( 2025:HHC:26225 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 146 of 2024. Reserved on: 29.07.2025. Date of Decision: 05.08.2025. Kabir Sharma ...Petitioner. Versus Keshav Ram ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Petitioner : Mr. Dibender Ghosh, Advocate. For the Respondent : Mr. Shakti Bhardwaj, Advocate. Rakesh Kainthla, Judge The present appeal is directed against the judgment dated 22.11.2023, passed by learned Additional Sessions Judge, Kullu, H.P (learned Appellate Court), vide which the judgment of conviction dated 14.03.2023 and order of sentence dated 15.03.2023 passed by learned Chief Judicial Magistrate, Kullu, H.P (learned Trial Court) were set aside and the complaint filed by the appellant (complainant before the learned Trial Court) was dismissed. (Parties shall hereinafter be referred to in the same 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 ( 2025:HHC:26225 ) 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 Negotiable Instruments Act (in short “NI Act”). It was asserted that the complainant and the accused were known to each other. The accused demanded ₹5,00,000/- from the complainant for his business purposes and domestic needs in December 2011. The complainant advanced an amount of ₹5,00,000/- to the accused. The accused assured to return the amount after some time. The accused issued a cheque of ₹5,00,000/- dated 15.02.2012 drawn at Punjab National Bank, Branch Bajaura in favour of the complainant. The complainant presented the cheque to his bank for its realisation. The bank of the complainant sent the cheque to the bank of the accused; however, the bank of the accused dishonoured the cheque with the remark “insufficient funds”. The complainant served a notice upon the accused on 12.06.2012, asking him to repay the amount within 15 days from the date of receipt of the notice. The 3 ( 2025:HHC:26225 ) notice was duly served upon the accused, but the accused failed to repay the money. Hence, the complaint was filed before the learned Trial Court to take action as per law. 3. The learned Trial Court found sufficient reasons to summon the accused. When the accused appeared before the learned Trial Court, 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) to prove his case. 5. The accused, in his statement recorded under Section 313 of Cr.P.C., denied that he had issued any cheque in favour of the complainant. He stated that the account number mentioned on the cheque was not his. He did not know the complainant. He had no transaction with the complainant, and the complainant had filed a false complaint against him. He stated that he wanted to lead defence evidence. However, a statement was made on his behalf on 05.03.2022 that no evidence was to be led. 6. Learned Trial Court held that the testimony of the complainant was believable that he had advanced money to the 4 ( 2025:HHC:26225 ) accused and the accused issued a cheque in his favour to discharge his legal liability. The accused did not step into the witness box to establish his version. The cheque was dishonoured with the endorsement “insufficient funds”. The notice was duly served upon the accused, and he failed to repay the amount despite the receipt of a valid notice of demand. Hence, all the ingredients of the commission of an offence punishable under Section 138 of the NI Act were satisfied. Consequently, the accused was convicted of the commission of an offence punishable under Section 138 of the NI Act, and he was sentenced to undergo simple imprisonment for 01 year and pay a compensation of ₹10,00,000/- to the complainant. 7. Being aggrieved from the judgment and order passed by the learned Trial Court, the accused filed an appeal, which was decided by the learned Additional Sessions Judge, Kullu, H.P. (learned Appellate Court). Learned Appellate Court held that the cheque was dishonoured on 10.05.2012, vide memo (Ex-CW1/D). The period of limitation would start running from 11.05.2012, and one-month period would expire on 09.06.2012. The legal notice was issued on 12.06.2012 beyond the period of 30 days provided under Section 138 of the NI Act. The 5 ( 2025:HHC:26225 ) complainant placed reliance upon a certificate issued by Punjab National Bank, Branch Jagat Sukh, Tehsil Manali, District Kullu (Ex-CW1/G). However, this certificate was issued on 20.07.2013 after the cognisance was taken by the learned Trial Court. Learned Trial Court could not have taken cognisance because the essential condition to take cognisance was missing. Learned Trial Court erred in taking cognisance, framing of notice of acquisition, convicting and sentencing the accused. Consequently, the appeal was allowed and the judgment and order passed by the learned Trial Court were set aside. 