consideration to discharge the liability. There can be no dispute with the proposition that the admission of the signatures on the cheque gives rise to a presumption; however, the presumption is rebuttable, and the moment evidence is led, the presumption stands rebutted. There can be no dispute with the proposition that the admission of the signatures on the cheque gives rise to a presumption; however, the presumption is rebuttable, and the moment evidence is led, the presumption stands 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: “38. 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 (sufficient 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’.” 25. This position was reiterated in N. Vijay Kumar v. Vishwanath Rao N., 2025 SCC OnLine SC 873, wherein it was observed: “11. Considering the sum total of the above, we find that the probable defence on the part of the accused has been established. Once such a defence is established, the burden again shifts upon the complainant to now establish his case beyond a reasonable doubt, for after all, the effect of Section 138 of the NI Act is a criminal conviction. Reference may be made to Rajesh Jain v. Ajay Singh, (2023) 16 SCC 125 and more particularly, Para 44 thereof, which reads as under: “44. Therefore, in fine, it can be said that once the accused adduces evidence to the satisfaction of the Court that on a preponderance of probabilities there exists no debt/liability in the manner pleaded in the complaint or the demand notice or the affidavit-evidence, the burden shifts to the complainant and the presumption “disappears” and does not haunt the accused any longer. The onus having now shifted to the complainant, he will be obliged to prove the existence of a debt/liability as a matter of fact, and his failure to prove would result in dismissal of his complaint case. Thereafter, the presumption under Section 139 does not again come to the complainant's rescue. The onus having now shifted to the complainant, he will be obliged to prove the existence of a debt/liability as a matter of fact, and his failure to prove would result in dismissal of his complaint case. Thereafter, the presumption under Section 139 does not again come to the complainant's rescue. Once both parties have adduced evidence, the Court has to consider the same and the burden of proof loses all its importance. [Basalingappa v. Mudibasappa, (2019) 5 SCC 418 : (2019) 2 SCC (Cri) 571 : AIR 2019 SC 1983 ; see also, Rangappa v. Sri Mohan, (2010) 11 SCC 441 : (2010) 4 SCC (Civ) 477 : (2011) 1 SCC (Cri) 184 : AIR 2010 SC 1898 ]” 26. In the present case, the discrepancy regarding the period for which the machine remained with the complainant, the conduct of the complainant in not making any complaint, non-examination of any witness regarding the delivery of the vehicle to the accused, the seizure of the vehicle by the police over a dispute for payment and denial of the payment made by Deepak Jyoti rebutted the presumption. The learned Courts below erred in relying upon the presumption and not looking into the circumstances surrounding the transaction. 27. Thus, the present revision is allowed, and the judgments and order passed by learned Courts below are set aside. The accused is acquitted of the commission of an offence punishable under Section 138 of the NI Act. His bail bonds are discharged. The fine amount, if deposited by the petitioner/accused, be refunded to him after the expiry of the statutory period of limitation in case of no further appeal, and in case of appeal, the same be dealt with as per the orders of the Hon’ble Apex Court. 28. In view of the provisions of Section 437-A of the Code of Criminal Procedure [Section 481 of Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS)], the petitioner/accused is directed to furnish his personal bond in the sum of Rs.25,000/- with one surety 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 petitioner/accused, on receipt of notice(s) thereof, shall appear before the Hon’ble Supreme Court 29. 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.