2026:HHC:21280 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP (M) No. 1664 of 2025 Reserved on: 29.04.2026 Date of Decision: 03.06.2025 Kiran Kumar ...Applicant/Appellant Versus Paro Devi ..Non-applicant/Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the applicant/ appellant: Mr Mukul Sood, Advocate. For the non-applicant/ Respondent : Mr Ajay Kumar Dhiman, Advocate. Rakesh Kainthla, Judge The applicant/appellant has filed the present application seeking leave to appeal against the judgment dated 19.02.2025, passed by the learned Additional Chief Judicial Magistrate, Court No.1, Hamirpur, District Hamirpur, H.P. (learned Trial Court), vide which the respondent (accused before the learned Trial Court) was acquitted of the commission of an offence punishable under Section 138 of the Negotiable 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2026:HHC:21280 Instruments Act (N I Act). (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.) 2. Briefly stated, the facts giving rise to the present application are that the complainant filed a complaint before the learned Trial Court for the commission of an offence punishable under Section 138 of the NI Act. It was asserted that the complainant stood as guarantor for the firm of the accused, by pledging his Fixed Deposit Receipt (FDR) and immovable property. The accused defaulted, and the bank recovered the money from the complainant. The accused executed an agreement to sell in favour of the complainant, but she failed to honour the terms and conditions of the agreement. She issued a cheque of ₹50 Lacs to the complainant to compensate him. The complainant deposited the cheque with Punjab National Bank, Jahu, but it was dishonoured with the remarks ‘insufficient funds’ vide memo dated 26.02.2018. The complainant served a notice dated 27.03.2018 upon the accused asking her to pay the amount. The accused sent the reply and refused to pay the amount. Hence, a complaint was filed before the learned Trial Court for taking action as per the law. 3 2026:HHC:21280 3. The learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, a notice of accusation was put to her for the commission of an offence punishable under Section 138 of the NI Act, to which she pleaded not guilty and claimed to be tried. 4. The complainant examined Nitin Sharma (CW-1), Rajesh Kumar (CW-2), Kamal Deep Sharma (CW-3) and himself (CW-4) to prove his complaint. 5. The accused, in her statement recorded under section 313 of the Code of Criminal Procedure (Cr.P.C), admitted that the complainant had stood guarantor for her firm by pledging FDRs and immovable property. She admitted that she had agreed to sell the land to the complainant. She denied the rest of the complainant’s claim. She asserted that the complainant had filed a false complaint against her by misusing the cheque in connivance with Shagun Chaddha. She examined Deepak Kumar (DW-1) and Ram Kumar (DW-2) to prove her defence. 6. The learned Trial Court held that Nitin Sharma (CW- 1) stated that the cheque was dishonoured on 03.01.2018 and was returned to the drawer on the same day. The complainant also 4 2026:HHC:21280 admitted in his cross-examination that the cheque was dishonoured on 03.01.2018 and was returned to him on the same day. He admitted that he had never presented the cheque again. He admitted his signature on the cheque return Memo Register. The return memo (Ext.CW1/A) mentioned the date 26.02.2018 in red ink, whereas the rest of the document was in blue ink, which made it doubtful that the cheque was dishonoured on 26.02.2018. The complainant sent the notice on 27.03.2018 beyond the period of 30 days prescribed under Section 138 of the NI Act. Therefore, the essential ingredient that the notice should have been issued within 30 days from the date of the dishonour was missing in the present case. Hence, the learned trial Court acquitted the accused. 7. Being aggrieved by the judgment passed by the learned Trial Court, the complainant has filed the present appeal asserting that the issuance of the cheque was duly proved on record. There is a presumption in favour of the holder of the cheque that the cheque was issued for consideration to discharge a debt/liability. Learned Trial Court ignored this presumption. The complainant had presented the cheque on 02.01.2018, and it was dishonoured twice for insufficiency of 5 2026:HHC:21280 funds. A separate return memo was issued for the second dishonour. The learned Trial Court erred in holding that the date of the dishonour in red ink in the memo made it doubtful. This conclusion is not supported by any evidence, as no person had deposed about any manipulation in the return memo. Therefore, it was prayed that the present application be allowed and the leave to appeal be granted to the complainant. 8. I have heard Mr Mukul Sood, learned counsel for the applicant/appellant and Mr Ajay Kumar Dhiman, learned counsel for the non-applicant/accused. 9. Mr Mukul Sood, learned counsel for the applicant/appellant, submitted that the learned Trial Court erred in holding that the notice was issued beyond the period of 30 days from the date of the receipt of the memo of dishonour. The cheque was presented twice, and it was dishonoured on 26.02.2018. The notice was issued within 30 days of the date of dishonour. Hence, he prayed that the present application be allowed and the leave to appeal be granted to the applicant/appellant. 6 2026:HHC:21280 10. Mr Ajay Kumar Dhiman, learned counsel for the respondent/accused, submitted that the complainant has not produced two memos of dishonour before the Court. His witness Nitin Kumar (CW-1) specifically stated that the cheque was dishonoured and returned to the complainant on 02.01.2018. Learned Trial Court had taken a reasonable view while holding that the notice was not issued within the stipulated period; therefore, he prayed that the present application be dismissed. 