2026:HHC:22887 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No.142 of 2026 Date of Decision: 18.06.2026 __________________________________________________________________________ Mohammad Irshad ……...Petitioner Versus Punjab National Bank …....Respondent Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? _____________________________________________________________________________ For the Petitioner: Mr. Munish Datwalia, Advocate. For the Respondent: Mr. Arvind Sharma, Advocate. __________________________________________________________________________ Sandeep Sharma, J. (Oral) Instant criminal revision petition filed under Section 438, read with Section 442 of Bharatiya Nagrik Suraksha Sanhita, 2023, lays challenge to judgment dated 18.08.2025, passed by the learned Additional Sessions Judge, Sundernagar, District Mandi, Himachal Pradesh, in Registration No.69 of 2024, Filing No.1072 of 2024, titled Mohammad Irshad Vs. P.N.B., affirming judgment of conviction and order of sentence dated 29.10.2024/30.10.2024, passed by the learned Additional Chief Judicial Magistrate, Court No.1, Sundernagar, District Mandi, Himachal Pradesh, in case Registration No.66 of 2019, whereby the learned trial Court while holding the petitioner-accused (hereinafter, “accused”) guilty of having committed offence punishable under Section 138 of the Negotiable Instruments Act (in short the “Act"), convicted and sentenced 2026:HHC:22887 -2- him to undergo simple imprisonment for a period of 14 months and pay compensation to the tune of ₹4,20,000/- to the respondent-complainant. 2. Precisely, the facts of the case, as emerge from the record are that respondent-complainant (hereinafter, ‘complainant’) instituted a complaint under Section 138 of the Act, in the competent Court of law, alleging therein that on the request of accused, complainant-Bank advanced car loan of ₹6,55,000/- on 06.09.2014 @ 9.05%. Accused with a view to discharge his liability, issued Cheque in favour of complainant- Bank, however, fact remains that aforesaid Cheque on its presentation to the Bank concerned was dishonoured with the remarks “Funds Insufficient and Account is Dormant” on 24.12.2018. Immediately, after receipt of aforesaid return memo, complainant-Bank served accused with a legal notice calling upon him to make the payment good well within stipulated time. However, since accused failed to make the payment good within the time stipulated in the legal notice, complainant was compelled to initiate proceedings under Section 138 of the Act in the Court of learned Additional Chief Judicial Magistrate, Court No.1, Sundernagar, District Mandi, Himachal Pradesh. 3. Learned trial Court on the basis of material adduced on record by the respective parties, vide judgment/order dated 29.10.2024/30.10.2024, held the accused guilty of having committed 2026:HHC:22887 -3- offence under Section 138 of the Act and accordingly, convicted and sentenced him, as per the description given hereinabove. 4. At the first instance, accused preferred an appeal in the Court of learned Additional Sessions Judge, Sundernagar, District Mandi, Himachal Pradesh, however, same was dismissed vide judgment dated 18.08.2025. In the aforesaid background, accused has approached this Court by way of instant proceedings, seeking therein his acquittal after setting aside the judgments of conviction recorded by the Courts below. 5. Vide order dated 26.02.2026, this Court stayed the substantive sentence imposed by the learned Court below, subject to petitioner/accused depositing 50% of the compensation amount and furnishing personal bond in the sum of Rs.25,000/-. Though aforesaid order stands complied with, but thereafter on 07.05.2026, learned counsel representing the petitioner, on instructions, made statement that petitioner is ready and willing to pay the balance amount within reasonable time. Accordingly, matter was adjourned for today’s date, however, fact remains that neither petitioner has come present, nor he has deposited the remaining amount. In the aforesaid background, this Court has no option but to decide the petition on its own merits. 6. Having heard learned counsel for the parties and perused material adduced on record, vis-a-vis reasoning assigned in the impugned judgments, this Court sees no reason to agree with Mr. Munish Datwalia, 2026:HHC:22887 -4- learned counsel representing the petitioner, that Courts below have fallen in grave error while appreciating the evidence, rather this Court finds that both the Courts below have meticulously dealt with each and every aspect of the matter and there is no scope left for interference. 7. Factum with regard to advancement of loan as well as issuance of Cheque and signatures thereupon never came to be disputed at the behest of accused, rather, accused in his statement recorded under Section 313 Cr.P.C. categorically admitted factum with regard to availing loan from the complainant-Bank, however, he denied that Cheque was issued in favour of complainant-Bank. To probabilise the aforesaid defence, he also examined Rajneesh Kumar as DW-1. 8. Complainant-Bank with a view to prove its case, examined Rajneesh Kumar as CW-1, who besides tendering evidence by way of affidavit Ex.CW1/A, reiterating therein averments contained in the complaint, also placed on record documents; GPA Ex.CW1/B, Cheque Ex.CW1/C, memo Ex.CW1/D, legal notice Ex.CW1/E, postal receipt Ex.CW1/F, acknowledgment Ex.CW1/G and statement of account Ex.CW1/H. Cross-examination conducted upon afore witness nowhere suggests that accused was able to extract anything contrary, to what this witness stated in his examination-in-chief. Afore witness in his cross- examination, while testifying that loan in question was not sanctioned by him, admitted that loan documents and documents of hypothecated vehicle 2026:HHC:22887 -5- have not been appended with the complaint. While stating that complaint was filed by Devender Kumar, he further denied that accused had not applied for the loan in question. He also denied that he has not been authorised to depose on behalf of the complainant. 