2026:HHC:20057 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Revision No.29 of 2025 Date of Decision: 26.5.2026 _____________________________________________________________________ Hans Raj ……...Petitioner Versus Hans Raj …....Respondent Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? For the Petitioner: Mr. Suresh Singh Saini, Advocate. For the Respondent: Mr. Narender Guleria, Advocate. ___________________________________________________________________________ Sandeep Sharma, J. (Oral) Instant criminal revision petition, lays challenge to judgment dated 2.8.2024, passed by the learned Sessions Judge, Mandi, District Mandi, Himachal Pradesh, in Criminal Appeal CIS Regd. No. 67 of 2024, affirming the judgment of conviction and order of sentence dated 12.3.2024, passed by the learned Judicial Magistrate First Class-3, Mandi, District Mandi, Himachal Pradesh, in Criminal Complaint No. 834 of 2021 (CNR No. HPMA-020066372021), whereby the learned trial Court while holding the petitioner-accused guilty of having committed offence 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 eight months and pay compensation to the tune of Rs. 13,00,000/- to the complainant. 2026:HHC:20057 2 2. Precisely, the facts of the case, as emerge from the record are that respondent/complainant lodged complaint under Section 138 of the Act before the competent court of law, alleging therein that accused with a view to discharge his liability issued cheque bearing No.278164 dated 14.9.2021, amounting to Rs.10,00,000/-, drawn at State Bank of India, Branch Sadar, Bilaspur, District Mandi, Himachal Pradesh, in favour of the complainant, however cheque on its presentation to the bank concerned was dishonoured with remarks “Funds Insufficient” vide memo dated 18.10.2021. Immediately, after receipt of aforesaid memo, complainant served legal notice dated 8.11.2021 upon the accused, thereby calling upon him to make the payment good within stipulated time, but since despite receipt of notice, accused failed to make the payment, complainant had no option, but to initiate 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 12.3.2024, held the petitioner-accused guilty of 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 court below, petitioner-accused preferred an 2026:HHC:20057 3 appeal before the learned first appellate Court, but the same was dismissed vide judgment dated 2.8.2024. In the aforesaid background, accused has approached this Court in the instant proceedings, praying therein to set- aside the judgment of conviction and order of sentence recorded by the court below. 5. Vide order dated 6.1.2025, this Court suspended the substantive sentence imposed by the court below, subject to petitioner’s depositing 50% of the compensation amount and furnishing personal bonds in the sum of Rs.50,000/- with one surety in the like amount to the satisfaction of the trial Court. Though afore order was complied with, but thereafter matter was repeatedly adjourned on the request of the petitioner, enabling him to deposit the balance amount, but nothing has been done. Repeatedly, this Court came to be apprised that talks for amicable settlement are going on inter-se complaint and petitioner-accused, but fact remains that till date, no compromise, if any, has been placed on record and as such, this Court has no option but to decide the petition on merit. 6. Having carefully perused grounds taken in the appeal vis-à-vis reasoning assigned by the learned Sessions Judge, thereby affirming the judgment of conviction and order of sentence passed by the learned trial Court, this Court is not persuaded to agree with learned counsel appearing for the petitioner that courts below have failed to appreciate the evidence in 2026:HHC:20057 4 its right perspective, rather this Court finds that both the courts below have dealt with each and every aspect of the matter very meticulously and there is no scope of interference. 7. In his statement recorded under Section 313 CrPC, accused claimed himself to be innocent, but he nowhere disputed factum with regard to issuance of cheque as well as signature thereupon, rather he attempted to set up a case that cheque in question was actually issued to Anil Kumar, but same was misused by the complainant. Accused, who was afforded an opportunity to lead evidence in his defence, examined Sh. Pawan Kumar as DW1 and thereafter, closed the evidence by order of the Court. To probablise afore defence, he never examined Anil Kumar, in whose favour, he allegedly had issued cheque which was ultimately misused by the complainant. 8. Since factum with regard to issuance of cheque as well as signature thereupon never came to be disputed, no illegality can be said to have been committed by the courts below while invoking Sections 118 and 139 of the Negotiable Instruments Act, which clearly provide that there shall be presumption available in favour of the holder of the cheque that same was issued in discharge of the lawful liability. No doubt, aforesaid presumption is rebuttable, but for that purpose, accused is/was under obligation to raise probable defence. Probable defence could be raised by 2026:HHC:20057 5 the accused by referring to the documents as well as evidence adduced on record by the complainant or by leading some cogent and convincing evidence. However, in the case at hand, accused, despite sufficient opportunity, failed to raise probable defence. 9. 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 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 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 2026:HHC:20057 6 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 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 2026:HHC:20057 7 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.” 10. To the contrary, complainant examined himself as CW1 and tendered his evidence by way of affidavit Ext.CW1/A, thereby reiterating contents of the complaint. Besides above, he also tendered on record agreements dated 25.3.2019, 16.9.2019, 30.1.2020 Ext.CW1/B, Ext.CW1/C & Ext.CW1/D, cheque Ext.CW1/E, return memo Ext.CW1/F, legal notice Ext.CW1/G, postal receipt Ext.CW1/H and acknowledgement Ext.CW1/J. Before tendering afore documents, complainant successfully proved on record that cheque in question was issued towards discharge of lawful liability, but same was dishonoured on account of insufficient funds in the bank account of the accused. Complainant also proved that before initiating complaint under Section 138 of the Act, he served the accused with legal notice calling upon him to make the payment good, but he had no option but to institute complaint under Section 138 of the Act. Cross- 2026:HHC:20057 8 examination conducted upon afore witness nowhere suggests that accused was able to extract something contrary to what this witness stated in examination-in-chief. In his cross-examination, this witness while admitting that he knows the accused for last four years, stated that accused required money for the purpose of renovating his hotel at Manali and as such, he lent Rs. 40,000/- in cash and sum of Rs. 4,60,000/- was withdrawn from the saving bank account and in total, sum of Rs. 5,00,000/- was given by way of cheque. 11. Accused with a view to probablise defence examined Mr. Pawan Kumar, as DW1, who while stating that he knows the accused, also stated that he knows Anil Kumar Tiwari, R/o Ner Chowk. He stated that in the year 2018, he met with the accused in hotel of Anil Kumar, where in his presence, accused issued a security cheque to Anil Kumar. In his cross- examination, he could not disclose the number and sequence of the cheque given by the accused to Anil Kumar. By examining the aforesaid witness, accused attemtped to carve out a case that cheque in question was actually issued in the name of Anil Kumar, but same was misused, however, to prove aforesaid fact, if any, accused ought to have examined Anil Kumar, but he was never examined. 12. By now it is well settled that dishonour of cheque issued as security can also attract offence under Section 138 of the Negotiable 2026:HHC:20057 9 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. 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 2026:HHC:20057 10 cheque in question is issued, same would attract provision of Section 138 of the Act in case of its dishonour. 14. 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 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.” 15. Since after having carefully examined the evidence in the present case, this Court is unable to find any error of law as well as fact, if 2026:HHC:20057 11 any, committed by the courts below while passing impugned judgments, there is no occasion, whatsoever, to exercise the revisional power. 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 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. 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 2026:HHC:20057 12 before the learned trial Court within thirty days to serve the sentence as awarded by the learned trial Court, if not already served. Interim direction, if any, stands vacated. Learned court below is also directed to release the amount, if any, deposited before it by the accused, on filing appropriate application by the complainant within one week. Pending applications, if any, also stand disposed of. May 26, 2026 (Sandeep Sharma), (manjit) Judge