2026:HHC:19009 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No.355 of 2025 Date of Decision: 20.05.2026 __________________________________________________________________________ Sh. Pankaj Ranjan ……...Petitioner Versus Sh. Ankur Joshi …....Respondent Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? _____________________________________________________________________________ For the Petitioner: Mr. Atul G. Sood, Advocate. For the Respondent: Mr. Nitin Thakur, Advocate. __________________________________________________________________________ Sandeep Sharma, J. (Oral) Instant criminal revision petition filed under Section 438 read with Section 442 of Bharatiya Nagrik Suraksha Sanhita, 2023, lays challenge to judgment dated 24.03.2025, passed by the learned Sessions Judge, Shimla, District Shimla, H.P., in Criminal Appeal No.111-S/10 of 2024, titled as Sh. Pankaj Ranjan Vs. Sh. Ankur Joshi, affirming judgment of conviction and order of sentence dated 01.07.2024, passed by the learned Judicial Magistrate First Class, Court No.3, Shimla, District Shimla, Himachal Pradesh, in case No.935/2007, whereby the learned trial Court while holding the petitioner-accused (hereinafter, “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 imprisonment for a period of one year and pay compensation to the tune of Rs.2,20,000/- to the respondent-complainant. 2026:HHC:19009 2 2. Precisely, the facts of the case, as emerge from the record are that respondent-complainant (hereinafter, ‘complainant’) instituted a complaint under Section 138 of the Act, in the competent Court of law, stating therein that accused borrowed a sum of ₹1,10,000/- from him in the month of June, 2007 in the presence of Roshan Sharma and Naveen Verma. Though accused had promised to return the borrowed money on or before 30.06.2007, however, he was unable to do so and as such, on 06.07.2007, with a view to discharge his legally enforceable liability, issued Cheque bearing No.115620, dated 06.07.2007, amounting to ₹1,10,000/- in favour of complainant, drawn at ICICI Bank, The Mall, Shimla. However, fact remains that aforesaid Cheque on its presentation to the Bank concerned, was dishonoured with the remarks “Insufficient Funds”. After receipt of aforesaid return memo, complainant served accused with legal notice dated 01.08.2007 calling upon him to make the payment good well within stipulated time. However, since petitioner-accused failed to make the payment good within the time stipulated in the legal notice, respondent/complainant was compelled to initiate proceedings under Section 138 of the Act in the Court of learned Judicial Magistrate First Class, Court No.3, Shimla, District Shimla, Himachal Pradesh. 3. Learned trial Court on the basis of material adduced on record by the respective parties, vide judgment/order dated 01.07.2024, held the petitioner-accused guilty of having committed offence under Section 138 of 2026:HHC:19009 3 the Act and accordingly, convicted and sentenced him, as per the description given hereinabove. 4. Though, at the first instance, accused preferred an appeal in the Court of learned Sessions Judge, Shimla, District Shimla, H.P., however, same was dismissed vide judgment dated 24.03.2025. In the aforesaid background, petitioner-accused has approached this Court by way of instant proceedings, seeking therein his acquittal after setting aside the judgments of conviction recorded by the Courts below. 5. Vide order dated 07.07.2025, Co-ordinate Bench of this Court stayed the substantive sentence imposed by the learned Court below, subject to petitioner/accused depositing 30% of the compensation amount and furnishing personal bond in the sum of Rs.50,000/-. Though aforesaid order was complied with, but thereafter matter was repeatedly adjourned, enabling petitioner to deposit the remaining amount, but in vain. As many as six opportunities came to be afforded to the petitioner to settle the matter with the complainant, but since balance amount has been not paid/deposited, this Court has no option but to decide the petition on its own merits. 6. Having heard learned counsel for the parties and perused material adduced on record, vis-a-vis reasoning assigned in the impugned judgments, this Court sees no reason to agree with Mr. Atul G. Sood, learned counsel representing the petitioner, that Courts below have fallen 2026:HHC:19009 4 in grave error while appreciating the evidence, rather this Court finds that both the Courts below have meticulously 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 his signatures thereupon never came to be refuted. If it is so, no illegality otherwise can be said to have been committed by the learned 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 a 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 case at hand, despite sufficient opportunity, no evidence ever came to be led on record 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 2026:HHC:19009 5 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 2026:HHC:19009 6 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 2026:HHC:19009 7 and whether the same would be a sufficient ground to proceed in the matter, would be extremely heavy.” 