9. Though accused attempted to set-up a case that he had not availed the loan in question, but while replying to question No.2 of his statement recorded under Section 313 Cr.P.C., he categorically admitted that loan in question was availed by him. Moreover, factum of raising of loan from the complainant-Bank stands duly substantiated with the statement of DW-1 Rajneesh Kumar, who stated that accused deposited sum of 1,00,000/- with the complainant-Bank. Cross-examination of DW- ₹ 1 Rajneesh Kumar clearly reveals that he categorically admitted that sum of 4,94,859/- remains due from the accused towards the complainant-Bank. ₹ If nothing was to be paid by the accused, there was no occasion, if any, for him to deposit sum of 1,00,000/-, as has been stated by DW-1 Rajneesh ₹ Kumar. 10. In the case at hand, accused also attempted to prove that he was not served with legal notice, however, complainant-Bank with a view to prove service of legal notice upon accused, successfully proved on record postal receipt Ex.CW1/F. Hon’ble Apex Court in case titled as C.C. Allavi Haji Vs. Pala Pelly Mohd., 2007 (6) SCC 555, has categorically held that person who claims that he had not received the notice has to pay the 2026:HHC:22887 -6- amount within the period of 15 days from the date of receipt of summons from the Court and in case of failure to do so, he cannot take advantage of the fact that notice was not received by him and as such, no illegality can be said to have been committed by learned Courts below while recording that “even if the accused did not receive the legal notice issued by the complainant Bank, but since he has failed to make payment of the Cheque amount within 15 days from the date of receipt of summons from the Court, he cannot take advantage of the fact that notice was not served upon him”. 11. In the case at hand, complainant-Bank had successfully proved on record that on the request of accused, loan to the tune of 6,55,000/- was advanced and accused with a view to discharge his lawful ₹ liability issued Cheque Ex.CW1/C, but the same was dishonoured on account of “Funds Insufficient and Account is Dormant”. Complainant also proved on record that before instituting proceedings under Section 138 of the Act, complainant-Bank served accused with legal notice, but he failed to comply with the mandate contained in the same and as such, complainant had no option but to institute proceedings under Section 138 of the Act in the competent Court of law. Since factum with regard to issuance of Cheque as well as signatures thereupon could not be rebutted by the accused, no illegality, otherwise, can be said to have been committed by the Courts below while invoking Sections 118 and 139 of the Act, which 2026:HHC:22887 -7- speak about presumption in favour of the holder of the Cheque that Cheque was issued towards discharge of a lawful liability. No doubt, aforesaid presumption is rebuttable, but to rebut such presumption, accused either can refer to the documents and evidence led on record by the complainant or presumption can be rebutted by leading positive evidence, if any. However, in the case at hand, accused was unable to point out from the documents as well as evidence adduced on record by the complainant that Cheque issued by him was not issued towards discharge of lawful liability. 12. 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 is 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 2026:HHC:22887 -8- 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 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 amount, that the said default 2026:HHC:22887 -9- 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.” 13. Having scanned the entire evidence adduced on record by the respective parties, this Court finds that all the basic ingredients of Section 138 of the Act are met in the case at hand. Since Cheque issued by accused towards discharge of his lawful liability was returned on account of funds insufficient as well as on the ground that account is dormant and he despite having received legal notice failed to make the payment good within the stipulated time, complainant had no option but to institute proceedings under Section 138 of the Act, which subsequently rightly came to be decided by both the Courts below on the basis of pleadings as well as evidence adduced on record by the respective parties. 14. 14. Moreover, this Court has a very limited jurisdiction under Section 397 of the Cr.P.C to re-appreciate the evidence, especially in view of the concurrent findings of fact and law relied upon 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 2026:HHC:22887 -10- 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 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 2026:HHC:22887 -11- 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 hereinabove 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 before the learned trial Court within a period of thirty days to serve the sentence as awarded by the learned trial Court, if not already served. Bail bonds of the petitioner, if any, are cancelled. Interim order dated 26.02.2026 stands vacated. Amount, if any, deposited by the petitioner- accused with the learned trial Court as well as Registry of this Court is ordered to be released in favour of complainant by remitting the same in its bank account, detail whereof, shall be furnished by its counsel within a period of one week. (Sandeep Sharma), Judge June 18, 2026 Rajeev Raturi