2026:HHC:25688 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No.611 of 2025 Date of Decision: 30.06.2026 __________________________________________________________________________ Hari Chand ……...Petitioner Versus Jogindra Central Co-operative Bank Ltd. …....Respondent Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? _____________________________________________________________________________ For the Petitioner: Mr. Rajinder Thakur and Ms. Kiran Verma, Advocates. For the Respondent: Mr. Arvind Sharma and Ms. Kiran Sharma, Advocates. __________________________________________________________________________ Sandeep Sharma, J. (Oral) Instant criminal revision petition filed under Section 438 of Bharatiya Nagarik Suraksha Sanhita, 2023, lays challenge to judgment dated 25.07.2025, passed by the learned Additional Sessions Judge-II, Solan, Camp at Arki, District Solan, Himachal Pradesh, in Criminal Appeal No.9-AK/10 of 2024, titled as Hari Chand Vs. JCC Bank, affirming judgment of conviction and order of sentence dated 02.02.2024/28.02.2024, passed by the learned Judicial Magistrate First Class, Arki, Solan, Himachal Pradesh, in Cr. Complaint No.83/3 of 2020, 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 him to 2026:HHC:25688 - 2 - undergo simple imprisonment for a period of nine months and pay compensation to the tune of ₹4,30,000/- 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 accused approached it for availing a DEDS loan facility of ₹4,50,000/-, which was sanctioned on 13.09.2017. Though aforesaid amount was to be returned in monthly installments with interest, as per the terms and conditions of the agreement entered inter se parties, however, fact remains that on account of default in repayment, loan account of the petitioner fell into NPA category on 15.05.2019. Accused, with a view to discharge his lawful liability, issued Cheque No.076245, dated 16.11.2019, for sum of ₹3,83,000/- of his bank account maintained in Jogindra Central Co-operative Bank, Branch at Bhararighat. However, fact remains that aforesaid Cheque on its presentation to the Bank concerned was dishonoured vide memo dated 16.11.2019 and 01.01.2020 with remarks ‘insufficient funds’. Immediately, after receipt of aforesaid return memo, complainant served accused with legal notice dated 14.01.2020, calling upon him to make the payment good well within stipulated time. However, since petitioner-accused failed to make the payment good within the time stipulated in the legal notice, respondent/complainant was compelled to 2026:HHC:25688 - 3 - initiate proceedings under Section 138 of the Act in the Court of learned Judicial Magistrate First Class, Arki, Solan, Himachal Pradesh. 3. Learned trial Court on the basis of material adduced on record by the respective parties, vide judgment/order dated 02.02.2024/28.02.2024, held the petitioner-accused guilty of having committed offence under Section 138 of the Act and accordingly, convicted and sentenced him, as per the description given hereinabove. 4. Though, at first instance, accused preferred an appeal in the Court of learned Additional Sessions Judge-II, Solan, Camp at Arki, District Solan, Himachal Pradesh, however, same was dismissed vide judgment dated 25.07.2025. In the aforesaid background, petitioner-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 29.10.2025, Co-ordinate Bench of this Court stayed the substantive sentence imposed by the learned Court below, subject to petitioner/accused depositing 30% of the Cheque amount and furnishing personal bond in the sum of ₹50,000/-. Though aforesaid order never came to be complied with, but this Court was informed that after filing of the petition, sum of ₹1,30,000/- was deposited with the respondent-Bank, which fact is not denied by the learned counsel representing the respondent-Bank. This Court also came to be apprised that sum of ₹2,16,000/- is lying 2026:HHC:25688 - 4 - deposited with the learned trial Court, meaning thereby that as of today, sum of ₹3,46,000/- has been deposited. This Court, having taken note of statement made by learned counsel representing the petitioner that remaining sum of ₹84,000/- shall be deposited on or before today’s date, adjourned the matter for today’s date, but since needful has not been done, as per undertaking given to this Court, 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 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. Though in the statement recorded under Section 313 Cr.P.C., accused denied the case of the complainant, but despite opportunity, he failed to lead any evidence. However, pattern of cross-examination conducted upon complainant clearly reveals that there is no specific denial with regard to issuance of Cheque as well as signatures thereupon. If it is so, no illegality otherwise can be said to have been committed by the learned Courts below while invoking Sections 118 and 139 of the Act, which speak about presumption in favour of the holder of the Cheque that Cheque was issued 2026:HHC:25688 - 5 - 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. 8. 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 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 2026:HHC:25688 - 6 - 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 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.” 2026:HHC:25688 - 7 - 9. Complainant with a view to prove its case, examined Manager of the complainant-Bank, who while deposing as CW-1, tendered evidence by way of affidavit Ex.CW1/A, reiterating therein contents of the complaint. Besides above, he also placed on record copy of Cheque dated 16.11.2019, Ex.CW1/B, dishonour memos Ex.CW1/C and Ex.CW1/D, legal notice Ex.CW1/E and postal receipt Ex.CW1/F. Cross-examination conducted upon afore witness nowhere suggests that accused was able to extract anything contrary, to what this witness stated in examination-in-chief. In his cross-examination, afore witness explained that loan had been disbursed in two installments of ₹2,25,000/- each. While admitting that amount being shown in the account statement, Ex.CW1/W, is different than the amount being claimed through Cheque, he explained that it keeps on changing as some amount is deposited. No suggestion worth the name ever came to be put to the witness with regard to existence of lawful liability as well as Cheque issued towards discharge of such liability. 10. To the contrary, complainant successfully proved on record that accused had availed loan to the tune of ₹4,50,000/- and the Cheques issued by accused towards discharge of lawful liability were dishonoured on account of insufficient funds in the bank account maintained by him. It also successfully proved on record that before initiating proceedings under Section 138 of the Act, complainant-Bank had served accused with legal notice, calling upon him to make the payment good within stipulated time, 2026:HHC:25688 - 8 - but accused neither replied to the notice nor made the payment. As has been observed hereinabove, though accused in his statement recorded under Section 138 of the Act denied the case of the complainant in toto, but despite sufficient opportunities, he failed to lead any evidence and as such, no illegality can be said to have been committed by both the Courts below while holding accused guilty of his having committed offence punishable under Section 138 of the Act. 11. If the evidence led on record by the respective parties is read in conjunction, this Court sees no reason to differ with the findings returned by the Courts below that complainant successfully proved on record that accused had issued Cheque towards discharge of his lawful liability. Since factum of issuance of Cheque by the accused as well as his signatures thereupon was never disputed, presumption as available under Section 118 and 139 of the Act rightly came to be invoked in the case of the petitioner that Cheque in question was issued in discharge of lawful liability. Since no evidence worth credence ever came to be led on record to rebut the presumption, no illegality can be said to have been committed by the Courts below while holding petitioner/accused guilty for the commission of offence punishable under Section 138 of the Act. 12. 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 2026:HHC:25688 - 9 - towards discharge of his lawful liability was returned on account of insufficient funds in the bank account of accused 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. 13. 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 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.” 2026:HHC:25688 - 10 - 14. 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. 15. 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. 16. 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. 17. Accordingly, the present criminal revision petition is dismissed being devoid of any merit. The petitioner is directed to surrender himself 2026:HHC:25688 - 11 - 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 29.10.2025 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. Pending applications, if any, also stand disposed of. t (Sandeep Sharma), Judge June 30, 2026 (Rajeev Raturi)