9. To the contrary, complainant, while examining himself as CW-1 categorically stated that notice Ex.CW1/E dated 01.08.2007 was issued on 01.08.2007 to the accused vide postal receipt Ex.CW1/F, but accused failed to make good the payment of Cheque amount of 1,10,000/- within ₹ 15 days. Besides above, he also proved on record that sum of 1,10,000/- ₹ was borrowed by the accused, who though with a view to discharge his legally enforceable liability issued Cheque Ex.CW1/B, but the same was dishonoured vide memo Ex.CW1/C with the remarks “Insufficient Funds”. Cross-examination conducted upon afore witness nowhere suggests that accused was able to extract anything contrary, to what this witness stated in examination-in-chief. Accused never disputed correctness of his address, on which legal notice Ex.CW1/E was issued, hence, both the Courts below rightly presumed the notice to have been served upon the accused before initiation of proceedings under Section 138 of the Act. 10. In his statement recorded under Section 313 Cr.P.C., accused nowhere disputed factum of issuance of Cheque, rather attempted to set up a case that he had issued security Cheque to the complainant. However, such defence never came to be probabilised by leading cogent and convincing evidence. Though accused sought time to lead evidence, but fact remains that he failed to lead the evidence and as such, defences otherwise proposed to be set up never came to be proved in accordance with law. 2026:HHC:19009 8 Moreover, this Court finds from the record that petitioner-accused, on account of his absence from the trial, was declared proclaimed offender. Complaint was filed in the year 2007, but even after expiry of almost 19 years, complainant has not been able to realise his money and as such, no illegality can be said to have been committed by the Courts below while holding petitioner-accused guilty of his having committed offence punishable under Section 138 of the Act. 11. If the evidence led on record by the respective parties is read in conjunction, this Court sees no reason to differ with the findings returned by the Courts below that complainant successfully proved on record that accused had issued Cheque towards discharge of his lawful liability. Similarly, accused by way of taking defence of issuance of Cheque as security, virtually accepted factum of his having issued the Cheque as well as his signatures thereupon and as such, both the Courts below rightly held accused guilty of the offence punishable under Section 138 of the Act, especially when Cheque in question issued by him was dishonoured on account of insufficient funds. 12. Since factum of issuance of Cheque by the accused as well as his signatures thereupon was never disputed, presumption as available under Section 118 and 139 of the Act rightly came to be invoked in the case of the petitioner that Cheque in question was issued in discharge of lawful liability. Since no evidence worth credence ever came to be led on record to 2026:HHC:19009 9 rebut the presumption, no illegality can be said to have been committed by the Courts below while holding petitioner/accused guilty for the commission of offence punishable under Section 138 of the Act. Though, defence came to be taken at the behest of the petitioner/accused that Cheque in question was issued as a security, but the same may not be of any help to the accused, for the reason that by now, it is well-settled that Cheque, even if issued as a ‘security’ can also be presented for encashment, if amount taken or promised to be repaid is not paid. 13. 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 2026:HHC:19009 10 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. Since Cheque issued by accused towards discharge of his lawful liability was returned on account of insufficient funds in the bank account of accused and he despite having received legal notice failed to make the payment good within the stipulated time, complainant had no option but to institute proceedings under Section 138 of the Act, which subsequently rightly came to be decided by both the Courts below on the basis of pleadings as well as evidence adduced on record by the respective parties. 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 2026:HHC:19009 11 the concurrent findings of fact and law relied upon 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 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 2026:HHC:19009 12 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. 19. Consequently, in view of the discussion made hereinabove 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 himself 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, if any, are cancelled. Interim order dated 07.07.2025 stands vacated. Amount, if any, deposited by the petitioner- accused with the learned trial Court as well as Registry of this Court is ordered to be released in favour of complainant by remitting the same in his 2026:HHC:19009 13 bank account, detail whereof, shall be furnished by his counsel within a period of one week. Pending applications, if any, also stand disposed of. t (Sandeep Sharma), Judge May 20, 2026 (Rajeev Raturi)