1 2025:HHC:16985 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Revision No. 215 of 2022 Decided on : 29.5.2025 Devi Roop …Petitioner Versus State Bank of India …Respondent ___________________________________________ Coram Hon’ble Mr. Justice Virender Singh, Judge Whether approved for reporting? ________________________________________________ For the Petitioner : Petitioner in person with Mr. Pavinder, Advocate. For the Respondent : Mr. Arvind Sharma, Advocate. Virender Singh, Judge (oral) Petitioner Devi Roop has filed the present petition, against the judgment dated 26.2.2022, passed by the Court of learned Additional Sessions Judge-1I, Solan District Solan, H.P. (hereinafter referred to as ‘the Appellate Court’), in Criminal 2 2025:HHC:16985 Appeal No. 10AK/10 of 2019, titled as, ‘Devi Roop vs. SBI’. 2. By way of judgment dated 26.2.2022, learned Appellate Court has dismissed the aforesaid appeal. 3. The said appeal was preferred against the judgment of conviction, dated 28.9.2019 and order of sentence, dated 16.10.2019, passed by the Court of learned Judicial Magistrate, Ist Class, Arki, District Solan, H.P. (hereinafter referred to as ‘the trial Court’), in Criminal Case No. 154/3 of 2014, titled as, ‘State Bank of India versus Devi Roop’. 4. By way of judgment of conviction and order of sentence, as referred to above, the learned trial Court has convicted the petitioner (hereinafter referred to as ‘the accused’) for the commission of offence, punishable under Section 138 of Negotiable Instrument Act, (hereinafter referred to as ‘the N.I. Act’) and sentenced him to undergo simple imprisonment, for a period of six months and to pay a compensation of Rs. 2,60,000/- to the complainant. 3 2025:HHC:16985 5. For the sake of convenience, the parties, to the lis, are, hereinafter, referred to, in the same manner, in which, they were referred to, by the learned trial Court. 6. Brief facts, leading to the filing of the present revision petition, before this Court, as borne out from the record, may be summed up, as under: 6.1. Complainant-SBI filed a complaint under Section 138 of the NI Act, against the accused, on the ground that the accused had issued cheque No. 022407, dated 15.10.2014 (hereinafter referred to as ‘cheque in question’), amounting to Rs. 2,30,000/-, in favour of the complainant, on the basis of the fact that accused had represented to the Bank that he was interested to avail the loan/finance from the complainant-Bank, upon which, on 7.12.2011, the complainant-Bank financed a loan to the accused, to 4 2025:HHC:16985 the tune of Rs. 11,97,000/- for the purchase of a truck. 6.2 In this regard, an agreement was executed between the parties, duly signed by the accused. By way of said agreement, accused had agreed to abide by the terms and conditions of the agreement. The accused also promised to re-pay the amount of loan, alongwith interest, on the loan amount, in equal monthly installments. Thereafter, in order to clear his installments, accused issued the aforesaid cheque. The cheque, thereafter, was presented for encashment by the complainant to his banker, but, the same was dishonoured and was returned alongwith the memo, dated 15.10.2014, on account of “insufficient funds”. 6.3. Thereafter, the requisite legal notice was issued, on 21.10.2014, through registered A.D., calling upon the accused, to make the payment of the amount of the cheque in question, within fifteen days, after the receipt of the said notice, but, despite the receipt of notice, neither the same was replied, by the accused, 5 2025:HHC:16985 nor the payment was made. Subsequently, the complaint was filed before the learned trial Court, upon which, the learned trial Court issued a summoning order. 7. The learned trial Court found a prima facie case for commission of the offence, under Section 138 of the NI Act, as such, the notice was issued to the accused, vide order dated 25.2.2015. 8. After securing the presence of the accused, the learned trial Court found a sufficient ground for proceeding against the accused, for the commission of the offence, punishable under Section 138 of the NI Act, Notice of Accusation, was put to him, vide order, dated 24.2.2016. When the Notice of Accusation was put to the accused, he pleaded not guilty. 9. Thereafter, the complainant was directed to adduce evidence in order to substantiate the Notice of Accusation, put to the accused. After closure of evidence of the complainant, the statement of the accused was recorded, under Section 313 Cr.P.C., on 6 2025:HHC:16985 10.4.2019. The accused has opted to lead defence evidence, however, he has not produced the defence evidence. As such, his evidence was ordered to be closed, vide order, dated 7.8.2019. 