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2026 DAILYLAW 16742 (HP)

Diwan Chand v. Mast Ram

2026-02-23

Rakesh Kainthla

body2026
JUDGMENT : Rakesh Kainthla, J. The present appeal is directed against the judgment dated 28.02.2014, passed by learned Special Judicial Magistrate Mandi, H.P. (learned Trial Court) vide which the complaint filed by the appellant (complainant before learned Trial Court) was dismissed and the respondents (accused before the learned Trial Court) were acquitted of the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (NI Act). (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 appeal are that the complainant filed a complaint against the accused before the learned Trial Court for the commission of an offence punishable under Section 138 of the NI Act. It was alleged that the accused had taken a contract for the preparation of plots for the Housing Board, Bajaura. They hired an excavator owned by the complainant at the rate of Rs. 750/- per hour with effect from 12.05.2007 till 03.11.2007. They operated the excavator for 1225 hours during the aforesaid period. An amount of Rs. 9,18,750/- was due to the complainant as the rent. The accused paid Rs. 3,19,554/- to the complainant and issued a cheque of Rs. 5,00,000/- in favour of the complainant on 25.11.2007 to discharge their legal liability. The complainant presented the cheque to his bank, but it was dishonoured with an endorsement ‘insufficient funds’. The complainant served a notice upon the accused, which was duly served upon them. However, they failed to repay the amount to the complainant. Hence, a complaint was filed against the accused for taking action against them as per the law. 3. The learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, a notice of accusation was put to them for the commission of an offence punishable under Section 138 of the NI Act, to which they pleaded not guilty and claimed to be tried. 4. The complainant examined himself (CW1) to prove his complaint. 5. The accused, in their statements recorded under Section 313 of Cr. P.C. denied the complainant’s case in its entirety. They specifically denied that they had issued any cheque in the complainant’s favour to discharge their liability. They examined Visheshwar Sharma (DW1), Assistant Director of State Forensic Science Laboratory (SFSL), to prove their defence. 6. 5. The accused, in their statements recorded under Section 313 of Cr. P.C. denied the complainant’s case in its entirety. They specifically denied that they had issued any cheque in the complainant’s favour to discharge their liability. They examined Visheshwar Sharma (DW1), Assistant Director of State Forensic Science Laboratory (SFSL), to prove their defence. 6. Learned Trial Court held that the statement of Visheshwar Sharma (DW1) proved that the signatures of Dina Nath taken before the Court, his admitted signatures and the signatures on the cheque were not the same. This established the defence of the accused that they had not issued the cheque in favour of the complainant. Hence, the learned Trial Court dismissed the complaint and 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 learned Trial Court erred in dismissing the complaint. The accused had taken the complainant’s excavator on rent. The report issued by the Director of SFSL was just an opinion and could not have been made a basis for dismissing the complaint. The complainant presented the cheque twice on the assurance of the accused, which corroborates his version that the cheque was signed by the accused. This aspect was ignored by the learned Trial Court. The account of the accused is joint, and they are liable to pay the amount to the complainant. Therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. 8. I have heard Mr G.R. Palsra, learned counsel for the petitioner, Mr R.K. Sharma, learned Senior Counsel assisted by Ms Anita, learned counsel for respondent No.1, Mr Kapil Sharma, learned counsel for respondent No.2/accused and Mr Lokender Kutlehria, learned Additional Advocate General for respondent No.3/State. 9. Mr G.R. Palsra, learned counsel for the appellant/complainant, submitted that the learned Trial Court erred in dismissing the complaint on the ground that the signatures of the accused Dina Nath did not tally with the signatures on the cheque. The cheque was dishonoured because of insufficiency of funds and not because of a difference in signatures. The ingredients of commission of an offence punishable under Section 138 of the NI Act were duly satisfied, and the learned Trial Court erred in dismissing the complaint. The cheque was dishonoured because of insufficiency of funds and not because of a difference in signatures. The ingredients of commission of an offence punishable under Section 138 of the NI Act were duly satisfied, and the learned Trial Court erred in dismissing the complaint. Therefore, he prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set-aside. 10. Mr R.K. Sharma, learned Senior Advocate, for the respondent No.1/accused submitted that the learned Trial Court had rightly relied upon the statement of Dr Visheshwar Sharma (DW1) to hold that the defence of the accused that they had not issued any cheque in favour of the complainant was established. Learned Trial Court had taken a reasonable view, and this Court should not interfere with the reasonable view of the learned Trial Court while deciding an appeal against acquittal, even if another view is possible. Therefore, he prayed that the present appeal be dismissed. 