2026:HHC:30216 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Revision No.679 of 2025 Date of Decision: 22.7.2026 _____________________________________________________________________ Sumitra ……...Petitioner Versus Mukesh Panta …....Respondent Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? For the Petitioner: Mr. Pritam Singh Chandel, Advocate. For the Respondent: Ms. Anita Mokta, Advocate. ___________________________________________________________________________ Sandeep Sharma, J. (Oral) Instant criminal revision petition, lays challenge to judgment dated 1.7.2025, passed by the learned Additional Sessions Judge-II, Shimla, District Shimla, Himachal Pradesh, in Criminal Appeal No.151/2024, CNR No. HPSH10028192024, affirming the judgment of conviction and order of sentence dated 28/30.3.2024, passed by the learned Additional Chief Judicial Magistrate-3, Shimla, District Shimla, Himachal Pradesh in Case No.159/2016, titled as “Mukesh Panta v. Smt. Sumitra”, 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 her to undergo simple imprisonment for a period of fifteen days and pay fine of Rs.60,000 to the complainant. 2026:HHC:30216 2 2. Precisely, the facts of the case, as emerge from the record are that respondent/complainant instituted a complaint under Section 138 of the Act, before the competent court of law, alleging therein that the accused, who was known to him, approached him for financial assistance of Rs.40,000/- in the month of August 2015 under the pretext of financial crisis. Complainant lent sum of Rs.40,000/- in cash to the accused, who, in order to discharge her liability, issued cheque bearing No. 270721, dated 15.9.2015, for Rs.40,000/- in favour of the respondent towards discharge of lawful liability. However, the same was dishonored and returned to the complainant with remarks 'Account Closed' vide dishonor memo dated 25.11.2015. Immediately after receipt of aforesaid return memo, complainant served legal notice dated 24.12.2015 upon the accused, calling upon her to make the payment good within the stipulated time, but since needful was not done within the stipulated time, complainant instituted complaint under Section 138 of the Act before the learned Additional Chief Judicial Magistrate-3, Shimla, Himachal Pradesh (in short the “trial court”). 3. Learned trial Court on the basis of material adduced on record by the respective parties, vide judgment/order dated 28/30.3.2024, held the petitioner-accused guilty of having committed offence punishable under 2026:HHC:30216 3 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 1.7.2025. 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 13.11.2025, this Court suspended the substantive sentence imposed by the court below, subject to petitioner’s depositing 30% 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, within four weeks. Though afore order stands complied with, but thereafter, repeatedly, matter came to be adjourned on the request of learned counsel for the petitioner, enabling her to deposit the remaining amount, but in vain. Neither petitioner has settled the matter with the respondent/complainant nor has deposited the entire amount of compensation and as such, this Court has no option but to decide the petition on merit. 2026:HHC:30216 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. Interestingly, in the case at hand, accused in her statement under Section 313 Cr.P.C., never denied factum with regard to issuance of cheque as well as signatures thereupon, rather she attempted to set up a defence that her cheque got misplaced. Though accused with a view to probablise her aforesaid defence examined Shri Hem Dutt Shandil, Manager of Golf Link Finance, as DW-1, but was unable to probablise the afore defence and as such, no illegality, otherwise, can be said to have been committed by the court below while invoking Sections 118 and 139 of the 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 referring to the 2026:HHC:30216 5 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:30216 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:30216 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. Complainant, with a view to prove his case, examined his SPA, Shri Ramesh Chauhan, who stated that complainant serves in the Excise and Taxation Department and on account of transfer, he has issued SPA Ext.C1-CW1 in his favour. He deposed that in August 2015, accused came to borrow Rs.40,000/- from Mukesh Panta (i.e. complainant), which was handed over to him. He further deposed that the accused assured that she would repay the amount within one month and in his presence, she gave cheque Ext.C1/CW2 to the complainant. He further deposed that cheque, on presentation, was dishonored vide memo Ext.C1/CW3. He also deposed that complainant, before initiation of proceedings under Section 138 of the Act, served accused with legal notice, copy whereof is Ext. C1/CW4 and receipt is Ext.C1/CW5, but despite receipt of notice, she failed to make the payment. Cross-examination conducted upon afore witness nowhere 2026:HHC:30216 8 suggests that accused was able to extract anything contrary to what this witness stated in his examination-in-chief. He specifically denied the suggestion put to him that cheque in question has been misused. He also denied that figures and words on the cheque are in different handwriting. While admitting that in complaint, he has not mentioned that he got the payment delivered to the accused from the complainant, he denied that he does not know the accused and self-stated that he knows her for the last 15 years and she is also his sister-in-law in relation. Pattern of cross- examination clearly establishes factum with regard to issuance of cheque and signature thereupon. 10. Though accused attempted to set up a case that cheque has been misused, but she was unable to probablise the afore defence by leading cogent and convincing evidence. She was unable to explain that how and under what circumstances, cheque in question, came into the hands of the complainant, if she had not issued it to the complainant,. Accused examined Shri Hem Dutt Sharma, as DW-1, who testified that accused was never employed in Golf Link Finance. He also proved the certificate Ext.D2/DW1, however, in his cross-examination, he feigned ignorance that complainant used to take loan on less rates and used to further lend it on higher interest. There is nothing in the statement, which 2026:HHC:30216 9 can be said to be sufficient to rebut the presumption in favour of the holder of the cheque that cheque was issued toward discharge of lawful liability. 11. During proceedings of the case, an attempt came to be made by Shri P.S. Chandel, Advocate, appearing for the petitioner that there is overwriting and cutting in the cheque, but having carefully perused cheque Ext.C1/CW1, this Court is not persuaded to agree with him, rather, this Court finds that date as well as amount mentioned in the cheque, in words as well as in figures, have been clearly mentioned and there is no overwriting, hence no illegality can be said to have been committed by the courts below while invoking Sections 118 and 139 of the Act. 12. Moreover, this Court has a very limited jurisdiction under Section 397 of the Cr.PC, 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. 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 2026:HHC:30216 10 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.” 13. 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. 14. 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 2026:HHC:30216 11 reason to interfere with the well reasoned judgments passed by the courts below. 15. 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. 16. 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. Interim direction, if any, stands vacated. Learned court below is also directed to release the amount, if any, deposited before it by the accused, on filing appropriate application by the complainant within one week. Pending applications, if any, also stand disposed of. July 22, 2026 (Sandeep Sharma), (manjit) Judge