10. Thereafter, learned trial Court, after hearing learned counsel for the complainant, as well as, learned counsel for the accused, has convicted the accused, for the commission of offence, punishable under Section 138 of the N.I. Act, and sentenced him, as referred to above. 11. Accused unsuccessfully assailed the said judgment of conviction and order of sentence, as referred to above, before the learned trial Court. However, his appeal met with the same fate, i.e. the appeal has been dismissed. 12. Feeling aggrieved from the said judgment, the present Criminal Revision has been filed, by the accused, before this Court, calling in question the judgment passed by the learned Appellate Court, as well as, the judgment of conviction and order of 7 2025:HHC:16985 sentence, passed by the learned trial Court, on the ground that the impugned judgment of conviction and order of sentence passed by the learned trial Court and upheld by the learned Appellate Court are patently perverse and against law and facts. 13. The findings of the learned trial Court have further been assailed on the ground that it has wrongly observed that accused has failed to discharge the burden by preponderance of probabilities. 14. It has further been pleaded that the learned trial Court has only relied upon the statement of respondent/complainant, whereas accused had obtained the loan of Rs. 11,97,000, but the learned trial Court has failed to consider this vital aspect. 15. On the basis of the grounds, as mentioned in the Criminal Revision, Mr. Pavinder, Advocate, appearing for the accused, has prayed that the present petition may kindly be allowed, by setting aside the judgment of conviction and order of sentence, passed 8 2025:HHC:16985 by the learned trial Court, as upheld by the learned Appellate Court. 16. The prayer, so made by the learned counsel for the accused, has been opposed by Mr. Arvind Sharma, Advocate, appearing for the complainant, on the ground that the learned trial Court, as well as, the learned Appellate Court, have rightly appreciated the evidence and now, in revisional jurisdiction, the evidence, so discussed by the learned trial Court, cannot be re-appreciated. Hence, a prayer has been made to dismiss the petition. 17. The findings of the learned trial Court, as upheld by the learned Appellate Court, can only be interfered with, if the same fall within the definition of ‘perverse findings’. In order to adjudge the fact as to whether the findings, so recorded, by the learned trial Court, falls within the definition of perverse findings, the evidence, so adduced, before the learned trial Court, has to be considered by this Court. 9 2025:HHC:16985 18. In this case, the Notice of Accusation was put to the accused, to which, he pleaded not guilty. Thereafter, the complainant examined the Branch Manager, who has produced the entire documents, which have been exhibited before the learned trial Court, as Ext. CW1/A to CW1/F. 19. In cross-examination, the authorized representative of the complainant has asserted the stand, as taken in the complaint. Despite the lengthy cross-examination, by the learned counsel for the accused, nothing material could be elicited from which, presumption, which is in favour of the complainant, being holder in due course, can be said to be rebutted. 20. In addition to this, the complainant has also examined Naveen Kumar, who has proved the statements of account of accused Devi Roop, as Ext. CW2/A and CW2/B. This witness has admitted that the complainant-Bank has taken in possession the vehicle, so financed, by it, and the same has been sold. 10 2025:HHC:16985 He has further deposed that sale proceeds of the said truck have been deposited in the loan account of the accused. 21. On the basis of above facts, this Court is of the view that from the cross-examination of the above two witnesses, accused could not rebut the presumption, which is there, in favour of the complainant, being holder in due course. As such, the findings, recorded by the learned trial Court, cannot be said to be ‘perverse findings’. 22. Even otherwise,this Court, while exercising the revisional jurisdiction, cannot re-appreciate the evidence, until or unless the findings recorded by the learned trial Court, as upheld by the learned Appellate Court, have been held to be perverse. 23. While holding so, the view of this Court is being guided by the decision of the Hon’ble Supreme Court, in State of Maharashtra versus Jagmohan Singh Kuldip Singh Anand and others, reported as 11 2025:HHC:16985 (2004) 7 SCC 659. Relevant paragraph-23, of the judgment, is reproduced, as under:- “23. On this aspect, it is sufficient to refer to and rely on the decision of this court in Duli chand vs. Delhi Administration, [AIR 1975 SC 1960], in which it is observed thus :- “The High Court in revision was exercising supervisory jurisdiction of a restricted nature and, therefore, it would have been justified in refusing to re-appreciate the evidence for the purposes of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned additional Sessions Judge was correct. But even so, the High Court reviewed the evidence presumably for the purpose of satisfying itself that there was evidence in support of the finding of fact reached by the two subordinate courts and that the finding of fact was not unreasonable or perverse." 