11. Mr Kapil Sharma, learned counsel for respondent No.2/accused adopted the submissions of Mr R.K. Sharma, learned Senior Advocate and prayed that the present appeal be dismissed. 12. Mr Lokender Kutlehria, learned Additional Advocate General, for the respondent/State, submitted that the dispute is between the private parties and the State has nothing to say in the present matter. 13. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 14. The present appeal has been filed against a judgment of acquittal. It was laid down by the Hon’ble Supreme Court in Surendra Singh v. State of Uttarakhand, (2025) 5 SCC 433 : 2025 SCC OnLine SC 176 that the Court can interfere with a judgment of acquittal if it is patently perverse, is based on misreading of evidence, omission to consider the material evidence and no reasonable person could have recorded the acquittal based on the evidence led before the learned Trial Court. It was observed at page 438: “24. It was observed at page 438: “24. It could thus be seen that it is a settled legal position that the interference with the finding of acquittal recorded by the learned trial Judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.” 15. This position was reiterated in State of M.P. v. Ramveer Singh, 2025 SCC OnLine SC 1743, wherein it was observed: “21. We may note that the present appeal is one against acquittal. Law is well-settled by a plethora of judgments of this Court that, in an appeal against acquittal, unless the finding of acquittal is perverse on the face of the record and the only possible view based on the evidence is consistent with the guilt of the accused, only in such an event, should the appellate Court interfere with a judgment of acquittal. Where two views are possible, i.e., one consistent with the acquittal and the other holding the accused guilty, the appellate Court should refuse to interfere with the judgment of acquittal. Reference in this regard may be made to the judgments of this Court in the cases of Babu Sahebagouda Rudragoudarv. State of Karnataka (2024) 8 SCC 149 ; H.D. Sundara v. State of Karnataka (2023) 9 SCC 581 , and Rajesh Prasad v. State of Bihar (2022) 3 SCC 471 .” 16. While dealing with the appeal against the acquittal in a complaint filed for the commission of an offence punishable under Section 138 of the NI Act the Hon’ble Supreme Court held in Rohitbhai Jivanlal Patel v. State of Gujarat (2019) 18 SCC 106 that the normal rules with same rigour cannot be applied to the cases under Negotiable Instruments Act because there is a presumption that the holder had received the cheque for discharge of legal liability. The Appellate Court is entitled to look into the evidence to determine whether the accused has discharged the burden or not. It was observed:- 12. The Appellate Court is entitled to look into the evidence to determine whether the accused has discharged the burden or not. It was observed:- 12. According to the learned counsel for the appellant- accused, the impugned judgment is contrary to the principles laid down by this Court in Arulvelum v. State, (2009) 10 SCC 206 : (2010) 1 SCC (Cri) 288 because the High Court has set aside the judgment of the trial court without pointing out any perversity therein. The said case of Arulvelum v. State, (2009) 10 SCC 206 : (2010) 1 SCC (Cri) 288] related to the offences under Sections 304-B and 498-A IPC. Therein, on the scope of the powers of the appellate court in an appeal against acquittal, this Court observed as follows : (SCC p. 221, para 36) “36. Careful scrutiny of all these judgments leads to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal, particularly in a case where two views are possible. The trial court judgment cannot be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshalling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law.” The principles aforesaid are not of much debate. In other words, ordinarily, the appellate court will not be upsetting the judgment of acquittal, if the view taken by the trial court is one of the possible views of the matter and unless the appellate court arrives at a clear finding that the judgment of the trial court is perverse i.e. not supported by evidence on record or contrary to what is regarded as normal or reasonable; or is wholly unsustainable in law. Such general restrictions are essential to remind the appellate court that an accused is presumed to be innocent unless proven guilty beyond a reasonable doubt, and a judgment of acquittal further strengthens such presumption in favour of the accused. However, such restrictions need to be visualised in the context of the particular matter before the appellate court and the nature of the inquiry therein. However, such restrictions need to be visualised in the context of the particular matter before the appellate court and the nature of the inquiry therein. The same rule with the same rigour cannot be applied in a matter relating to the offence under Section 138 of the NI Act, particularly where a presumption is drawn that the holder has received the cheque for the discharge, wholly or in part, of any debt or liability. Of course, the accused is entitled to bring on record the relevant material to rebut such presumption and to show that preponderance of probabilities are in favour of his defence but while examining if the accused has brought about a probable defence so as to rebut the presumption, the appellate court is certainly entitled to examine the evidence on record in order to find if preponderance indeed leans in favour of the accused. 