CR.R/418/2025 of TARU Vs NARESH KUMAR AND ANR on 20 August 2026

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Revision No.418 of 2025

Date of Decision: 20.08.2026 __________________________________________________________________________ Taru

……...Petitioner Versus Naresh Kumar and Another

…....Respondents

Coram

Hon’ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting? _____________________________________________________________________________

For the Petitioner: Mr. Arvind Negi, Advocate.

For the Respondents: Mr. Arsh Chauhan, Advocate, for respondent No.1.

Mr. Rajan Kahol & Mr. Vishal Panwar, Additional Advocates General, with Mr. Ravi Chauhan, Deputy Advocate General, for State. __________________________________________________________________________

Sandeep Sharma, J. (Oral)

Instant criminal revision petition filed under Section 438 read with Section 442 of Bharatiya Nagarik Suraksha Sanhita, 2023, lays challenge to judgment dated 02.06.2025, passed by the learned Additional Sessions Judge, Nahan, District Sirmaur, Himachal Pradesh, in Criminal Appeal No.3-N/10 of 2024, titled as Taru Vs. Naresh Kumar and Another, affirming judgment of conviction and order of sentence dated 04.12.2023, passed by the learned Judicial Magistrate First Class, Rajgarh, District Sirmaur, Himachal Pradesh, whereby the learned trial Court while holding the petitioner-accused (for short, ‘accused’) guilty of having committed offence punishable under Section 138 of the Negotiable Instruments Act (for short ‘the Act’), convicted and sentenced him to undergo simple imprisonment for a period of one year and pay compensation to the tune of ₹1,90,000/- to the respondent-complainant.

2. Precisely, the facts of the case, as emerge from the record are that respondent-complainant (for short ‘complainant’) instituted a complaint under Section 138 of the Act in the competent Court of law alleging therein that accused, who was well known to him, approached him in the month of March, 2022 to arrange an amount of ₹1,50,000/- for domestic use. Complainant, after having arranged the aforesaid amount from his own sources, advanced ₹1,50,000/- to accused in the last week of March, 2022. Though accused agreed to return the said amount within a period of three months, but same was not returned within the agreed time. However, in the month of May, 2022, accused issued post-dated cheque bearing No.538174 amounting to ₹1,50,000/- dated 17.05.2022 pertaining to his account maintained at Canara Bank, Rajgarh, Tehsil Rajgarh, District. However, fact remains that aforesaid cheque, on its presentation to the bank concerned was returned back with remarks "Funds Insufficient". Immediately after receipt of return memo, complainant served accused with legal notice Ex.CW1/E, thereby calling upon him to make the payment good within the stipulated time, but since needful was not done within the stipulated time, complainant had no option but to institute complaint 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 04.12.2023, held the petitioner-accused guilty of having committed offence under Section 138 of the Act and accordingly, convicted and sentenced him, as per the description given hereinabove.

4. Though, at first instance, accused preferred an appeal in the Court of learned Additional Sessions Judge, Nahan, District Sirmaur, Himachal Pradesh, however, same was dismissed vide judgment dated 02.06.2025. 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 25.07.2025, this Court suspended the substantive sentence imposed by Court below, subject to petitioner-accused furnishing bail bonds and depositing 30% of the amount within a period of six weeks. However, fact remains that aforesaid order never came to be complied with. Court file reveals that repeatedly matter was adjourned, enabling petitioner to do the needful, but in vain. Vide order dated 02.12.2025, this Court vacated the interim protection granted to petitioner vide order dated 25.07.2025 and matter was adjourned enabling learned counsel representing the petitioner to inspect the record. In the afore background, this Court is left with no option, but to decide the case 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 learned counsel representing the petitioner, that Courts below have fallen 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. In the case at hand, accused, in his statement recorded under Section 313 Cr.P.C., though denied the allegations contained in the complaint, but submitted that he had only taken ₹50,000/- from the complainant. He also admitted factum with regard to his having issued cheque, but claimed that amount was not filled by him. He further stated that he had made online payment of ₹80,000/- to the complainant. He also admitted that he had received legal notice. Though opportunity was given to petitioner-accused to lead defence evidence, but since needful was not done, his right to lead evidence was closed by order of the Court on 04.12.2023, which was further not laid challenge in the superior Court of law.

8. Since factum with regard to issuance of cheque as well as signature thereupon never came to be disputed, rather was admitted, no illegality 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 instant case, despite sufficient opportunity granted by the Court, accused failed to lead any evidence.

9. 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 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 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.”

10. Hon’ble Apex Court has reiterated aforesaid law in Sanjabij Tari Vs. Kishore S.Borcar & Anr., Criminal Appeal No.1755 of 2010, Triyambak S. Hegde Vs. Sripad., (2022) 1 SCC 742, Basalingappa Vs. Mudibasappa (2019) 5 SCC 418, Aps Forex Services Pvt. Ltd. Vs. Shakti International Fashion Linkers & Ors., (2020) 12 SCC 724, Rohitbhai J

Patel Vs. The State Of Gujarat & Anr., (2019) 18 SCC 106, Rajesh Jain Vs. Ajay Singh, SLP (Crl.) No.12802 of 2022.

11. Complainant, with a view to prove his case, examined himself as CW-1 and tendered his evidence by way of affidavit, Ex.CW1/A. Besides above, he also produced on record cheque Ex.CW-1/B, cheque return memo Ex.CW-1/C, return letter Ex.CW-1/D, legal notice Ex.CW-1/E, postal receipt Ex.CW-1/F and acknowledgment Ex.CW-1/G. 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, by putting certain suggestions, accused virtually admitted the case of the complainant. He put a suggestion to complainant that accused had taken only ₹50,000/-, which was denied by the petitioner. Accused put a suggestion that money was paid to him by the accused along with interest, which suggestion was also denied. Though accused attempted to set up a case that he had returned ₹80,000/-, which defence is otherwise contrary to his statement made under Section 313 Cr.P.C., where he attempted to state that only ₹50,000/- was taken by him from the complainant. Another defence put forth by the accused is that after receipt of legal notice, he had repaid ₹80,000/- with interest to the complainant. It is pertinent to take note of fact that legal notice Ex.CW-1/E specifically mentioned that amount to be returned was ₹1,50,000/- and not ₹80,000/-. Accused in his statement recorded under Section 313 Cr.P.C. deposed that he had repaid a sum of

₹80,000/- online, and had even taken opportunity to lead defence evidence, but he failed to place on record any documentary evidence suggestive of the fact that ₹80,000/- was paid online.

12. 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. Defence otherwise attempted to set up could not be proved by the accused by leading cogent and convincing evidence. Since factum of issuance of Cheque by the accused as well as his signatures thereupon stand duly proved, 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 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.

13. 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 dishonoured on account of ‘Funds Insufficient’ 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.

14. 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 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.”

15. 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.

16. 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 evidence and as such, this Court sees no reason to interfere with the well- reasoned judgments passed by the Courts below.

17. 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.

18. 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 six weeks to serve the sentence as awarded by the learned trial Court, if not already served. Bail bonds of the petitioner, if any, are cancelled. 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 bank account, detail whereof, shall be furnished by his counsel within a period of one week.

Pending applications, if any, also stand disposed of.

(Sandeep Sharma), Judge August 20, 2026 (Rajeev Raturi)