2026:HHC:15770 THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No.638 of 2025 Date of Decision: 11.05.2026 _______________________________________________________ Prem Lata …….Petitioner Versus Ashish Malhotra … Respondents _______________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 For the Petitioner : Mr. Dinesh Anand Sharma & Mr. Anil Chauhan, Advocates. For the Respondent : Mr. Ajay Kochhar, Senior Advocate with Mr. Vivek Sharma, Advocate. _______________________________________________________ Sandeep Sharma, Judge(oral): Instant Criminal Revision petition filed under Section 438 read with Section 442 of the Bharatiya Nagarik Suraksha Sanhita, lays challenge to judgment dated 12.09.2025, passed by learned Sessions Judge, Shimla, District Shimla, Himachal Pradesh, in Criminal Appeal No.153-S/10 of 2024, affirming judgment of conviction and order of sentence dated 04.10.2024, passed by learned Chief Judicial Magistrate, Shimla, District Shimla, Himachal Pradesh, in Criminal case RBT No.16-3 of 2017/2014, titled Ashish Malhotra versus Prem Lata, whereby learned trial Court, while holding petitioner-accused (hereinafter referred to as the 1Whether the reporters of the local papers may be allowed to see the judgment? 2 2026:HHC:15770 ‘accused’) guilty of her having committed an offence punishable under Section 138 of the Negotiable Instruments Act (for short ‘Act’), convicted and sentenced her to undergo simple imprisonment for a period of six months and pay fine to the tune of Rs.10,00,000/- 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 accused entered into an agreement dated 24.02.2014 at Shimla with the complainant, thereby agreeing to sell the super structure and land belonging to her comprising of Khata/ Khatauni No.120 min/252, Khasra No.1133/252, measuring 0-00-90 hectares, situate at Mohal Chamyana, Tehsil Shimla (Rural) District Shimla, for total sale consideration of Rs. 52, 00,000/- to the complainant. At the time of execution of agreement, complainant paid sum of Rs. 5, 00,000/-, as advance payment to the accused. Out of the said amount, Rs. 2, 50,000/- was paid in cash, whereas remaining Rs. 2, 50,000/- was paid through cheque. It was agreed interse parties that the remaining sale consideration shall be paid at the time of registration of the sale deed. At the time of execution of the said 3 2026:HHC:15770 agreement, complainant disclosed to the accused that he is non- agriculturist and he will seek permission from the State Government under Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 for purchase of the land. It was also agreed interse parties that in case the complainant failed to obtain requisite permission, the accused shall refund advance payment of Rs. 5, 00, 000/- to the complainant. After execution of the agreement, complainant tried his best to get requisite permission under Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 from the State Government, but since he did not get the requisite permission, he informed accused, who as per the agreement, issued cheque bearing No.349557, dated 09.09.2014, amounting to Rs. 5,00,000/-, drawn on State Bank of Patiala, Shimla East, in favour of the complainant, however fact remains that aforesaid cheque on its presentation to the bank concerned i.e., Allahabad Bank, Shimla, was dishonoured for want of sufficient funds in the bank account of the accused vide return memo dated 10.09.2014. Immediately, after receipt of return memo, complainant served accused with legal notice dated 24.09.2014, calling upon her to make payment good within stipulated time, but fact remains that neither accused replied to the legal notice nor paid the money and as such, complainant had no option, but to initiate proceedings under Section 138 of the Act in the 4 2026:HHC:15770 competent Court of law, which subsequently, on the basis of evidence adduced on record by the respective parties, held the accused guilty of her having committed offence punishable under S. 138 of the Act and accordingly, convicted and sentenced her 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 Sessions Judge, Shimla, District Shimla, Himachal Pradesh, but same also came to be dismissed vide judgment dated 12.09.2025. In the aforesaid background, petitioner-accused approached this Court in the instant proceedings, praying therein for her acquittal after quashing and setting aside the impugned judgment of conviction and order of sentence recorded by Courts below. 4. This Court vide order dated 10.11.2025, suspended the substantive sentence imposed by Court below, subject to petitioner- accused furnishing personal bond in the sum of Rs. 50,000/- with one surety in the like amount and depositing 30% of the compensation amount within a period of six weeks, but fact remains that aforesaid order never came to be complied with. Repeatedly, matter was adjourned, enabling petitioner-accused to comply with the aforesaid order, but in vain. On 23.02.2026, petitioner Prem Lata came present 5 2026:HHC:15770 before this Court and sought time to comply with the order dated 10.11.2025, but thereafter, on three occasions matter was adjourned. On 07.04.2026, this Court taking lenient view again granted time to the accused to deposit the amount, but while passing such order, made it clear that in case needful is not done on or before the next date of hearing, this Court shall be constrained to decide the petition on its own merit. Since amount has not been deposited, 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 judgment passed by learned Sessions Judge, Shimla, District Shimla, Himachal Pradesh, thereby 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 fully convinced and satisfied that both the Courts below, while holding petitioner-accused guilty of her having committed offence punishable under Section 138 of the Act, have appreciated the evidence in its right perspective and there is no scope left for interference. 