1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Revision No.614 of 2025 Date of Decision: 06.08.2026 _________________________________________________________________________ Narinder Kumar ……...Petitioner Versus Rishi Malhotra …....Respondents Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? For the Petitioner: Mr. Arush Matlotia, Advocate. For the Respondent: Ms. Suhani Gautam, Advocate vice Mr. Rajender Sharma, Advocate. _________________________________________________________________________________ Sandeep Sharma, J. (Oral) Instant criminal revision petition filed under Section 442 Bharatiya Nagrik Suraksha Sanhita, 2023, lays challenge to judgment dated 08.10.2025 passed by the learned Additional Sessions Judge, Dehra, District Kangra, Himachal Pradesh, in Criminal Appeal No.04-G/IX/2025, affirming the judgment of conviction and order of sentence dated 27.2.2025/11.03.2025, passed by the learned Additional Chief Judicial Magistrate, Dehra, District Kangra, H.P. in Criminal Complaint No.30-III- 2017, whereby the learned Court below, while holding the petitioner- accused (in short the "accused") guilty of having committed offence 2 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 six months and pay compensation to the tune of Rs.1,00,000/- to the respondent-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 in the competent Court of law, alleging therein that on account of his good relations with the accused, he advanced a sum of Rs.50,000/- to the accused on credit basis, with a promise from the accused to return the same on or before 31.01.2017. Though, accused with a view to discharge his lawful liability, issued cheque bearing No. UNC-777986 dated 15.01.2017 for a sum of Rs.50,000/- in favour of the complainant, but aforesaid cheque on its presentation to the bank concerned was dishonoured on account of insufficient funds in the bank account of the accused vide return memo dated 18.01.2017. Immediately after receipt of the aforesaid return memo, complainant served the accused with legal notice dated 19.01.2017, thereby calling upon him to make the payment good within the stipulated time, but since needful was not done within the 3 stipulated time, complainant had no option, but to institute 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 27.2.2025/ 11.03.2025, held the accused guilty of his having committed offence 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 Court below, accused preferred an appeal before the learned Additional Sessions Judge, Dehra, District Kangra, Himachal Pradesh, but same was dismissed vide judgment dated 08.10.2025. 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 30.10.2025, Co-ordinate Bench of this Court suspended the substantive sentence imposed by the learned Court below subject to accused depositing 30% of the compensation amount and furnishing personal bond in the sum of Rs.25,000/- with one surety in the 4 like amount within a period of four weeks. After passing of aforesaid order, 50% of the compensation amount came to be deposited with the learned trial Court and thereafter matter was repeatedly adjourned, enabling the accused either to settle the dispute with the complainant or to deposit the remaining amount before the learned trial Court, but in vain. On the last date of hearing, this court was informed that since accused was admitted in the hospital, he was unable to pay the balance amount, but assured that in any eventuality, same shall be paid/deposited on or before next date of hearing. However, neither the amount has been deposited/paid nor accused has come present and 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, Dehra, District Kangra, 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. Arush Matlotia, learned counsel for the accused, that learned Courts below have failed to appreciate the evidence in its right perspective, rather this Court finds that both the Courts below 5 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 at hand, factum with regard to issuance of cheque as well as signatures thereupon never came to be refuted. In his statement recorded under Section 313 Cr.P.C., though the accused denied that he had taken a loan of Rs.50,000/- from the complainant in May 2016, but he admitted that he had borrowed Rs.50,000/- from the complainant in the year 2016 and had handed over the cheque in question as security at that time. He denied that cheque Ex. C1 was issued in favour of the complainant for any lawful consideration or towards discharge of any legally enforceable liability. While explaining that the cheque was issued as a security cheque, the accused stated that he had signed the cheque and filled in all its particulars except the date. He admitted that cheque Ex. C1 was presented by the complainant for encashment through his bank account maintained with PNB, Bankhandi. However, the cheque was dishonoured due to insufficient funds, as reflected in bank memo Ex. C2 dated 18.01.2017. Since factum with regard to issuance of cheque as well as signatures thereupon never came to be refuted, no illegality can be said to have been committed by courts below, while invoking Sections 118 and 139 of the Act, which talk 6 about presumption in favour of holder of cheque that cheque in question was issued towards discharge of lawful liability. No doubt, aforesaid presumption is rebuttable, but to rebut such presumption person seeking to rebut such presumption is expected to raise probable defence. 7. 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 can rely on the materials submitted 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 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 No.23 to 25 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 7 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 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 8 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.” 8. SEE also: SANJABIJ TARI Vs. KISHORE S.BORCAR & ANR., Criminal Appeal No.1755 of 2010, Triyambak S. Hegde Vs. Sripad., (2022) 1 SCC 742, Basalingappa Vs. Mudibasappa (2019) 5 SCC 418, APS FOREX SERVICES PVT. LTD. Vs. SHAKTI INTERNATIONAL FASHION LINKERS & ORS., (2020) 12 SCC 724, Rohitbhai J Patel Vs. The State Of Gujarat & Anr., (2019) 18 SCC 106, Rajesh Jain Vs. Ajay Singh, SLP (Crl.) No.12802 of 2022. 