2026:HHC:21315 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Revision No.64 of 2019 Reserved on: 22.5.2026 Decided on: 3 .6.2026 _____________________________________________________________________ Dinesh Kumar ……...Petitioner Versus Anil Kumar and Anr. …....Respondents Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? For the Petitioner: Mr. Sanjeev Bhushan, Senior Advocate with Mr. Sparsh Bhushan, Advocate. For the Respondent: Mr. Vikrant Chandel, Advocate, for respondent No.1. Mr. Rajan Kahol & Mr. Vishal Panwar, Additional Advocates General and Mr. Ravi Chauhan & Mr. Anish Banshtu, Deputy Advocates General, for the State. ___________________________________________________________________________ Sandeep Sharma, J. Instant criminal revision petition filed under Section 438 read with Section 442 of Bharatiya Nagarik Suraksha Sanhita, 2023 (in short “BNSS”), lays challenge to judgment dated 4.1.2019, passed by the learned Sessions Judge, Hamirpur, District Hamirpur, Himachal Pradesh, in Criminal Appeal No. 25 of 2016, affirming the judgment of conviction dated 25.6.2016 and order of sentence dated 27.6.2016, passed by the learned Additional Chief Judicial Magistrate Nadaun, District Hamirpur, Himachal Pradesh in Criminal Complaint No. 55-1/2011, whereby the learned trial 2026:HHC:21315 2 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 six months and pay compensation to the tune of Rs. 7,50,750/- to the respondent/complainant. 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 Additional Chief Judicial Magistrate Nadaun, District Hamirpur, Himachal Pradesh, alleging therein that he on the request of the accused, who was well known to him, advanced sum of Rs. 3,50,000/- for purchase of a vehicle, on the assurance that he would return the afore amount in December 2010, however in June 2010, accused again requested the complainant to advance sum of Rs. 4,00,000/-, for purchasing one more vehicle. In the month of July 2010, complainant again advanced sum of Rs. 3,65,000/- to the accused, but fact remains that aforesaid sums of Rs. 3,50,000/- and Rs. 4,00,000/- advanced by the complainant were not returned well within time and in the month of October 2010, accused issued cheque bearing registration No.668036 dated 28.10.2010, amounting to Rs.7,15,000/-, in favour of the complainant, however cheque on its presentation to the bank concerned was dishonoured with remarks “Funds Insufficient” vide memos Ext.CW1/C & 2026:HHC:21315 3 Ext.CW1/D. After receipt of aforesaid memos, complainant immediately served the accused with legal notice dated 29.4.2011 (Ext.CW1/E), thereby calling upon him to make the payment good within stipulated time. Though notice was received by the accused as is evident from the acknowledgement Ext.CW1/G, but since he 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 25.6.2016, 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 appeal before the learned first appellate Court, but the same was dismissed vide judgment dated 4.1.2019. 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 learned courts below. 5. Vide order dated 12.2.2019, this Court suspended the substantive sentence imposed by the learned courts below, subject to 2026:HHC:21315 4 petitioner’s furnishing personal bonds in the sum of Rs.50,000/- with one surety in the like amount to the satisfaction of the learned trial Court as well as depositing sum of Rs. 50,000/- in the Registry of this Court. Though afore order was complied with, but thereafter matter was repeatedly, adjourned on the request of learned counsel representing the petitioner. 6. During pendency of the present criminal revision petition, an application bearing CrMP No. 30 of 2026 came to be filed by the applicant/petitioner under Section 45 of the Indian Evidence Act read with Section 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023, for sending the cheque bearing registration No. 663036 of Punjab National Bank Hamirpur to handwriting expert for matching the handwriting written in words with respect to name Anil Sharma and the amount in words, however, vide order dated 25.3.2025, in an application bearing CrMP No. 2651 of 2021, it was ordered to be heard along with main petition at the time of final arguments. 7. Having heard learned counsel for the parties and perused the material available on record vis-à-vis reasoning assigned by the learned Sessions Judge, Hamirpur, in impugned judgment, thereby upholding the judgment of conviction and order of sentence recorded by the learned trial Court, this Court is not persuaded to agree with Mr. Sanjeev Bhushan, 2026:HHC:21315 5 learned Senior Advocate that learned courts below have failed to appreciate the evidence in its right perspective, rather this Court finds that both the learned courts below have dealt with each and every aspect of the matter very meticulously and there is no scope of interference. 