11. I have given considerable thought to the submissions made at the bar and have gone through the record carefully. 12. The ingredients of an offence punishable under Section 138 of the NI Act were explained by the Hon’ble Supreme Court in Kaveri Plastics v. Mahdoom Bawa Bahrudeen Noorul, 2025 SCC OnLine SC 2019 as under: - 5.1.1. In K.R. Indira v. Dr. G. Adinarayana (2003) 8 SCC 300, this Court enlisted the components, aspects and the acts, the concatenation of which would make the offence under Section 138 of the Act complete, to be these (i) drawing of the cheque by a person on an account maintained by him with a banker, for payment to another person from out of that account for discharge in whole/in part of any debt or liability, (ii) presentation of the cheque by the payee or the holder in due course to the bank, (iii) returning the cheque unpaid by the drawee bank for want of sufficient funds to the credit of the drawer or any arrangement with 7 2026:HHC:21280 the banker to pay the sum covered by the cheque, (iv) giving notice in writing to the drawer of the cheque within 15 days of the receipt of information by the payee from the bank regarding the return of the cheque as unpaid demanding payment of the cheque amount, and (v) failure of the drawer to make payment to the payee or the holder in due course of the cheque, of the amount covered by the cheque within 15 days of the receipt of the notice. 13. Nitin Sharma (CW-1) stated that the cheque (Ext.CW-1/B) was received in the bank, but it was dishonoured with an endorsement ‘insufficient funds’. He stated in his cross- examination that the cheque was dishonoured on 03.01.2018 and was returned to the complainant on the same day. He produced a copy of the cheque return register (Ext.C-1) on record. 14. This witness was put forward as a witness of truth by the complainant, and his testimony would bind the complainant. He had specifically asserted that the cheque was dishonoured on 03.01.2018. He was not re-examined to clarify that the cheque was presented twice and it was dishonoured again on 26.02.2018. His statement is duly corroborated by the cheque return register (Ext.C-1), in which the date of return of the cheque has been mentioned as 03.01.2018. 8 2026:HHC:21280 15. Complainant (CW-4) stated in his cross- examination that he had presented the cheque before Punjab National Bank Jahu 02.01.2018 and the bank had returned the cheque on 03.01.2018. He had presented the cheque for encashment after 02nd January, then again corrected to say that he had never presented the cheque after 2nd January. He stated that he had received the cheque return memo as per the register (Ext.C-1) on 03.01.2018. 16. The admissions made by the complainant clearly show that he had presented the cheque once and not twice. He had received the cheque return memo on 03.01.2018. The submission made on behalf of the plaintiff that the cheque was presented twice is based upon no material at all. The complainant never stated in the complaint that the cheque was presented twice. Only one memo of dishonour was placed on record, and not two memos of dishonour. The complainant had claimed in para. 5 that the cheque was dishonoured on 26.02.2018, but the record and the witnesses produced by him do not support such a conclusion. Therefore, the submission that the cheque was presented twice and it was dishonoured on 26.02.2018 on the second occasion is not acceptable. 9 2026:HHC:21280 17. Indisputably, the notice issued on 27.03.2018 was beyond the period of 30 days from the date of receipt of the intimation of dishonour of the cheque. It was laid down by the Hon’ble Supreme Court in Uniplas India Ltd. v. State (Govt. of NCT of Delhi), (2001) 6 SCC 8: 2001 SCC OnLine SC 812 that where no notice is issued within the time, no cause of action arises. It was observed at page 12: 11. One of the indispensable factors to form the cause of action envisaged in Section 138 of the NI Act is contained in clause (b) of the proviso to that section. It involves the making of a demand by giving a notice in writing to the drawer of the cheque “within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid”. If no such notice is given within the said period of 15 days, no cause of action could have been created at all. *** 13. The appellants have not stated that the interval between the date of the earlier dishonour of the cheque and the notice dated 1-12-1995 did not exceed the statutory period of 15 days. To a query by us, learned counsel for the appellants candidly admitted that the notice of 1-12-1995 was issued only after the expiry of 15 days from receipt of the intimation from the Bank regarding the dishonour. If so, the said dishonour remained without any further escalation and need not snowball into a cause of action. Its corollary is that the payee was not prevented from presenting the cheque once again within the permitted period and to make use of such presentation and the subsequent dishonour for a cause of action to be founded for launching a complaint, as in the present case. We therefore dismiss this appeal. 10 2026:HHC:21280 18. Therefore, the learned Trial Court had taken a reasonable view while holding that the cheque return memo was received by the complainant on 03.01.2018 and the notice issued by him was beyond the stipulated period. This was a reasonable view that could have been taken based on the material placed before the learned trial court, and no interference is required with the reasonable view of the learned Trial Court while hearing an appeal against acquittal. 19. No other point was urged. 20. In view of the above, the present application fails, and it is dismissed. Filing No. Cr.AST/4833of 2025 21. In view of the dismissal of the application for the grant of leave to appeal, the proposed appeal also stands disposed of, so also the pending application(s), if any. 22. Record of the learned Trial Court be sent back forthwith. (Rakesh Kainthla) Judge 03rd June, 2026. (ravinder)