9 9. To the contrary, complainant, with a view to prove his case, examined himself as CW-2 and tendered his evidence by way of affidavit Ext. CW2/A, reiterating therein the contents of the complaint. He deposed that the accused was in need of money and requested a loan of Rs.50,000/- from him. He deposed that on 02.11.2016, the accused came to his agency at Sunhet and borrowed Rs.50,000/- in the presence of the agency's manager, Ritesh son of Vishavnath Sood. He stated that accused assured him that the amount would be repaid by 31.01.2017 and during this period, the accused borrowed additional amount from him. He deposed that in order to discharge his legally enforceable liability, the accused issued cheque No.UNC-777986 dated 15.01.2017 amounting to Rs. 50,000/- in his favour, however, the same was dishonored with remarks “funds insufficient”. He deposed that before initiation of proceedings under Section 138 of the Act, he served the accused with legal notice, thereby calling upon him to make the payment good within the stipulated time, but since needful was not done within the stipulated time, complainant had no option but to institute a complaint under Section 138 of the Act in the competent court of law. If the cross-examination conducted upon this witness is perused in its entirety, it can be safely concluded that opposite 10 party was unable to extract anything contrary to what this witness stated in his examination-in-chief. In his cross-examination, while stating that he does not remember the date on which accused gave him the cheque, this witness specifically stated that the cheque was issued to clear the payment of borrowed money which accused took from him in cash on 02.11.2016 in presence of his Manager Ritesh Goel. While admitting that on 04.08.2016 he received Rs. 50,000/- in his bank account from the account of Renu Devi, he denied that Narinder Kumar made any payment to him of the cheque amount in question through the account of Renu Devi. He deposed that there were other financial transactions between the parties involving an amount of Rs.50,000/-, but he did not have the details of the amount borrowed by the accused from him. While denying the suggestion that he had failed to return the cheque even after receiving the cheque amount in his account, he stated that he did not run any finance agency. He further clarified that the amount advanced to the accused was a friendly loan. 10. CW3 Ritesh Goel tendered his examination-in-chief by way of affidavit Ex. CW3/A, wherein he testified that while he was posted as a Manager at Yamaha agency in Sunhet from 2014 till December 2017, accused Narinder Kumar used to visit the agency on several occasions as 11 he was a close friend of Rishi Malhotra. He deposed that on 02.11.2016, Narinder Kumar came to the agency and borrowed Rs. 50,000/- from Rishi Malhotra in his presence. He also deposed that on 15.01.2017 the accused issued cheque No. UNC-777986 to repay the aforesaid amount. If the cross- examination conducted upon this witness is perused in its entirety, it can be safely concluded that opposite party was unable to extract anything contrary to what this witness stated in his examination-in-chief. 11. Though accused attempted to carve out a case that cheque in question was not issued towards discharge of lawful liability, rather same was issued at the time of loan taken by him from the complainant in the year 2016, which was repaid, but cheque was not returned. However, aforesaid defence never came to be probablized by leading cogent and convincing evidence. Though accused, with a view to prove his case, examined himself as DW-3 and also examined three other witnesses, namely Guljar Mohammad, Smt. Bimla Devi & Abhishek Sharma, but version put-forth by them, if read in conjunction, nowhere suggests that accused was able to probablize the defence otherwise attempted to be set him, while cross-examining the complainant and his witnesses. 12 12. By now it is well settled that dishonour of cheque issued as security can also attract offence under Section 138 of the Negotiable Instruments Act. Hon’ble Apex Court in case titled Sripati Singh v. State of Jharkhand, Criminal Appeal No. 1269-1270 of 2021, decided on 28.10.2021, has held as under: “16. A cheque issued as security pursuant to a financial transaction cannot be considered as a worthless piece of paper under every circumstance. ‘Security’ in its true sense is the state of being safe and the security given for a loan is something given as a pledge of payment. It is given, deposited or pledged to make certain the fulfilment of an obligation to which the parties to the transaction are bound. If in a transaction, a loan is advanced and the borrower agrees to repay the amount in a specified timeframe and issues a cheque as security to secure such repayment; if the loan amount is not repaid in any other form before the due date or if there is no other understanding or agreement between the parties to defer the payment of amount, the cheque which is issued as security would mature for presentation and the drawee of the cheque would be entitled to present the same. On such presentation, if the same is dishonoured, the consequences contemplated under Section 138 and the other provisions of N.I. Act would flow. 13 13. Needless to say, expression “Security cheque” is not a statutorily defined expression in the Negotiable Instruments Act, rather same is to be inferred from the pleadings as well as evidence, if any, led on record with regard to issuance of security cheque. The Negotiable Instruments Act does not per se carve out an exception in respect of a “security cheque” to say that a complaint in respect of such a cheque would not be maintainable as there is a debt existing in respect whereof the cheque in question is issued, same would attract provision of Section 138 of the Act in case of its dishonour. 14. 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. 15. 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 14 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 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.” 16. 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 15 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. 17. 17. 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 valid reason to interfere with the well-reasoned judgments recorded by the Courts below, which otherwise, appear to be based upon proper appreciation of evidence available on record and as such, same are upheld. 18. Accordingly, the present criminal revision petition is dismissed being devoid of any merit. The petitioner is directed to surrender himself before the learned trial Court within six weeks to serve the sentence as awarded by the learned trial Court, if not already served. Interim direction, if any, stands vacated. Bail bonds, if any, are cancelled. Pending applications, if any, also stand disposed of. 2. Amount, if any, deposited by the accused with the learned trial Court is ordered to be released in favour of complainant by remitting the 16 same in his saving bank account, detail whereof, shall be furnished within a period of one week. (Sandeep Sharma), Judge August 06, 2026 (sunil)