8. Precisely, the grouse of the petitioner as has been highlighted in the petition and further canvassed by Mr. Sanjeev Bhushan, learned Senior Advocate duly assisted by Mr. Sparsh Bhushan, Advocate, that both the courts below failed to take note of the fact that there is material alteration in the cheque. To substantiate his aforesaid submission, Mr. Bhushan, invited attention of this Court to the report of SFSL, Junga Ext.DA, wherein it came to be opined that figure “7” was added subsequently. He submitted that tint of ink of figure “7” is different from tint of ink of rest of the figures i.e. 15,000/-. He further submitted that all the words have been written in one single operation and no words or letters were added subsequently. He submitted that though cheque in question was issued for a sum of Rs. 15,000/-, but complainant tampered with the same by adding “7” in front of 15,000/-. He submitted that since FSL report clearly establishes tampering, there was no occasion, if any, for the learned courts below to hold the accused guilty of having committed offence punishable under Section 138 of the Act. Mr. Bhushan, further argued that both the learned courts below while holding the accused guilty of his 2026:HHC:21315 6 having committed offence punishable under Section 138 of the Act, conveniently ignored the material fact with regard to premature filing of the complaint under Section 138 of the Act. He submitted that complaint, if any, in the case at hand, ought to have been filed by the complainant after expiry of 45 days from the date of issuance of notice, but complainant herein proceeded to file complaint on 4.6.2011 i.e. much prior to expiry of 45 days from the date of issuance of notice. Mr. Bhushan, submitted that since in the case at hand, no cogent and convincing evidence ever came to be adduced on record qua the service of the legal notice upon the accused, petitioner shall be deemed to have been served after expiry of 30 days from the date of issuance of notice and thereafter, 15 days’ more time was required to be given to the accused for depositing money in terms of notice, if any, however in the case at hand, legal notice was issued on 29.4.2011, but complaint was filed on 4.6.2011 i.e. 8 days prior to expiry of 45 days. He submitted that in the afore background, complaint filed by the complainant ought to have been dismissed being filed prematurely. In support of his claim, he placed reliance upon judgment passed by Hon’ble Apex Court in Gajanand Burange v. Laxmi Chand Goyal, 2022 SCC OnLine SC 1711. Lastly, Mr. Bhushan, while referring to the averments contained in CrMP No. 30 of 2026 that in view of the specific report given by the FSL with regard to tampering with figures, cheque in question is 2026:HHC:21315 7 required to be sent to handwriting expert for matching it with the handwriting written in the cheque firstly in the column of name (Anil Sharma), then in the column of rupees Seven Lakh Fifteen Thousand only (7,15,000/- only) in order to ascertain that in whose writing either the applicant/petitioner or respondent these have been written and apart from the same the date filled in the cheque be also sent in order to know that whether there is some tempering or it is written in one go, in the interest of law and justice. 9. To the contrary, Mr. Vikrant Chandel, learned counsel appearing for the complainant while supporting the impugned judgment passed by the learned Sessions Judge vehemently argued that there is no illegality in the same and as such, no interference is called for. He submitted that once factum with regard to issuance of cheque as well as signature thereupon never came to be disputed coupled with the fact that amount in words was clearly mentioned as 7,15,000/-, no illegality can be said to have been committed by the learned courts below while holding the petitioner-accused guilty of having committed offence punishable under Section 138 of the Act. Mr. Chandel, further argued that in the case at hand, complainant successfully proved on record that legal notice Ext.CW1/E dated 29.4.2011 was duly served upon the accused. While inviting attention of this Court to the acknowledgement Ext.CW1/G, Mr. 2026:HHC:21315 8 Chandel, submitted that accused received legal notice on 11.5.2011 and immediately, thereafter complainant lodged complaint on 4.6.2011 i.e. within 30 days from the receipt of notice. He submitted that in the case at hand, there is no question of presumption of service of notice, rather cogent and convincing evidence came to be adduced on record with regard to receipt of legal notice by the accused. He further submitted that in view of the report given by the FSL, which has been accepted by both the learned courts below, there is no occasion, if any, to accept prayer made by the petitioner-accused for sending the cheque in question to the handwriting expert for matching the handwriting written in words. He submitted that by now it is well settled that whenever there is variation or difference in the amount written in words or figures what is written in words shall be taken in consideration. He submitted that since amount in words ‘715000’ only has been written and there is no report of the FSL that there is tampering in the amount written in words, no illegality can be said to have been committed by the learned courts below while passing impugned judgments. 10. In the case at hand, this Court finds that accused in his statement recorded under Section 313 CrPC, nowhere disputed factum with regard to his having issued cheque as well as signatures thereupon, rather he stated that cheque in question was issued by him for a sum of Rs. 15,000/-. He further submitted that amount was returned to the 2026:HHC:21315 9 complainant, who though had assured to destroy the cheque, but instead of destroying the same, he misused the same. Though opportunity was afforded to the accused to probablise his aforesaid defence, but he instead of examining himself, tendered the report of SFSL, Junga, in defence Ext.DA. 11. To the contrary, complainant successfully proved on record that cheque in question was issued by the accused towards discharge of lawful liability. Complainant besides examining himself as CW2 also examined Sh. O.P. Dogra as CW1. Complainant tendered in evidence by way of affidavit Ext.CW1/A, reiterating therein contents of the complaint. He also tendered in evidence cheque