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 erred in allowing the appeal and dismissing the complaint. The judgment suffer from conjectures and surmises. The evidence was not appreciated in its proper perspective. It was wrongly held that the date of dishonour was to be considered as the starting point of limitation for serving the notice upon the accused. The period has to be counted from the date of receipt of intimation by the complainant. The accused failed to respond to the demand notice and did not raise any objection regarding the 6 ( 2025:HHC:26225 ) late issuance of the notice. The learned Trial Court had taken cognisance after going through the record, and there is no error in the order of cognisance passed by the learned Trial Court. 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. Dibender Ghosh, learned counsel for the appellant/complainant and Mr. Shakti Bhardwaj, learned counsel, for the respondent/accused. 10. Mr. Dibender Ghosh, learned counsel for the appellant/complainant, submitted that the learned Appellate Court erred in taking the date of the memo of dishonour as the starting period for issuing a notice. The period has to be calculated from the date of the receipt of intimation of dishonour by the complainant. The certificate (Ex- CW1/G) proved that the memo of dishonour was delivered to the complainant on 10.05.2012. The notice was issued on 12.06.2012, and it was posted on the same day. Therefore, it was served within a period of 30 days from the date of the receipt of intimation of the dishonour. Hence, he prayed that the present 7 ( 2025:HHC:26225 ) appeal be allowed and the judgment passed by the learned Appellate Court be set aside. 11. Mr. Shakti Bhardwaj, learned counsel for the respondent/accused, supported the judgment passed by the learned Appellate Court. He submitted that the complainant had specifically mentioned in his proof affidavit that the memo of dishonour was received by him on 10.05.2012. It is impermissible for the complainant to make a contrary plea before this Court. Hence, he prayed that the appeal be dismissed. 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, omission to consider the material evidence and no reasonable person would have recorded the acquittal based on the evidence led before the learned Trial Court. It was observed: “11. Recently, in the case of Babu Sahebagouda Rudragoudar v. State of Karnataka 2024 SCC OnLine SC 8 ( 2025:HHC:26225 ) 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 [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. 9 ( 2025:HHC:26225 ) (3) Various expressions, such as “substantial and compelling reasons”, “good and sufficient 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 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, reaffirmed, 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) 10 ( 2025:HHC:26225 ) “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.” 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 11 ( 2025:HHC:26225 ) 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 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. 12 ( 2025:HHC:26225 ) 16. The complainant filed an affidavit dated 14.09.2012 in which he had specifically stated in Para No. 2 that the cheque was returned by the bank to the deponent on 10.05.2012. Significantly, he filed another affidavit verified on 16.01.2014 (Ex-CW1/A) in which he stated in Para No. 2 that the cheque was returned by the bank to the deponent on 21.05.2012 along with the memo dated 10.05.2012. He also filed a certificate (Ex-CW1/G) issued by Punjab National Bank, in which it was mentioned that the cheque was delivered to the complainant, Kabir Sharma, on 21.05.2012. Thus, it is apparent that the complainant has taken a contradictory stand by filing two affidavits. He claimed in the first affidavit that the memo of dishonour was received by him on 10.05.2012; he stated in the subsequent affidavit that the memo of dishonour was received by him on 21.05.2012. He also tried to support it with the certificate issued by the Bank. 17. Once the complainant had sworn an affidavit on 14.09.2012 that the cheque was returned by the bank to him on 10.05.2012, it was not permissible for him to file another affidavit mentioning that the cheque was returned with the memo on 21.05.2012 without seeking leave from the Court. He 13 ( 2025:HHC:26225 ) surreptitiously replaced the earlier affidavit dated 14.09.2012 with another affidavit containing a contrary averment. This was not permissible. It was laid down by the Hon’ble Supreme Court in Radhey Shyam Garg v. Naresh Kumar Gupta, (2009) 13 SCC 201: (2009) 5 SCC (Civ) 61: (2010) 1 SCC (Cri) 980: 2009 SCC OnLine SC 1000 that