6 2026:HHC:15770 6. Interestingly, in the case at hand, though accused attempted to set up a case that cheque in question does not bear her signatures, but such plea of her was negated on the basis of the report submitted by the SFSL, to whom the admitted signatures of the accused had been sent for comparison at her own instance. 7. Since factum with regard to issuance of cheque as well as signatures thereupon stands established on record with the placing of aforesaid report of SFSL received by learned trial Court, no illegality can be said to have been committed by the Court 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. 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 7 2026:HHC:15770 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:- “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 8 2026:HHC:15770 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. 9. In the case at hand, complainant, while examined himself as CW-4, tendered his evidence by way of affidavit Ex. CW4/A, wherein he specifically reiterated the averments contained in the complaint. Besides above, he also placed on record copy of legal notice dated 24.09.2014 (Ex. CW4/B) and postal receipt thereof dated 25.09.2014 (Ex. CW4/C). 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. In his cross-examination, complainant admitted that he has not placed on record any document to show that he had applied for permission under Section 118 of the HP Tenancy and Land Reforms Act. He also denied the suggestion put to him that he never applied for such permission. He also denied that he had lent money to the accused on interest and at that time the cheque was retained by him from the accused as security. He further denied that cheque in question was handed over to him by one Booby and he also received entire 9 2026:HHC:15770 payment through said Bobby. If the pattern of cross-examination conducted upon the complainant is perused, it clearly establishes factum with regard to issuance of cheque as well as signatures thereupon. By putting aforesaid suggestions accused attempted to carve out a case that money was advanced to her on interest and she had repaid the same, but yet cheque, which was kept as security, was not returned. 10. Besides above, complainant, with a view to prove Agreement to Sell, dated 25.02.2014, examined Notary Public, Smt. Sunita Gupta as CW-1, who deposed that agreement Ex.CW1/A was attested by her. During her cross-examination, she admitted that said agreement was filled in her presence. However, she denied the suggestion that no such agreement was ever executed between the parties. 11. CW-2, Manoj Verma, who is the employee of the banker of the complainant, also stated that intimation memo Ex. CW2/A was issued by his banker i.e. Allahabad Bank, Shimla on the receipt of dishonour memo Ex. CW2/B from the banker of the accused. 12. CW-3, Sh. Hari Singh Panwar, Advocate, who signed the agreement Ex. CW1/A, also deposed that he identified the purchaser i.e. the complainant. In his cross-examination, he expressed inability to recall if the agreement Ex. CW1/A was already signed by both the 10 2026:HHC:15770 parties when he appended his signature on the same as identifier. If the evidence led on record by the complainant is read in conjunction, it can be safely concluded that he successfully proved on record that he had paid sum of Rs. 5,00,000/- as advance for purchasing the property, as detailed hereinabove, but since he did not get the requisite permission from the Government of Himachal Pradesh, he, in terms of the agreement, requested the accused to return the money, who though, while acting upon the terms and conditions, issued cheque, but same was dishonoured. 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 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 11 2026:HHC:15770 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. 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. 16. 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. 12 2026:HHC:15770 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.” 17. 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. 18. 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 13 2026:HHC:15770 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. 19. 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. 20. Accordingly, the present criminal revision petition is dismissed being devoid of any merit. The petitioner is directed to surrender herself before the learned trial Court within a period of 15 days 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. (Sandeep Sharma), Judge May 11,2026 (shankar)