Ext.CW1/B, memorandum Ext.CW1/C & Ext.CW1/D, legal notice Ext.CW1/E, postal receipt Ext.CW1/F, acknowledgement Ext.CW1/G and Account Ledger Ext.CW1/H. Cross-examination conducted upon afore witness nowhere suggests that accused was able to extract something contrary to what this witness stated in the examination-in-chief. While admitting that accused is his class fellow, this witness stated that when accused gave the cheque, he was dealing in the business of transportation. He feigned ignorance with regard to working of the accused in the year 2002 with Vishal Puri and doing business of lottery. He also feigned ignorance qua the factum of running Rehdi along with his brother-in-law at Bhota Chowk, Hamirpur 2026:HHC:21315 10 w.e.f. 2002 to 2011. While stating that he does not know that accused has never done business of transportation, he deposed that accused had taken amount from him for the business of transportation. While stating that he had not sought any guarantee when initially amount was paid, he stated that he does not know in which bank loan of the accused was pending for sanction. While stating that initially amount was given by him at his house, he further stated that second installment was given at Nadaun in July 2010. While stating that he had presented the cheque twice, he denied that the amount of fifteen thousand was written by the accused in words and figure on cheque Ext. CW-1/B and signatures were appended. He denied that date, name and seven lakhs and seven has been written by him. He denied that date of the cheque was changed from 08.10.2010 to 28.10.2010. While admitting that notice was not given at the home address of the accused, he denied that he used to invest Rs. 5.00 lakh in lottery business. He also denied that he suffered loss in the lottery business and cheque amount was tampered. Pattern of cross-examination conducted upon CW2 i.e. complainant if perused in entirety, clearly establishes factum with regard to issuance of cheque as well as signature thereupon. Though accused attempted to carve out a case that liability was only for Rs. 15,000/- and as such, cheque was issued for sum of Rs. 15,000/-, but accused tampered with the same. As per accused, amount of Rs.15,000/- 2026:HHC:21315 11 was made Rs.7,15,000/- and name as well as amount in words was written by the complainant himself, however such defence never came to be probablised. 12. True it is that on the application of the accused, cheque in question was sent to State Forensics Science Laboratory, Junga, for seeking opinion of the expert as to whether there is interpolation/tampering in the cheque. Report of Assistant Director (Document and Photo Division) SFSL Junga, was received and placed on record as Ext.DA. Though objection to report of SFSL filed by the accused subsequently on 18.5.2015 were not pressed, but thereafter report was tendered in evidence as Ext.DA. Relevant portion of the report reads as under: “The original document of this case has been carefully and thoroughly examined with scientific aids in the light of principles of identification and detection of forgery. 2. In the red enclosed portion stamped and marked as Q-1, the fiture’7’ has been added subsequently. 3. In the red enclosed portion stamped and marked as Q-1, the tint of ink of figure ‘7’ is different than the tint of ink of rest of the figures i.e. ’15,000/-’ 4. In the red enclosed portion stamped and written in one single operation and no words or letters have been added subsequently.” 13. Careful perusal of afore report suggests that figure ‘7’ was added subsequently, however as per report, words in cheque marked as Q- 1, all the words have been written in one single operation and no words or letters have been added subsequently. Trial court having taken note of 2026:HHC:21315 12 suggestion put to CW2 that words “15000” have been written by him coupled with the report of FSL, as taken note herein above, arrived at a conclusion that “7,00,000” has been written in one flow and no words have been added subsequently, which fact clearly shows that person who has written the words ‘15000’ only has also written words” 7,00,000/-”. Learned trial Court further concluded that if the words “15000 only”, have been written by the accused then, there cannot be any doubt that words 7,00,000/- has also been written by him. 14. Though it came to be vehemently argued by Mr. Sanjeev Bhushan, learned Senior Counsel appearing for the accused, that there is material alteration in cheque. Cheque Ext.CW1/B suggests that it was issued for 7,15,000/- only. Though figure ‘7’ has been added to figure 15000 and in different tint of ink as per report of FSL, but words 7,15,000 have been written in one go without any alteration and modification. Though material alteration has not been defined in the Negotiable Instruments Act, but effect of the same has been provided in Section 87. 15. Hon’ble Apex Court in Loonkaran Sethia v. Ivan E. John AIR 1977 SC 336, which has been otherwise taken note by the learned Sessions Judge held that material alteration is the one which varies the rights, liabilities or legal position of the parties. Though it came to be submitted at the behest of the accused that on account of tampering, rights 2026:HHC:21315 13 or liabilities were altered in the present case, but once there is no specific opinion rendered in the SFSL report, whether amount in words was tampered with or not, coupled with the fact that by now it is well settled that in the event of variation/difference, if any, in the amount mentioned in figures as well as words, amount mentioned in words shall be given precedence. 16. 