2026:HHC:30908 THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No.747 of 2024 Date of Decision: 27.07.2026 _______________________________________________________ Sunder Singh …….Petitioner Versus Shamsher Singh … Respondent _______________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 For the Petitioner : Mr. Gaurav Damseth, Advocate vice Mr. Bharat Bhushan, Advocate. For the Respondent : Mr. Ajay Kumar, Advocate. _______________________________________________________ Sandeep Sharma, Judge(oral): Instant Criminal Revision petition filed under Section 442 read with Section 438 of Bharatiya Nagarik Suraksha Sanhita, lays challenge to judgment dated 16.03.2024, passed by learned Additional Sessions Judge, Rohru, District Shimla, Himachal Pradesh, in Criminal Appeal No.144-R/10 of 2023, affirming judgment of conviction dated 11.05.2023 and order of sentence dated 29.05.2023, passed by learned Additional Chief Judicial Magistrate, Court No.1, Rohru, District Shimla, Himachal Pradesh, in Criminal case No. 76-3 of 2019, titled Shamsher Singh vs. Sunder Singh, whereby learned trial Court, while holding petitioner-accused (hereinafter referred to 1Whether the reporters of the local papers may be allowed to see the judgment? 2 2026:HHC:30908 as the ‘accused’) guilty of his having committed an offence punishable under Section 138 of the Negotiable Instruments Act (for short ‘Act’), convicted and sentenced him to undergo simple imprisonment for a period of one year and pay compensation to the tune of Rs. 5,10,000/- to the respondent-complainant (hereinafter referred to as the ‘complainant’). 2. Precisely, the facts of the case, as emerge from the pleadings as well as other documents adduced on record by the respective parties, are that the respondent-complainant instituted a complaint under Section 138 of the Act in the competent Court of law, alleging therein that in apple season 2018, accused purchased 285 packed boxes of apple from him at the rate of Rs.1400/- per box for Rs. 3, 99,000/- and 10 apple bags at the rate of Rs. 100/- per bag for Rs. 1000/-. With a view to discharge his lawful liability, accused issued cheque bearing No.245714, dated 18.09.2018, amounting to Rs. 4, 00,000/- drawn on his account being maintained in the Punjab National Bank, Saraswati Nagar, Tehsil Jubbal. However, fact remains that aforesaid cheque on its presentation to the bank concerned was dishonoured on 14.12.2018 with the remarks 'insufficient funds'. Immediately, after receipt of aforesaid return memo, respondent-complainant served accused with legal notice dated 19.12.2018, calling upon him to make the payment good within 3 2026:HHC:30908 stipulated time, but since needful was not done, complainant had no option, but to institute proceedings under Section 138 of the Act in the competent Court of law, which subsequently, on the basis of evidence adduced on record by the respective parties, held accused guilty of his having committed offence punishable under S. 138 of the Act and accordingly, convicted and sentenced him as per description given herein above. 3. Being aggrieved and dissatisfied with aforesaid judgment of conviction and order of sentence recorded by learned trial Court, present petitioner-accused preferred an appeal in the Court of learned Additional Sessions Judge, Rohru, District Shimla, Himachal Pradesh, but same also came to be dismissed vide judgment dated 16.03.2024. In the aforesaid background, petitioner-accused has approached this Court in the instant proceedings, praying therein for his acquittal after quashing and setting aside the impugned judgment of conviction and order of sentence recorded by Courts below. 4. Vide order dated 12.11.2024, this Court suspended the substantive sentence imposed by Court below, subject to petitioner- accused furnishing personal bond and depositing 30% of the compensation amount within a period of three weeks. Though, aforesaid order was complied with, but thereafter matter was repeatedly adjourned, enabling petitioner to deposit the remaining 4 2026:HHC:30908 amount, but fact remains that till date, balance amount has not been deposited and as such, this Court has no option, but to decide the petition on its own merit. 5. Having heard learned counsel representing the parties and perused material available on record vis-à-vis reasoning assigned in the impugned judgment passed by learned Additional Sessions Judge, Rohru District Shimla, Himachal Pradesh, affirming judgment of conviction and order of sentence recorded by learned trial Court, this Court is not persuaded to agree with learned counsel for the petitioner that both the Courts below have failed to appreciate the evidence in its right perspective, rather this Court is convinced and satisfied that both the Courts below have meticulously dealt with each and every aspect of the matter and there is no scope left for interference. 