24. In the light of the aforesaid judgment, this Court is of the view that the findings, so recorded by the learned trial Court, as upheld by the learned Appellate Court, do not fall within the definition of ‘perverse findings’. As such, the same do not require any interference, by this Court. 25. In this case, admittedly, the accused has deposited the entire amount of compensation, as awarded by the learned trial Court, vide order of sentence, dated 16.10.2019. Admittedly, the complainant-Bank has not bothered to file the appeal 12 2025:HHC:16985 for enhancement of the compensation, till date. In order to show his bonafide, the accused, in this case, has moved an application bearing Cr.M.P. No. 1281 of 2025, for compounding of the offence, however, the offer of the petitioner to compound the offence, has been declined. Consequently, Cr. M.P. No. 1281 of 2025 has been dismissed as not pressed, on 22.5.2025. 26. However, considering the fact that the accused has already deposited the amount of compensation, the material question, which arises for determination, before this Court, is with regard to the fact, as to whether quantum of sentence, as inflicted by the learned trial Court is liable to be modified, in this regard? 27. The amount of compensation is stated to have been deposited, as such, considering the true import of the provisions of Section 138 of the N.I. Act, this Court is of the view that order of sentence, is liable to be modified. 13 2025:HHC:16985 28. At this stage, learned counsel for the complainant has relied upon the judgment of Hon’ble Supreme Court in P. Ramadas vs. State of Kerala & anr., reported in (2018) 3 Supreme Court Cases 287. The Hon’ble Supreme Court, in the said case, has inflicted the additional compensation, in lieu of waiving/modifying the simple imprisonment. Relevant paragraphs 6, 7 and 8 of the judgment are reproduced as under: “6. After considering the submissions and going through the record of the case, we are of the opinion that it is not possible to interfere with the concurrent finding of fact regarding the finding of guilt recorded against the appellant. Thus, no interference is warranted against the order of conviction. The only question that must receive our attention is about the sentence awarded to the appellant. 7. Having regard to the fact that the appellant has already deposited the compensation amount of Rs. 2,45,000/- and also deposited further amount of Rs. 1,00,000 (Rupees one lakh) as directed by this Court on 15.1.2018, what remains to be complied with by the appellant in terms of the decision of the trial Court, is to undergo simple imprisonment for 3 months. 8. Considering the fact that the appellant has complied with the direction given by this Court vide order dated 14 2025:HHC:16985 15.1.2018 and taking overall view of the order regarding simple imprisonment of three months is modified and in lieu thereof, additional compensation of Rs. 1,00,000/- (Rupees one lakh only), already deposited by the appellant before the trial Court, is directed to be made over to respondent No. 2. In other words, Respondent No. 2 is free to withdraw the additional compensation amount of Rs. 1,00,000/- (Rupees one lakh only) already deposited by the appellant before the trial Court. This amount be paid to respondent No. 2 subject to verification of his identity.” 29. With due respect to the law laid down by the Hon’ble Apex Court, the same is not applicable to the facts and circumstances of the case, as, in this case, when, Cr.M.P. No. 1130 of 2022, was decided by this Court on 2.6.2022, the following order has been passed: “In this view of the matter, it is ordered that till further orders, the sentence imposed upon the applicant/petitioner by the Court of learned Judicial Magistrate, 1st Class, Arki, District Solan, H.P., in Criminal Case No. 154/3 of 2014, titled as State Bank of India versus Devi Roop, decided on 28.09.2019, as affirmed by learned Additional Sessions Judge-II, Solan, District Solan, H.P., in Criminal Appeal No. 15 2025:HHC:16985 10AK/10 of 2019, titled as Devi Roop Vs. SBI (State Bank of India), decided on 26.02.2022, shall remain suspended subject to furnishing of personal bail bond to the tune of Rs. 20,000/- by the applicant with one surety in the like amount to the satisfaction of