2026:HHC:27029 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Revision No.91 of 2025 Date of Decision: 7.7.2026 _____________________________________________________________________ Hem Shankar Sharma ……...Petitioner Versus Madan Lal Thakur (now deceased) Through LR Ajeet Singh …....Respondent Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? For the Petitioner: Mr. Rahul Singh Verma, Advocate. For the Respondent: Mr. Amrick Singh, Advocate. ___________________________________________________________________________ Sandeep Sharma, J. (Oral) Instant criminal revision petition, lays challenge to judgment dated 18.7.2024, passed by the learned Additional Sessions Judge (CBI Court) at Shimla, District Shimla, Himachal Pradesh, in Criminal Appeal No. 35-S-10 of 2024, affirming the judgment of conviction and order of sentence dated 19/21.3.2024, passed by the learned Chief Judicial Magistrate Shimla, District Shimla, Himachal Pradesh in complaint case No.9008144 of 2017, 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 one year and pay compensation to the tune of Rs. 9,00,000/- to the complainant. 2026:HHC:27029 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, who had friendly relations with him requested for loan to install machinery in his shop premises at Ghanahatti, where accused at the relevant time, was doing the business of printing press. Complainant advanced sum of Rs. 8.00 lakh to the accused on his request, in three installments i.e. Rs. 4.00 lakh on 5.3.2016, Rs. 2.00 lakh on 8.4.2016 and Rs. 2.00 lakh on 12.5.2016. Agreement was also executed inter-se parties, wherein accused undertook to repay the amount, but since he failed to do so within stipulated time, accused issued a cheque bearing No. 368665 dated 24.4.2017 amounting to Rs. 8.00 lakh for discharge of his lawful liability, however, same on its presentation to the bank concerned was dishonoured with note “Funds Insufficient” vide memo dated 25.4.2017. Immediately, after receipt of aforesaid memo, complainant served legal notice upon the accused, thereby calling upon him to make the payment good within stipulated time, but in vain, as such, 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 19/21.3.2024, held 2026:HHC:27029 3 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 18.7.2024. 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 27.2.2025, this Court suspended the substantive sentence imposed by the court below, subject to petitioner’s depositing 40% 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 either settle the matter with the complainant or deposit the entire amount of compensation, however fact remains that despite there being umpteenth number of opportunities, accused failed to do the needful and as such, this Court has no option but to decide the petition on merit. 2026:HHC:27029 4 6. Having carefully perused grounds taken in the appeal vis-à-vis reasoning assigned by the learned Sessions Judge, thereby upholding 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 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. At no point of time, petitioner-accused denied factum with regard to issuance of cheque as well as signature thereupon, rather he attempted to carve out a case that cheque in question was issued as security and same was misused by the complainant, however, such defence never came to be probablised by leading cogent and convincing evidence. Once 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 the accused by 2026:HHC:27029 5 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. 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 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:27029 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:27029 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.” 9. Though an opportunity was granted to the petitioner-accused to lead the evidence, but he failed to do so, as a result of which, defence otherwise proposed to be set up by the accused never came to be probablised. Since factum with regard to issuance of cheque as well as signature thereupon, never came to be disputed, rather stands admitted, no illegality can be said to have been committed by the courts below while invoking Sections 118 and 139 of the Act. 10. In the case at hand, complainant with a view to prove his case, examined himself as CW1. He categorically deposed that he had advanced sum of Rs. 8.00 lakh to the accused taking overdraft against his Fixed Deposit on 5.3.2016 to the tune of Rs. 4.00 lakh, which was handed over in cash to the accused. He deposed that remaining amount of Rs. 2.00 lakh was advanced to the accused on 8.4.2016 for purchase of stationery 2026:HHC:27029 8 articles. While stating that in total, sum of Rs. 8.00 lakh was paid to the accused, this witness deposed that agreement was prepared in the presence of Tara Chand and Vinod @ Bobby and cheque dated 24.4.2016 was issued by the accused in his favour, however same was dishonoured for want of sufficient funds in the bank account of the accused vide memo Ext.CW1/B. He deposed that before initiation of proceedings under Section 138 of the Act, he served the accused with legal notice Ext.CW1/C on his correct address through registered post, postal receipt whereof is Ext.CW1/D and registered parcel containing notice Ext.CW1/E was received back unclaimed. If the cross-examination conducted upon afore witness is perused in its entirety, it cannot be said that accused was able to extract anything contrary to what this witness stated in examination-in-chief, rather pattern of cross-examination conducted upon the accused clearly establishes factum with regard to issuance of cheque as well as signature thereupon. Though accused attempted to set up a case that he had issued cheque as security, but such defence of him never came to be probablised. 11. As has been taken note herein above, though accused was afforded opportunity of hearing, but yet he failed to avail the same. Though it came to be argued at the behest of the accused that legal demand notice Ext.CW1/C was not served, perusal whereof clearly reveals that notice was issued through registered post on the correct address as per postal receipt 2026:HHC:27029 9 Ext.CW1/D and registered parcel containing notice Ext.CW1/E was received unclaimed as per report. Since accused was served on same address on which notice was sent and he had also mentioned the same address in his personal bonds furnished in the Court, both the courts below rightly held that legal demand notice was sent on correct address of the accused, but yet same was not received by the accused. Report was made on legal demand notice on 5.5.2017 and after expiry of fifteen days period, present complaint was instituted within a period of thirty days on 11.6.2017, hence all the prerequisites enshrined under Section 138 of the Act stand duly complied with. 12. Besides setting up defence of his having issued security cheque, it also came to be argued at the behest of the complainant that security cheque was issued in lieu of purchase of land as a guarantee which was used by the complainant, however, such defence of him never came to be probablised by leading cogent and convincing evidence. In his statement recorded under Section 313 CrPC, he while admitting factum of his having previous acquaintance with the complainant also admitted that he is running his printing press at Ghanahatti. Though Complainant in his cross-examination admitted that he is having landed property at Hira Nagar/Jawug Road, but denied that he had offered to sell the land to the accused. He also denied that said proposal was made in the presence of 2026:HHC:27029 10 one Vinod Kumar and he reiterated that said Vinod Kumar was present at the time when accused had borrowed money from him. He categorically denied that accused had handed over a blank signed cheque in his favour in lieu of purchase of land with an understanding that cheque would be encashed only after deal qua purchase of the land with the complainant. Since all the afore defenses, attempted to be set up, never came to be probablised by leading cogent and convincing, no illegality can be said to have been committed by the learned courts below while arriving at a conclusion that cheque in question was issued towards discharge of lawful liability, but since same was dishonoured on account of insufficient funds and accused, despite issuance of legal notice, failed to repay the amount, he rightly came to be held guilty of his having committed offence under Section 138 of the Act. 13. 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 2026:HHC:27029 11 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. 14. 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 cheque in question is issued, same would attract provision of Section 138 of the Act in case of its dishonour. 15. Moreover, this Court has a very limited jurisdiction under Section 397 of the Cr.PC (now Section 438 of BNSS), 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. 2026:HHC:27029 12 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.” 16. 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. 17. 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 2026:HHC:27029 13 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. 18. 18. 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. 19. 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 six weeks to serve the sentence as awarded by the learned trial Court, if not already served. Learned trial Court is directed to release the amount, if any, deposited by the accused in favour of the complainant on his filing appropriate application within two weeks, providing therein saving bank account details. Interim direction, if any, stands vacated. Pending applications, if any, also stand disposed of. July 7, 2026 (Sandeep Sharma), (manjit) Judge