2026:HHC:12718 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Revision No.186 of 2025 Date of Decision: 21.4.2026 _____________________________________________________________________ Hitender Kumar ……...Petitioner Versus Dinesh Chauhan and Anr. …....Respondents Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? For the Petitioner: Mr. Bonit Thakur, Advocate. For the Respondents: Mr. Ajay Kumar Chauhan, Advocate, for respondent No.1. Mr. Rajan Kahol & Mr. Vishal Panwar, Additional Advocates General and Mr. Ravi Chauhan & Mr. Anish Banshtu, Deputy Advocates General, for the State. ___________________________________________________________________________ Sandeep Sharma, J. (Oral) Instant criminal revision petition, lays challenge to judgment dated 1.11.2023, passed by the learned Sessions Judge, Mandi Division Mandi, Himachal Pradesh, in Criminal Appeal No.40 of 2023, affirming the judgment of conviction and order of sentence dated 20/21.1.2023, passed by the learned Judicial Magistrate First Class-3, Mandi, District Mandi, Himachal Pradesh in Complaint No. 495 of 2016, 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 2026:HHC:12718 2 imprisonment for a period of three months and pay compensation to the tune of Rs. 4,50,000/- to the complainant. 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, stating therein that accused with a view to discharge his liability issued cheque bearing No.160113 dated 2.5.2016 amounting to Rs. 2,50,000/- in favour of the complainant, however aforesaid cheque on its presentation to the bank concerned was dishonored vide memo dated 24.5.2016 with remarks “insufficient funds”. Immediately, after receipt of aforesaid return memo, complainant served legal notice upon the accused, thereby calling upon him to make the payment good within stipulated time. Though aforesaid notice was received by the accused, but neither he replied to the same nor deposited the amount and 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 20/21.1.2023, held 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. 2026:HHC:12718 3 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 1.11.2023. 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 2.4.2025, 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/- along with one surety of the like amount with the trial Court, within four weeks. Though in terms of aforesaid order, accused deposited sum of Rs. 1,35,000/- with the learned trial Court, but thereafter, despite repeated opportunities, he failed to deposit the remaining amount. Repeatedly, this Court was informed that petitioner is ready and willing to settle the matter with the complainant and as such, this Court granted ample opportunities to the accused to do the needful but fact remains that neither remaining amount was deposited nor petitioner is coming forward to impart instructions and as such, this Court has no option but to decide the petition on merit. 2026:HHC:12718 4 6. Having heard learned counsel for the parties and perused material available on record vis-à-vis reasoning assigned in the judgment impugned in the instant proceedings, 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. In the instant case, complainant successfully proved all the ingredients of Section 138 of the Act. With a view to prove his claim, complainant examined himself as CW1, thereby reiterating contents of the complaint. Besides above, he also tendered his evidence by way of affidavit Ext.CW1/A, cheque Ext.CW1/B, bank memo Ext.CW1/C, intimation letter Ext.CW1/D, registered AD covers Ext.CW1/E, postal receipt Ext.CW1/F, legal notice Ext.CW1/G and acknowledgement Ext.CW1/H 8. If the cross-examination conducted upon afore witness is perused in its entirety, it cannot be said that accused was able to extract something contrary to what this witness stated in examination-in-chief. In his cross-examination, complainant specifically denied suggestion put to him that cheque in question was received by him from person namely Arun Sharma. He stated that accused had requested an amount of Rs. 3.00 lakh on 15.2.2015 and he lent Rs. 2.5 Lakh. He stated that he had withdrawn 2026:HHC:12718 5 the money for the purpose of marriage of his son, however he specifically denied suggestion put to him that he had received Rs.60,000/- from the accused. If the pattern of cross-examination conducted upon CW1 is seen, there is no denial with regard to issuance of cheque, but an attempt has been made by the accused to carve out a case that cheque was received by him one Arun Sharma and not from the accused, but he was unable to probablise such defence by leading cogent and convincing evidence that cheque issued in favour of Arun Sharma was misused by the complainant. Another suggestion put to CW1 that complainant had lent sum of Rs. 60,000/-to the petitioner, further establishes his liability towards him. 9. Accused examined DW1 Sh. Arun Sharma, who deposed that complainant is known to him for the last 10-12 years as he resides 3-4 kms ahead of his village. He submitted that complainant had lent sum of Rs.60,000/- to the accused in the 7th or 8th Month of 2015, out of which, Rs. 30,000/- was given to him and in consequence of the same, accused had given blank cheque to the complainant. In his cross-examination, this witness deposed that a complaint has been filed against him by the complainant, which has been disposed of, however he fairly admitted that no written document was executed for taking the amount of Rs. 60,000/-. Bare perusal of statement made by DW1 further establishes the case of the complainant that cheque in question was issued by the petitioner towards 2026:HHC:12718 6 discharge of lawful liability and same bears his signature. If it is so, 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 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 ample opportunities, failed to raise the probable defence. 10. 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 2026:HHC:12718 7 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 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 2026:HHC:12718 8 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.” 11. Furthermore, 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:12718 9 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.” 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 2026:HHC:12718 10 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. 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 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 fifteen days 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. April 21, 2026 (Sandeep Sharma), (manjit) Judge