the affidavit filed by the complainant has to be treated as his examination in chief and he is not required to repeat those contents on oath. It was observed at page 208: “19. If an affidavit in terms of the provisions of Section 145 of the Act is to be considered as evidence, it is difficult to comprehend as to why the court will ask the deponent of the said affidavit to examine himself with regard to the contents thereof once over again. He may be cross-exam- ined, and upon completion of his evidence, he may be re- examined. Thus, the words “examine any person giving evidence on affidavit as to the facts contained therein, in the event the deponent is summoned by the court in terms of sub-section (2) of Section 145 of the Act”, in our opinion, would mean for the purpose of cross-examina- tion. The provision seeks to serve a salutary purpose. The Statement of Objects and Reasons for enacting the said provision, inter alia, reads as under: “4. Keeping in view the recommendations of the Standing Committee on Finance and other representa- tions, it has been decided to bring out, inter alia, the following amendments in the Negotiable Instruments Act, 1881, namely— (i) to (iii)*** (iv) to prescribe a procedure for dispensing with preliminary evidence of the complainant; (v)*** 14 ( 2025:HHC:26225 ) (vi) to provide for summary trial of the cases un- der the Act with a view to speeding up disposal of cases;” 20. The object of enactment of the said provision is for the purpose of expediting the trial. A criminal trial, even otherwise, is required to be expeditiously held. We, there- fore, do not find any justification for arriving at a finding that a witness can again be summoned for his examina- tion-in-chief in the court despite an affirming affidavit in that behalf. 18. It was laid down by Hon’ble Supreme Court in Mandvi Cooperative Bank Ltd. v. Nimesh B. Thakore, (2010) 3 SCC 83, that Section 143 read with Section 145 of NI Act allows the complainant to give evidence on affidavit in the absence of the accused and the right of the accused is to be protected by allowing him to cross-examine the complainant and witnesses. It was observed as under:- “21. It is, however, significant that the procedure of summary trials is adopted under Section 143 subject to the qualification “as far as possible”, thus, leaving sufficient flexibility so as not to affect the quick flow of the trial process. Even while following the procedure of summary trials, the non obstante clause and the expression “as far as possible” used in Section 143 coupled with the non obstante clause in Section 145 allow for the evidence of the complainant to be given on affidavit, that is, in the absence of the accused. This would have been impermissible (even in a summary trial under the Code of Criminal Procedure) in view of Sections 251 and 254 and especially Section 273 of the Code. The accused, however, is fully protected, as under sub- section (2) of Section 145, he has the absolute and 15 ( 2025:HHC:26225 ) unqualified right to have the complainant and any or all of his witnesses summoned for cross-examination. xxxxx 23. Section 145 with its non obstante clause, as noted above, makes it possible for the evidence of the complainant to be taken in the absence of the accused. But the affidavit of the complainant (or any of his witnesses) may be read in evidence “subject to all just exceptions”. In other words, anything inadmissible in evidence, e.g. irrelevant facts or hearsay matters, would not be taken in as evidence, even though stated on affidavit.” 19. A similar view was taken in Indian Bank Assn. v. Union of India, (2014) 5 SCC 590: (2014) 3 SCC (Civ) 233: (2014) 2 SCC (Cri) 652: (2014) 184 Comp Cas 377: 2014 SCC OnLine SC 351 wherein it was observed at page 600: “18. We have indicated that under Section 145 of the Act, the complainant can give his evidence by way of an affi- davit and such affidavit shall be read in evidence in any inquiry, trial or other proceedings in the court, which makes it clear that a complainant is not required to ex- amine himself twice i.e. one after filing the complaint and one after summoning of the accused. The affidavit and the documents filed by the complainant along with the complaint for taking cognisance of the offence are good enough to be read in evidence at both the stages, i.e. pre- summoning stage and the post-summoning stage. In other words, there is no necessity to recall and re-exam- ine the complainant after summoning the accused, unless the Magistrate passes a specific order as to why the com- plainant is to be recalled. Such an order is to be passed on an application made by the accused or under Section 145(2) of the Act, suo motu by the court. In summary trial, after the accused is summoned, his plea is to be recorded 16 ( 2025:HHC:26225 ) under Section 263(g) CrPC and his examination, if any, can be done by a Magistrate and a finding can be given by the court under Section 263(h) CrPC and the same proce- dure can be followed by a Magistrate for offence of dis- honour of cheque since offence under Section 138 of the Act is a document based offence. We make it clear that if provisos (a), (b) and (c) to Section 138 of the Act are shown to have been complied with, technically the com- mission of the offence stands completed, and it is for the accused to show that no offence could have been commit- ted by him for specific reasons and defences. 