6. Interestingly, in the case at hand, accused in his statement recorded under Section 313 Cr.P.C, nowhere denied factum of his having purchased apple boxes and bags from the complainant. He also did not dispute the factum of his having issued cheque as well as signatures thereupon, rather attempted to carve out a case that blank cheque issued by him has been misused by the complainant. Once factum with regard to issuance of cheque as well as signatures thereupon never came to be disputed, no illegality can 5 2026:HHC:30908 be said to have been committed by the 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 towards discharge of 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 instant case, despite sufficient opportunities, petitioner-accused failed to lead any evidence and as such, he otherwise failed to probablize the defence, sought to be raised by him, while deposing under Section 313 Cr.P.C. 7. Complainant, while examining himself as CW-1, tendered his evidence by way of affidavit Ex.CW1/A, reiterating therein the contents of the complaint. Besides above, he also tendered in evidence cheque Ex.CW1/B, dishonour memo Ex.CW1/C, legal notice Ex. CW1/D and postal receipt Ex. CW/1E. Complainant successfully proved on record that accused had purchased apple crop from him for total consideration of Rs. 4,00,000/- and towards discharge of his lawful liability, he issued cheque Ex.CW1/B, amount to Rs. 4, 00,000/- but same was dishonoured vide memo Ex. CW1/C with the remarks “insufficient fund”. He also proved on record that before initiating proceedings under Section 138 of the Act, he had issued legal notice 6 2026:HHC:30908 Ex.CW1/D, calling upon the accused to make the payment good within stipulated time, but he despite of his having received legal notice, failed to make the payment good. 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, rather pattern of cross-examination conducted upon afore witness, clearly establishes factum with regard to issuance of cheque as well as signatures thereupon towards discharge of lawful liability by the accused. 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:- 7 2026:HHC:30908 “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 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 8 2026:HHC:30908 ground to proceed in the matter, would be extremely heavy. 9. Reliance in this regard is placed upon judgment passed by the Hon’ble Apex Court in Bir Singh Vs. Mukesh Kumar, (2019) 4 SCC 197, wherein it was observed as under: “37. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted. 38. answered in the negative. 40. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. 41. The fact that the appellant-complainant might have been an Income Tax practitioner conversant with knowledge of law does not make any difference to the law relating to the dishonour of a cheque. The fact that the loan may not have been advanced by a cheque or demand draft or a receipt might not have been obtained would make no difference. In this context, it would, perhaps, not be out of context to note that the fact that the respondent-accused should have given or signed blank cheque to the appellant- complainant, as claimed by the respondent-accused, shows that initially there was mutual trust and faith between them. 42. In the absence of any finding that the cheque in question was not signed by the respondent-accused or not voluntarily made over to the payee and in the absence of any evidence with regard to the circumstances in which a blank signed cheque had been given to the appellant- complainant, it may reasonably be presumed that the cheque was filled in by the appellant-complainant being the payee in the presence of the respondent-accused being the drawer, at his request and/or with his 9 2026:HHC:30908 acquiescence. The subsequent filling in of an unfilled signed cheque is not an alteration. There was no change in the amount of the cheque, its date or the name of the payee. The High Court ought not to have acquitted the respondent-accused of the charge under Section 138 of the Negotiable Instruments Act. 10. 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. Similarly, factum with regard to signatures and issuance of cheque by the accused towards discharge of lawful liability stands duly established on record. 11. 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 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 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 10 2026:HHC:30908 is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice.” 12. 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. 13. 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. 14. 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 11 2026:HHC:30908 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. 15. 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 two months to serve the sentence as awarded by the learned trial Court, if not already served. Bail bonds of the petitioner are cancelled. Interim direction, if any, stands vacated. Pending applications, if any, also stand disposed of. 16. Learned trial Court is directed to release the amount lying deposited with it in favour of the respondent-complainant, by remitting the same in his saving bank account, details whereof shall be furnished by learned counsel for the respondent-complainant within a period of two weeks. (Sandeep Sharma), Judge July 27,2026 (shankar)