2025:HHC:31346 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 249 of 2013 Reserved on: 27.08.2025 Date of Decision: 12.09.2025 Om Kumari & others ... Appellants Versus Om Prakash ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Appellants : Mr. R.K. Sharma, Senior Advocate, with Mr. Arun Kumar, Advocate. For the Respondent : Mr. Adarsh Kumar Vashista, Advocate. Rakesh Kainthla, Judge The appellant has filed the present appeal against the judgment dated 29.04.2013 passed by learned Judicial Magistrate First Class, Court No. 1, Palampur, District Kangra, H.P. (learned Trial 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:31346 2. The appellant (original complainant) died during the pendency of the present appeal before this Court, and his legal representatives were substituted vide order dated 08.01.2014. 3. 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 accused and complainant were known to each other. The accused demanded ₹3,00,000/- from the complainant on 11.01.2011. The accused advanced a sum of ₹3,00,000/- by taking a loan of ₹2,00,000/- and ₹1,00,000/- from his personal savings. The accused issued a cheque of ₹3,00,000/- drawn on State Bank of Patiala, Paprola, to discharge his legal liability. The complainant presented the cheque before the bank, but it was dishonoured with an endorsement ‘payment stopped by the drawer’. The complainant issued a notice to the accused demanding the amount, but it was returned with an endorsement that the accused was away from his house. The accused did not pay any money to the complainant. Hence, the complaint was filed before the learned Trial Court for taking action against the accused as per the law. P a g e | 3 2025:HHC:31346 4. 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. 5. The complainant examined himself (CW1) and Vikram Ram (CW-2) to prove his case. 6. The accused, in his statement recorded under Section 313 of Cr.P.C., stated that he had taken a sum of ₹80,000/- from the complainant, which he had returned alongwith interest. He issued the cheque as security, but closed the account thereafter. A false case was made against him. He examined Kartar Singh (DW- 1) in his defence. 7. Learned Trial Court held that the plea taken by the accused that the cheque was issued as a security and not towards the liability was probable. The cheque was dishonoured with an endorsement ‘payment stopped by the drawer’. The notice was issued to the accused, but it was returned unclaimed because the accused had gone out of the station for 15-20 days. Since the issuance of the cheque for the discharge of the legal liability was P a g e | 4 2025:HHC:31346 not established; hence, the accused was acquitted of the commission of an offence punishable under Section 138 of the NI Act. 8. Being aggrieved by the judgment passed by the learned Trial Court, the complainant has filed the present appeal asserting that the learned Trial Court erred in relying upon the evidence of the accused. The complainant’s testimony was wrongly discarded. The accused admitted the issuance of the cheque, and a presumption arose that it was issued for consideration in discharge of the liability. The defence taken by the accused that he had taken a loan of ₹80,000/- and had issued a cheque as security was not put to the complainant in the cross-examination. Therefore, this defence was not probable. Learned Trial Court erred in acquitting the accused. Hence, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. 9. I have heard Mr R.K. Sharma, learned Senior Counsel, assisted by Mr Arun Kumar, learned counsel for the appellant/complainant and Mr Adarsh Kumar Vashista, learned counsel for the respondent/accused. P a g e | 5 2025:HHC:31346 10. Mr R.K. Sharma, learned Senior Counsel for the complainant, submitted that the learned Trial Court erred in acquitting the accused. The accused admitted the issuance of the cheque, and a presumption arose that the cheque was issued in discharge of the legal liability. The accused failed to rebut this presumption. Learned Trial Court erred in holding that the plea taken by the accused that the cheque was issued as security was highly probable. Even if the cheque was issued as a security, its dishonour gives rise to a legal liability under Section 138 of the NI Act. Therefore, he prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. 11. Mr. Adarsh Kumar Vashista, learned counsel for the respondent/accused, supported the judgment passed by the learned Trial Court and submitted that no interference is required with it. 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: P a g e | 6 2025:HHC:31346 (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 at page 440: “23. 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 [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: P a g e | 7 2025:HHC:31346 (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 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 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, 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.” P a g e | 8 2025:HHC:31346 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.” 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 P a g e | 9 2025:HHC:31346 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.” 