20. In any case, when two versions appeared on record, the version which is in favour of the accused has to be preferred; thus, the version that the memo of dishonour was received on 10.05.2012 was to be preferred to the version that the memo of dishonour was received on 21.05.2012. 21. Once, it is held that the memo of dishonour was received on 10.05.2012, the notice issued on 12.06.2012 was beyond the period of 30 days prescribed under Section 138(b) of the NI Act. It was laid down by the Hon’ble Supreme Court in Kamlesh Kumar v. State of Bihar, (2014) 2 SCC 424, that when the notice was issued beyond the period of 30 days from the date of receipt of the memo of dishonour, the complaint is not maintainable. It was observed: - 13. The crucial question is as to which date the complainant received the information about the 17 ( 2025:HHC:26225 ) dishonour of the cheque? As per the appellant, the respondent complainant received the information about the dishonour of the cheque on 10-11-2008. However, the respondent complainant has disputed the same. However, we would like to add that at the time of arguments, the aforesaid submission of the appellant was not refuted. After the judgment was reserved, the complainant has filed an affidavit alleging therein that he received the bank memo of the bouncing of the cheque on 17-11-2008 and therefore, the legal notice sent on 17-12-2008 is within the period of 30 days from the date of information. 14. Normally, we would have called upon the parties to prove their respective versions before the trial court by leading their evidence. However, in the present case, as rightly pointed out by the learned Senior Counsel for the appellant, the complainant has accepted in the complaint itself that he had gone to the Bank for encashment of cheque on 10-11-2008 and the cheque was not honoured due to insufficiency of funds, thereby admitting that he came to know about the dishonour of the cheque on 10-11-2008 itself. It is for this reason that the appellant has filed a reply-affidavit stating that this is an afterthought plea, as no material has been filed before the court below to show that the Bank had issued a memo about the return of the cheque, which was received by the complainant on 17-11-2008. The specific averment made in the complaint on this behalf is as under: “Subsequently, the complainant again went to encash the cheque given by the accused on 10-11- 2008, which again bounced due to unavailability of balance in the accused's account.” It is, thus, clear from the aforesaid averment made by the complainant himself that he had gone to the Bank for encashing the cheque on 10-11-2008 and found that, because of unavailability of sufficient balance in the account, the cheque was bounced. Therefore, it becomes 18 ( 2025:HHC:26225 ) obvious that he had come to know about the same on 10-11-2008 itself. In view of this admission in the complaint about the information having been received by the complainant about the bouncing of the cheque on 10-11-2008 itself, no further enquiry is needed on this aspect. 15. It is, thus, apparent that the complainant received the information about the dishonour of the cheque on 10-11-2008 itself. However, he did not send the legal notice within 30 days thereafter. We, thus, find that the complaint filed by him was not maintainable as it was filed without satisfying all the three conditions laid down in Section 138 of the NI Act as explained in para 12 of the judgment in MSR Leathers [MSR Leathers v. S. Palaniappan, (2013) 1 SCC 177: (2013) 1 SCC (Civ) 424: (2013) 2 SCC (Cri) 458], extracted above. 22. Therefore, the learned Appellate Court had taken a reasonable view while acquitting the accused and no interference is required with the same while deciding the appeal against the acquittal. 23. In view of the above, the present appeal fails, and the same is dismissed. 24. A copy of the judgment and the record of the learned Courts below be sent back forthwith. (Rakesh Kainthla) Judge 05th August 2025 (Shamsh Tabrez)