2026:HHC:19400 THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No.01 of 2026 Date of Decision: 21.05.2026 _______________________________________________________ Nirmal Singh …….Petitioner Versus Balwinder Singh … Respondents _______________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 For the Petitioner : Mr. Pranjal Munjal, Advocate. For the Respondent : Mr. Parveen Chandel, 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 03.11.2025, passed by learned Additional Sessions Judge, Nahan, District Sirmaur, Himachal Pradesh, in Criminal Appeal No.38-N/10 of 2024, affirming judgment of conviction dated 22.08.2024 and order of sentence dated 24.08.2024, passed by learned Chief Judicial Magistrate, Nahan, District Sirmaur, Himachal Pradesh, in Complaint No.90/3 of 2022 titled Balwinder Singh vs. Nirmal Singh, whereby learned trial Court, while holding petitioner-accused ( hereinafter referred to as the ‘accused’) guilty of his having committed an offence punishable 1Whether the reporters of the local papers may be allowed to see the judgment? 2 2026:HHC:19400 under Section 138 of the Negotiable Instruments Act (for short ‘Act’), convicted and sentenced him to undergo simple imprisonment for a period of six months and pay fine to the tune of Rs.9,60,000/- 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 filed a complaint under Section 138 of the Act in the competent Court of law, alleging therein that he is an agriculturist and sells milk as well as cash crops produce. He alleged that in the last week of September, 2019, accused approached him and expressed his intention to purchase cow’s milk, wheat, rice and other produce from him. He alleged that accused offered to pay the price after every six months to the complainant, which proposal of the accused, was accepted by him and thereafter, he started selling milk and other produce to the accused w.e.f. October, 2019. However, accused did not make the payment during the outbreak of pandemic Covid-19, but complainant remained lenient and permitted him to continue purchasing milk and other produce from him. However, subsequently, in order to discharge his liability, accused issued cheque bearing No.002076, dated 30.12.2021, amounting to Rs. 4, 80,000/- drawn on State Bank of 3 2026:HHC:19400 India, Branch at Naggal, District Ambala, Haryana, in favour of the complainant. However, fact remains that aforesaid cheque on its presentation to the bank concerned was dishonoured on the ground of insufficient funds in the bank account of the accused vide memo dated 31.12.2021. Immediately, after receipt of return memo, complainant served accused with legal notice sent through registered post on 19.10.2022, calling upon him to make the payment of outstanding amount within stipulated time, but since he failed to make the payment good within stipulated time, complainant had no option, but to initiate 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 the 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, Nahan, District Sirmaur, Himachal Pradesh, but same also came to be dismissed vide judgment dated 03.11.2025. In the aforesaid background, petitioner-accused has approached this Court in the instant proceedings, praying therein for 4 2026:HHC:19400 his acquittal after quashing and setting aside the impugned judgment of conviction and order of sentence recorded by Courts below. 4. Vide order dated 02.01.2026, this Court suspended the substantive sentence imposed by Court below, subject to petitioner- accused furnishing personal bonds and depositing 30% of the compensation amount within a period of six weeks. Though, aforesaid order was complied with, but thereafter repeatedly matter was adjourned, enabling petitioner to either settle the matter with the complainant or to deposit the balance amount. However, fact remains that despite repeated opportunities, neither petitioner has come present nor has deposited the amount and as such, this Court has no option, but to decide the petition on its own merit. 5. I have heard learned counsel for the parties and gone through the record carefully. 6. Careful perusal of the pleadings as well as other material adduced on record, clearly establishes factum with regard to issuance of cheque by the accused in favour of the complainant towards discharge of lawful liability and as such, 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 finds that both the courts below have meticulously 5 2026:HHC:19400 dealt with each and every aspect of the matter and there is no scope left for interference. 7. Interestingly, in the case at hand, factum with regard to issuance of cheque as well as signatures thereupon never came to be refuted, rather accused in his statement recorded under Section 313 Cr.P.C., stated that cheque was misused by the complainant, as the same had been given to another person, namely Titu @ Naresh Kumar. Interestingly, afore Titu @ Naresh Kumar never came to be examined and as such, defence otherwise proposed to be set up never came to be probablized. 8. Though, accused examined Sh. Amrik Singh, Ex- Sarpanch as DW-1, but aforesaid witness attempted to prove that cheque was actually issued to Titu @ Naresh Kumar, but in his cross-examination, he clarified that he has no idea about other business dealing of accused with any other person except that of Titu. Most importantly, this witness categorically admitted in his cross- examination that he has no idea about the facts of the present case and other business dealing of the accused. Since afore witness had no knowledge about the business transaction interse complainant and the accused, no illegality can be said to have been committed by the Courts below, while discarding aforesaid statement made by aforesaid witness. Moreover, no suggestion, wroth the name, ever 6 2026:HHC:19400 came to be put to the complainant that blank signed cheque was issued in favour of Titu @ Naresh Kumar and yet same was misused by the complainant. 9. To the contrary, complainant, while examining himself as CW-1, successfully proved on record that accused with a view to discharge his liability issued cheque Ex. P-2/PW1 bearing No. 002076, dated 30.12.2021, amounting to Rs. 4, 80,000/-, drawn on State Bank of India. However same was dishonoured on ground of insufficient funds vide memo dated 31.12.2021 (Ex.P-3/PW1). Complainant also proved on record that before initiating proceedings under Section 138 of the Act, he served accused with legal notice, Ex. P-4/PW1 through registered post on 19.01.2022 vide postal receipt Ex.P-5/PW1, calling upon the accused to make the payment good within stipulated time. 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 itself establishes factum with regard to issuance of cheque as well as signature thereupon. Though, accused by way of putting certain suggestions attempted to set up a case that cheque was issued to 3rd person i.e. Titu @ Naresh Kumar, but same came to be misused by the complainant. However, no explanation ever came to be put forth on record that how and in what 7 2026:HHC:19400 circumstances, cheque came into the possession complainant. To prove factum with regard to issuance of cheque, which was allegedly issued in favour of Titu @ Naresh Kumar, could have been established by examining aforesaid Titu @ Naresh Kumar, but afore person never came to be examined. 10. Since factum with regard to issuance of cheque as well as signature thereupon never came to be refuted, no illegality can 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. ought to be raised by him, while deposing under Section 313 Cr.P.C. 11. 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 8 2026:HHC:19400 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 9 2026:HHC:19400 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. 12. 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 dishonoured, the consequences contemplated under Section 138 and the other provisions of N.I. Act would flow. 10 2026:HHC:19400 13. 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. 14. 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. 15. 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:- 11 2026:HHC:19400 “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.” 16. 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. 17. 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 12 2026:HHC:19400 evidence and as such, this Court sees no reason to interfere with the well reasoned judgments passed by the courts below. 18. 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. 19. 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 30 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. 20. The amount lying deposited with the learned trial Court is ordered to be released 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 one week. (Sandeep Sharma), Judge May 21, 2026 (shankar)