24. 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. The present appeal is required to be decided as per the parameters laid down by the Hon’ble Supreme Court. 15. The complainant stated in his cross-examination that he had taken a personal loan of ₹2,00,000/- from his bank, but he had not mentioned this fact in his complaint. He paid the amount to the accused after the accused had handed over the cheque to him. He denied that the accused had taken a loan of ₹80,000/- and had issued the cheque as security. 16. The statement of account (Ext.CW-1/F) shows that ₹2,00,000/-were transferred to account No. xxxx899 on 11.01.2011. 17. The record does not mention the name of the owner of account No. xxxx899. Vikram Ram (CW-2) brought the record of the account No. xxxx939 of the accused. It does not contain any P a g e | 10 2025:HHC:31346 entry of the receipt of ₹2,00,000/-. The statement of account of the complainant also pertains to the account No. xxxx589. The complainant claimed in the written arguments filed by him that the amount was withdrawn from his bank account bearing No. xxxxx032, but this fact is missing from the complaint or the statement on oath. The statement of account no. xxxx032 was also not brought on record. Hence, the material on record does not show that ₹2,00,000/- was transferred by the complainant to the account of the accused or withdrawn by the complainant from his account. 18. The statement of account (Ext.CW-1/F) shows that interest @ 14.25% per annum was being charged from the complainant. The complainant did not mention that the accused had agreed to pay any interest to the complainant. It is difficult to believe that the complainant would have advanced the money to the accused without charging any interest, when he himself was paying interest @14.25% per annum to the bank. In John K. John v. Tom Varghese, (2007) 12 SCC 714, the Hon’ble Supreme Court doubted the transaction because ‘Not only had no document been executed, even no interest had been charged’. P a g e | 11 2025:HHC:31346 19. The complainant admitted in his cross-examination that the accused had handed over the cheque first, and thereafter, money was advanced to him. This is corroborated by the fact that the cheque was issued on 11.01.2011, the day on which money was advanced to the accused. Hence, the learned Trial Court had rightly held that the cheque was issued as security. 20. Once it is held that the cheque was issued as a security, the complainant was required to establish that the accused had a subsisting liability of ₹3,00,000/- on the date of the presentation of the cheque. It was laid down by the Hon'ble Supreme Court in Sampelly Satyanarayana Rao vs. Indian Renewable Energy Development Agency Limited 2016(10) SCC 458 that the liability will arise on a security cheque if the amount was due on the date of the presentation of the cheque and not otherwise. It was observed: 10….If on the date of the cheque, liability or debt exists or the amount has become legally recoverable, the Section is attracted and not otherwise. Xxxx 13. The crucial question to determine the applicability of Section 138 of the Act is whether the cheque represents the discharge of existing enforceable debt or liability, or whether it represents an advance payment without there being a subsisting debt or liability. While approving the views of different High Courts noted earlier, this is the underlying principle as can P a g e | 12 2025:HHC:31346 be discerned from the discussion of the said cases in the judgment of this Court.” (Emphasis supplied) 21. In the present case, there is unsatisfactory evidence to show that the amount of ₹2,00,000/-, transferred to the account no xxx 899, was paid to the accused. Therefore, the learned Trial Court was justified in holding that the issuance of the cheque in discharge of the liability/debt was not proved on record. 22. It was submitted that the cheque carried with it a presumption that it was issued in discharge of the liability for consideration. Therefore, the burden is upon the accused to rebut the presumption. 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, 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 P a g e | 13 2025:HHC:31346 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’.” 23. 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 N I 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. 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 P a g e | 14 2025:HHC:31346 Mohan, (2010) 11 SCC 441 : (2010) 4 SCC (Civ) 477 : (2011) 1 SCC (Cri) 184: AIR 2010 SC 1898]” 24. In the present case, the cross-examination of the complainant and documents placed on record made the advancement of the loan highly doubtful, and the presumption stood rebutted. 25. Thus, the learned Trial Court had taken a reasonable view while acquitting the accused, and this Court will not interfere with the reasonable view of the learned Trial Court, even if another view is possible. 26. In view of the above, the present appeal fails, and the same is dismissed, so are the pending application(s), if any. 27. Record of the learned Trial Court be sent back forthwith, along with a copy of this judgment. (Rakesh Kainthla) Judge 12th September, 2025 (ravinder)