2026:HHC:15766 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.236 of 2014 Date of Decision: 11.05.2026 __________________________________________________________________________ Sarika Sahni ……...Appellant Versus Shri Bhupinder Thakur …....Respondent Coram: Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? __________________________________________________________________________ For the Appellant: Mr. Rakesh Thakur, Advocate. For the Respondent: Mr. Akshay Katoch, Advocate. _________________________________________________________________________________ Sandeep Sharma, J. (Oral) Instant criminal appeal filed under Section 378 of Cr.P.C., lays challenge to judgment dated 15.03.2014, passed by learned Judicial Magistrate First Class, Rajgarh, Camp at Pachhad, District Sirmaur, H.P., in Criminal Case No.28/3 of 2011, titled as Sarika Sahni Vs. Bhupinder Thakur, whereby complaint having been filed by appellant (hereinafter, ‘complainant’) under Section 138 of the Negotiable Instruments Act (hereinafter, ‘the Act’) came to be dismissed. 2. Precisely, the facts of the case, as emerge from the pleadings, as well as other material adduced on record by the respective parites are that complainant filed complaint under Section 138 of the Act in the competent Court of law, alleging therein that respondent (hereinafter, ‘accused’), who was known to her, used to borrow grocery items from her from time to time. On 04.04.2011 and 02.06.2011, accused borrowed 2026:HHC:15766 2 grocery and other items from the shop of the complainant at Narag, Tehsil Pachhad, District Sirmaur, amounting to ₹1,00,000/-. With a view to discharge his liability, accused issued two Cheques i.e. bearing No.765556 dated 04.04.2011 amounting to 50,000/- and another cheque ₹ No.765557 dated 02.06.2011 for a sum of 50,000/- ₹ drawn at Dena Bank, Solan, however, fact remains that both the Cheques, detailed hereinabove, were dishonoured on their presentation to State Bank of Patiala, Wasni, Tehsil Pachhad, District Sirmour, H.P., with remarks 'insufficient funds' in the bank account of accused. Immediately, after receipt of intimation regarding dishonour of Cheque, complainant sent legal notice to accused through registered post on 02.09.2011 on his correct address, calling upon him to make the payment good within the stipulated time, however, fact remains that accused neither replied the notice, nor paid the amount and as such, complainant had no option but to institute proceedings under Section 138 of the Act in the competent Court of law, which came to be dismissed. In the afore background, accused approached this Court in the instant appeal, praying therein for conviction of accused after setting aside the judgment of acquittal recorded by learned trial Court. 3. In nutshell, grouse of the appellant, as has been highlighted in the grounds of appeal and further canvassed by Mr. Rakesh Thakur, learned counsel representing the appellant, is that learned trial Court has 2026:HHC:15766 3 failed to appreciate the evidence in its right perspective, as a result thereof, findings detriment to the interest of complainant has come to the fore. While making this Court peruse evidence led on record by the complainant, Mr. Thakur attempted to persuade this Court to agree with his contention that complainant successfully proved on record that she is the proprietor of Sahni Enterprises and accused had purchased grocery items from the complainant. Admittedly, accused had been purchasing grocery items from shop of the complainant on credit basis. He submitted that once factum with regard to issuance of Cheque as well signatures thereupon never came to be refuted, coupled with the fact that complainant was able to establish on record that accused had been frequently purchasing grocery items from the shop of the complainant, there was no occasion, if any, for learned trial Court to dismiss the complaint. 4. To the contrary, Mr. Akshay Katoch, learned counsel representing respondent-accused, supported the impugned judgment recorded by learned trial Court. 5. Having heard learned counsel representing the parties and perused material available on record, this Court finds that complainant attempted to set up a case that accused, with a view to discharge his liability, issued two Cheques, detailed hereinabove, amounting to ₹50,000/- each, for discharge of lawful liability, however, same were 2026:HHC:15766 4 dishonoured with the remarks ‘exceed arrangements’ in the bank account of the accused. Complainant set up a case that she is the sole proprietor of Sahni Enterprises and on account of his prior acquaintance with the complainant, accused had been purchasing grocery items from the shop of the complainant. 6. To prove her case, complainant besides examining herself, examined as many as three witnesses, i.e. CW1-Mukand Lal, CW2-Prateek Gill and CW3-Dheeraj Kumar. CW1-Mukand Lal, Postman, Sub Post Office, Chambaghat, proved registered letter Ext.CW1/A, addressed to the accused on his correct address. CW-2 Shri Prateek Gill proved Cheques Ext.CW2/A & Ext.CW2/B, copy of abstract of cheque issuing register and return memos Ext.CW2/D and Ext.CW2/E. CW-3 Dheeraj Kumar proved copy of Cheque presentation entry Ext.CW3/A. Complainant examined herself as CW-4 and deposed that accused is known to her, who used to purchase the grocery items from her from time to time. On 04.04.2011 and 02.06.2011, accused borrowed grocery and other items for the consideration of 1,00,000/- from her shop at Narag. She deposed that accused borrowed ₹ said items for a period of two months and in lieu of the same, issued two Cheques bearing No.765556 dated 04.04.2011 amounting to 50,000/- ₹ and another Cheque No.765557 dated 02.06.2011 for a sum of 50,000/- ₹ with the assurance that the same would be honoured on their presentation. 2026:HHC:15766 5 She deposed that when afore Cheques were presented in State Bank of Patiala, Wasni, for encashment, same were returned on 12.08.2011 due to ‘exceed arrangements’. She deposed that immediately after receipt of return memo, she served legal notice upon accused on his correct address on 02.09.2011, but accused refused to receive the notice. In her cross- examination, CW4-Sarika Sahni, denied that she was not the proprietor of Sahni Enterprises. She also denied that she has no transaction with the accused and the Cheque of the accused has been misused. 