learned Trial Court within a period of four weeks from today, with an undertaking therein that the applicant shall appear in the Court as and when directed and shall surrender to serve out the sentence imposed, in case his revision is ultimately dismissed. Application stands disposed of.” 30. The order of sentence has been suspended, simply on furnishing bail bonds, to the tune of Rs. 30,000/- with one surety, in the like amount, to the satisfaction of the learned trial Court. Meaning thereby, the amount of compensation, has voluntarily been deposited by the petitioner, in this case, whereas, in the case before the Hon’ble Supreme Court, the amount of compensation was deposited, in pursuance of the directions, issued by the Court. As such, no benefit can be derived by the complainant from the said case. 16 2025:HHC:16985 31. However, in view the peculiar facts and circumstances of the present case, i.e. the deposit of the entire amount of compensation, by the accused, and the nature and scope of the offence, punishable under Section 138 of the NI Act, in the considered opinion of this Court, once, the entire amount of compensation has been deposited and that the complainant has not filed any appeal, or proceedings, for enhancement of compensation, the order of sentence, passed by the learned trial Court, is liable to be interfered with, as, law is good, but, justice is better. 32. In the absence of any sentencing policy, although, the same is in the exclusive domain of the trial Court, but, considering the subsequent development, i.e. the deposit of the compensation amount by the accused and the nature of the proceedings under Section 138 of the NI Act, this Court is of the view that the punishment, in the present case, is on the higher side. 17 2025:HHC:16985 33. My this view is fortified by the decision of the Hon’ble Supreme Court in P. Mohanraj and others versus Shah Brothers Ispat Private Limited, (2021) 6 SCC 258. Relevant paragraph 45, of the judgment, is reproduced, as under:- “45. Section 138 contains within it the ingredients of the offence made out. The deeming provision is important in that the legislature is cognizant of the fact that what is otherwise a civil liability is now also deemed to be an offence, since this liability is made punishable by law. It is important to note that the transaction spoken of is a commercial transaction between two parties which involves payment of money for a debt or liability. The explanation to Section 138 makes it clear that 14 2025:HHC:14229 such debt or other liability means a legally enforceable debt or other liability. Thus, a debt or other liability barred by the law of limitation would be outside the scope of Section 138. This, coupled with fine that may extend to twice the amount of the cheque that is payable as compensation to the aggrieved party to cover both the amount of the cheque and the interest and costs thereupon, would show that it is really a hybrid provision to enforce payment under a bounced cheque if it is otherwise enforceable in civil law. Further, though the ingredients of the offence are contained in the first part Section 138 when the cheque is returned by the bank unpaid for the reasons given in the Section, the proviso gives an opportunity to the drawer of the cheque, stating that the drawer must fail to make payment of the amount within 15 days of the receipt of a notice, again making it clear that the real object of the provision is not to penalise the wrongdoer for an offence that is already made out, but to compensate the victim.” (self emphasis supplied) 26. In the light of the aforesaid decision and considering the fact that under the NI Act, no minimum punishment has been provided, for the offence, punishable under Section 138 of the NI Act, this Court is of the view that the quantum of punishment is liable to be modified. Consequently, the ends of justice would be met, in case, the accused is sentenced to undergo punishment ‘till the rising of the Court’. (Self emphasis supplied) 34. In the light of the aforesaid decision and considering the fact that under the NI Act, no minimum punishment has been provided, for the 18 2025:HHC:16985 offence, punishable under Section 138 of the N.I. Act, this Court is of the view that the quantum of punishment is liable to be modified. Consequently, the ends of justice would be met, in case, the accused is sentenced to undergo ‘till the rising of the Court’. 35. In view of the above, the judgment of conviction, passed by the learned trial Court, is upheld, but, the appeal is partly allowed, to the extent of quantum of sentence, by modifying the same, as mentioned above. 36. Pending miscellaneous applications, if any, are disposed of accordingly. 37. Send down the record. (Virender Singh) Judge May 29, 2025 (Kalpana)