13. For determination of the point as to whether the High Court was justified in reversing the judgment and orders of the trial court and convicting the appellant for the offence under Section 138 of the NI Act, the basic questions to be addressed are twofold: as to whether the complainant Respondent 2 had established the ingredients of Sections 118 and 139 of the NI Act, so as to justify drawing of the presumption envisaged therein; and if so, as to whether the appellant-accused had been able to displace such presumption and to establish a probable defence whereby, the onus would again shift to the complainant? 17. The present appeal has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 18. The cheque (Ex.CW1/A) is stated to be signed by accused Dina Nath Sharma. The accused filed an application for comparison of his signatures, which was allowed, and the specimen signatures, admitted signatures and the disputed signatures were sent to SFSL. Dr. Visheshwar Sharma (DW1) examined these signatures and issued a report (Ex.DW1/A) mentioning that a person who wrote the specimen and admitted signatures did not write the disputed signatures on the cheque. Visheshwar Sharma (DW1) had stated that he examined the documents sent to him and issued the report (Ext.DW1/A). He denied in his cross-examination that the science of handwriting was not perfect. Visheshwar Sharma (DW1) had stated that he examined the documents sent to him and issued the report (Ext.DW1/A). He denied in his cross-examination that the science of handwriting was not perfect. He admitted that there are variations in the signatures and handwriting of a person, but clarified that the original characteristics of the handwriting do not change. He denied that he had examined the documents and had issued a wrong report. 19. There is nothing in his cross-examination to show that he was making a false statement. He is the Assistant Director of SFSL and has no interest in favouring the accused or in deposing against the complainant. His testimony falsifies the complainant’s version that the accused had signed the cheque. 20. The complainant stated in his cross-examination that he was not aware of the details of the work executed by the accused. He could not specify the work done by the excavator. No agreement was prepared between the parties. He had maintained the record but had not produced it before the Court. He had taken a room on rent for the operator of the excavator. He admitted that the accused Dina Nath had made a complaint regarding the fact that he had not delivered any cheque nor had he put his signature. He denied that the accounts were settled between the parties. 21. The complainant’s testimony is not sufficient to establish the plea taken by him that the accused had rented the machine and they were liable to pay Rs. 9,18,750/-. He admitted that he had maintained the account but failed to produce any such record before the Court. He did not examine his accountant, who was maintaining such a record. He also did not examine the operator of the excavator to establish that the work was executed for 1225 hours, as claimed by him in the complaint. He has not produced any logbook of the excavator showing the details of the hours or the photographs of the readings of the hours in the machine. Thus, the complainant’s testimony does not establish the plea taken by him that the accused were liable to pay Rs. 9,18,750/-, out of which they had paid Rs. 3,19,554/- and were liable to pay Rs. 5,99,196/- to him. 22. It was submitted that the cheque carries with it a presumption that it was issued for consideration to discharge the liability. Thus, the complainant’s testimony does not establish the plea taken by him that the accused were liable to pay Rs. 9,18,750/-, out of which they had paid Rs. 3,19,554/- and were liable to pay Rs. 5,99,196/- to him. 22. It was submitted that the cheque carries with it a presumption that it was issued for consideration to discharge the liability. This submission will not help the complainant. The presumption would only be triggered when the cheque is shown to have been signed by a person. In the present case, the testimony of Visheshwar Sharma (DW1) makes it doubtful that the cheque was signed by Dina Nath. Therefore, the necessary condition for triggering the presumption under Section 118(a) and 139 of the NI Act is not satisfied. 23. No other point was urged. 24. Therefore, the learned Trial Court had taken a reasonable view while acquitting the accused, and this Court will not interfere with the reasonable view of the learned Trial Court, even if another view is possible. 25. In view of the above, the present appeal fails, and the same is dismissed, and so are the pending miscellaneous applications, if any. 26. In view of the provisions of Section 437-A of the Code of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha Sanhita, 2023) the accused are directed to furnish bail bonds in the sum of Rs. 25,000/- each with one surety each in the like amount to the satisfaction of the learned Trial Court within four weeks, which shall be effective for six months with stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of the leave, the accused on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 27. A copy of the judgment, along with records of the learned Courts below, be sent back forthwith.