7. If the evidence led on record by the complainant is read in conjunction, it can be safely concluded that complainant was able to establish on record that accused had issued two Cheques amounting to ₹50,000/- each, but the same were dishonoured with the remarks ‘exceed arrangement’. Accused in his statement recorded under 313 Cr.P.C. denied that he had issued Cheques in question towards the purchase, if any, made by him from the shop of the complainant. He stated that complainant was running chit-fund company and he was member of the same. He stated that his two Cheques amounting to ₹50,000/- each were obtained by the complainant and he had repaid the amount of 1,08,000/- but his ₹ Cheques have not been returned. 8. Accused also examined four witnesses in defence. RW-1 Dheeraj Kumar deposed that he had been posted as a Cashier in State 2026:HHC:15766 6 Bank of Patiala, Wasni, since November, 2011. He deposed that he brought the record of A/c No.55138363506, as per which, Sarika Sahni, i.e. complainant, was the proprietor of this Account. He also stated that account is pertaining to cash credit limit of 5,00,000/- for grocery shop. ₹ He deposed that afore is the Account of Sahni Enterprises in his bank, the record of which has been brought by him. He deposed that Account was opened on 22.05.2003 and the certified copy of the same is Ext.RW1/A. RW-2 Girish Sahni deposed that he was the sole proprietor of Sahni Enterprises. RW-3 Sarika Sahni deposed that she has come with the cash memo, bill book and ledger w.e.f. 01.03.2011 to 31.07.2011. Photocopy of Page No.1 and 2 of the register is Ext.D1, which is with regard to the entry in the name of the accused. During her cross-examination on behalf of the accused, afore witness turned hostile. RW-3 admitted that the document Mark-D2 bears her signature. This witness has further stated that the signatures in the red circle of Mark-D2 are similar to her signatures. During cross-examination by learned counsel for complainant, this witness stated that the cash memo Ext.D3 was written by her husband. RW-4 Kumari Poonam deposed that the complainant is known to her. While stating that on 15.04.2011, complainant came to the shop of her father and she was also sitting there, this witness stated that amount of 1,10,800/- ₹ was paid by her father to the complainant and said payment was got 2026:HHC:15766 7 recorded in the register of shop of the accused. Afore witness further deposed that complainant signed against the payment received. Photocopy of Page Nos.1 & 2 of the register is Ext.D1, where the entry of accused is written. 9. Learned counsel representing the complainant attempted to argue that bare perusal of pleadings as well as documents adduced on record by the complainant clearly establishes factum with regard to purchase of grocery items as well as issuance of Cheque and his signatures thereupon. Though factum with regard to issuance of Cheque as well as signatures thereupon have not been disputed, but complainant nowhere succeeded in proving that Cheques, which are subject matter of the present case, were issued towards the discharge of lawful liability. 10. To the contrary, accused successfully proved on record that complainant was running a chit fund company and the accused was member of the company and the amount of ₹1,10,000/- was paid by the accused. Cheque was not drawn by the accused for his legally enforceable liability. 11. In the case at hand, though service of legal notice Ex.CW4/B could not be proved, but once complainant-CW-4 successfully proved on record that legal notice was issued on the correct address, service of the same rightly came to be presumed. Once the notice was sent to the correct 2026:HHC:15766 8 address of the accused, as written in the complaint, learned trial Court rightly presumed that accused was duly served through notice to make the payment of the Cheques, however, fact remains that despite receipt of notice, accused neither replied to the same, nor made payment. Hence, the learned trial Court rightly held that complainant had served accused with legal notice prior to her having lodged complaint under Section 138 of the Act. 12. Interestingly, dispute arose inter se complainant and RW2- Girish Sahni with regard to proprietorship. Complainant claimed herself to be the sole proprietor of firm Sahni Enterprises, whereas RW2-Girish Sahni also claimed himself to be the sole proprietor of the firm. With a view to establish sole proprietorship of Sahni Enterprises, record of Excise Department ought to have been adduced on record. In the instant case, neither any official from the Excise Department ever came to be examined by the complainant, nor any document issued by the Excise Department was adduced on record indicative of the fact that complainant is the sole proprietor of the firm. 13. Since no document from the competent authority with regard to sole proprietorship of the firm ever came to be adduced on record, learned trial Court rightly not considered complainant to be the sole proprietor of the firm. Mere entry in the bank account with regard to 2026:HHC:15766 9 proprietorship of the firm may not be sufficient to establish that complainant is the proprietor of the firm Sahni Enterprises. Besides above, bare perusal of cash memo Ext.D3 clearly reveals that the items of 49,945.76/- were purchased by the accused from the complainant. The ₹ other documents Ext.D1 and copy of ledger Ext.D2 reveal that there is entry of 1,00,300/- in the name of accused but neither any cash memo ₹ regarding this amount nor list of items purchased by accused ever came to be adduced on record, hence, learned trial Court rightly discarded aforesaid documents. Having taken note of cash memo Ext.D3, only liability to the extent of 49,945.76/- can be said to have been proved, but since ₹ complainant failed to prove herself to be the sole proprietor of Sahni Enterprises, learned trial Court rightly held complaint filed before it to be not maintainable. 14. Consequently, in view of detailed discussion made hereinabove, this Court finds no illegality or infirmity in the impugned judgment passed by the learned trial Court and as such, same is upheld. Accordingly, present appeal is dismissed. The petition stands disposed of in the aforesaid terms, along with all pending applications. (Sandeep Sharma), May 11, 2026 Judge (Rajeev Raturi)