16. Since SFSL, Junga, has already specific opinion as discussed herein above, there is otherwise no requirement, at this stage, to again send the Cheque to the handwriting expert for comparison as is being prayed in the afore application. In the case at hand, CW2 Anil Kumar, stated that he had advanced sum of Rs. 3,35,000/- and 3,65,000/- in the months of February and July 2010, respectively and thereafter, accused with a view to discharge his lawful liability issued cheque in question amounting to Rs. 7,15,000/-. He specifically denied factum with regard to his having taken security cheque at the time of advancement of loan for the first time. Cheque was issued for a sum of Rs. 7,15,000/- at the time of advancement of Rs. 3,65,000/- in February 2010. Since at the time of issuance of cheque, there was subsisting liability of Rs. 7,15,000/- for which cheque was issued, this Court is not persuaded to agree with learned Senior counsel for the petitioner/accused that accused is not liable as the cheque was post dated cheque and same was issued as security. Since at 2026:HHC:21315 14 the time of issuance of cheque, sum of Rs. 7,15,000/- was liable to be paid, plea of security cheque otherwise attempted to be raised, deserves outright rejection. 17. By now it is well settled that dishonour of cheque issued as security can also attract offence under Section 138 of the Negotiable 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. 18. Needless to say, expression “Security Cheque” is not a statutorily defined expression in the Negotiable Instruments Act, rather 2026:HHC:21315 15 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 cheque in question is issued, same would attract provisions of Section 138 of the Act in case of its dishonour. 19. It also came to be argued at the behest of the accused that no evidence worth credence ever came to be led on record that loan amount was ever reflected in the income tax return, which is in violation of Section 269SS of the Income Tax Act, however, Hon’ble Apex Court in M/s Laxmi Dyechem V. State of Gujarat, 2013 (1) RCR (Criminal) has held that there is presumption under the Act in favour of the holder of the cheque that same was issued in discharge of the lawful liability. The Hon’ble Apex Court in afore judgment, 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 2026:HHC:21315 16 139 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 observed that it must be remembered that the offence made punishable by Section 138 can 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 2026:HHC:21315 17 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 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.” 20. Moreover, perusal of Section 269SS and 271 D of Income Tax Act, nowhere provides that transaction would be null and void, rather payer of money in cash in violation of Section 269SS of Income Tax Act can 2026:HHC:21315 18 always recover the money. Mere fact that amount was not shown in the income tax return may not be sufficient to doubt the transaction. 21. Though plea with regard to complaint being premature never came to be raised by the accused before the learned courts below, but even otherwise, same is unsustainable in the eyes of law for the reasons detailed herein below. In the instant case, record reveals that complainant after having received return memo dated 25.4.2011, issued legal notice to the accused dated 29.4.2011, thereby calling upon him to make the payment good within 15 days. Aforesaid notice was duly served upon the accused on 11.5.2011 as is evident from the acknowledgement receipt Ext.CW1/G. It is only after receipt of acknowledgement, complainant instituted complaint under Section 138 of the Act on 4.6.2011 i.e. within 30 days from the date of receipt of acknowledgement. It is not the case where service of notice was to be presumed, rather factum with regard to service of legal notice stood established on record with the placing of acknowledgement receipt. Had complainant not adduced on record any document to prove service of legal notice upon the accused, he could have filed complaint under Section 138 after 45 days of date of issuance of notice. In that eventuality, accused herein would have been presumed to be served on 29.5.2011, whereafter further 15 days’ time was required to be given to the accused to make payment if any, in terms of legal notice. It is 2026:HHC:21315 19 only after expiry of 45 days, complaint under Section 138 of the Act could have been filed, however, in the instant case, accused was duly served on 11.5.2011, as is evident from acknowledgement receipt. If it is so, there was otherwise no requirement, if any, for the complainant to further wait for expiry of 45 days, rather in that situation, he could have filed complaint within a period of 30 days from the receipt of legal notice. Since in the instant case, legal notice was served on 11.5.2011, coupled with the fact that complainant filed complaint on 4.6.2011, plea made by the accused that complaint was filed prematurely, is not sustainable and deserves to be rejected outrightly. 22. Consequently, in view of the discussion made herein above as well as law taken into consideration, this Court sees no reason to interfere with the well reasoned judgments rendered by the learned courts below, which otherwise, appear to be based upon proper appreciation of evidence available on record and as such, same are upheld. Accused is directed to surrender to the learned trial Court within fifteen days from today to serve out the sentence. 23. Accordingly, the present criminal revision petition is dismissed being devoid of any merit. June 3, 2026 (Sandeep Sharma), (manjit) Judge