Himachal Pradesh High Court
Lachhmi Singh vs Rajesh Radhaik on 29 July, 2025
( 2025:HHC:24723 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.427 of 2012 .
Reserved on: 16.07.2025.
Date of Decision: 29.07.2025.
Lachhmi Singh ...Appellant
Versus
Rajesh Radhaik
Coram
r to ...Respondent
Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes.
For the Appellant : Mr. B.S. Chauhan, Senior Advocate, with Ms. Aditi Rana, Advocate.
For the Respondent : Ms. Aruna Chauhan, Advocate.
Rakesh Kainthla, Judge The present appeal is directed against the judgment dated 29.08.2012, passed by learned Judicial Magistrate First Class, Theog, District Shimla, H.P. (learned Trial Court), vide which the complaint filed by the appellant (complainant before learned Trial Court) for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act, 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 29/07/2025 21:23:45 :::CIS 2( 2025:HHC:24723 ) 1881 (NI Act) was dismissed. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial .
Court for convenience.)
2. Briefly stated, the facts giving rise to the present appeal are that the complainant filed a complaint before the learned Trial Court against the accused for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act ( in short NI Act). It was asserted that the complainant is running a Grocery/Karyana shop in the name and style of M/s. Beli Ram Lachhmi Singh Deha, Tehsil Theog.
The accused purchased various articles from the complainant and issued a cheque of ₹2,00,000/- bearing No. 4579879, dated 30.09.2009, to discharge his liability. The complainant presented the cheque to H.P. State Co-operative Bank Ltd.
Chopal, District Shimla, but it was dishonoured with the remarks "insufficient funds". The complainant issued a legal notice to the accused on 21.11.2009 asking him to repay the amount within 15 days of the receipt of the notice. The notice was served upon the accused, but the accused failed to repay the amount despite the receipt of the notice. Hence, the complaint was filed before the learned Trial Court to take action as per law.
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3. The learned Trial Court recorded the preliminary evidence and found sufficient reasons to summon the accused.
.
When the accused appeared before the Court, notice of accusation was put to him for the commission of an offence punishable under Section 138 of the NI Act, to which he pleaded not guilty and claimed to be tried.
4. The complainant examined Surinder Singh (CW1), Akashdeep Jhagta (CW2) and himself (CW3).
5. The accused, in his statement recorded under Section 313 of Cr.P.C., admitted that the complainant was running a Grocery shop and he had cordial relations with the complainant.
He denied that he had purchased any ration from the complainant or issued any cheque in favour of the complainant.
He stated that he had sent a reply to the notice. He claimed that a false case was made against him. He examined Laiq Ram (DW1).
6. Learned Trial Court held that the notice was not issued within 30 days of the receipt of memo of dishonour and, an essential ingredient of Section 138 of NI Act was not satisfied.
Otherwise, cheque carried with it a presumption of consideration which was not rebutted. The cheque was ::: Downloaded on - 29/07/2025 21:23:45 :::CIS 4 ( 2025:HHC:24723 ) dishonoured with endorsement "insufficient funds". The accused admitted the receipt of the notice; however, the notice .
was not served within the statutory period; hence, the accused was acquitted.
7. Being aggrieved from the judgment passed by the learned Trial Court, the complainant filed the present appeal, asserting that the learned Trial Court erred in appreciating the evidence. It was wrongly held that the complaint was filed on the 31st day of the date of receipt of the memo of dishonour. The complaint was filed on the 30th day, and the findings are incorrect; therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside.
8. I have heard Mr. B.S. Chauhan, learned Senior Counsel, assisted by Ms. Aditi Rana, learned Counsel for the appellant/complainant and Ms. Aruna Chauhan, learned counsel for the respondent/accused.
9. Mr. B.S. Chauhan, learned Senior Counsel for the appellant/complainant, submitted that the learned Trial Court erred in holding that the notice was not sent within the ::: Downloaded on - 29/07/2025 21:23:45 :::CIS 5 ( 2025:HHC:24723 ) statutory period of 30 days. The Court has to deduct the day on which the memo was received by the complainant while .
calculating the period of 30 days. He relied upon the judgment of Hon'ble Supreme Court in Rameshchandra Ambalal Joshi Vs. State of Gujarat and another (2014) ACD 554, in support of his submission.
10. Ms. Aruna Chauhan, learned counsel for the respondent/accused, submitted that the notice has to be issued within 30 days and there is no question of exclusion of the day on which the memo was received by the complainant. As per the complainant, the memo was received on 22.10.2009; hence, the notice issued on 21.11.2009 was beyond the period of 30 days.
Learned Trial Court had taken a reasonable view while dismissing the complaint, and this Court should not interfere with the reasonable view of the learned Trial Court while deciding the appeal against the acquittal. Hence, she prayed that the present appeal be dismissed.
11. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
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12. The present appeal has been filed against a judgment of acquittal. It was laid down by the Hon'ble Supreme Court in .
Surendra Singh v. State of Uttarakhand, 2025 SCC OnLine SC 176:
(2025) 5 SCC 433 that the Court can interfere with a judgment of acquittal if it is patently perverse, is based on misreading of evidence, omission to consider the material evidence and no reasonable person would have recorded the acquittal based on the evidence led before the learned Trial Court. It was observed:
"11. Recently, in the case of Babu Sahebagouda Rudragoudar v. State of Karnataka 2024 SCC OnLine SC 4035, a Bench of this Court to which one of us was a Member (B.R. Gavai, J.) had an occasion to consider the legal position with regard to the scope of interference in an appeal against acquittal. It was observed thus: "38. First of all, we would like to reiterate the principles laid down by this Court governing the scope of interference by the High Court in an appeal filed by the State for challenging the acquittal of the accused recorded by the trial court.
39. This Court in Rajesh Prasad v. State of Bihar [Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471: (2022) 2 SCC (Cri) 31] encapsulated the legal position covering the field after considering various earlier judgments and held as below: (SCC pp. 482-83, para 29) "29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: (Chandrappa ::: Downloaded on - 29/07/2025 21:23:45 :::CIS 7 ( 2025:HHC:24723 ) case [Chandrappa v. State of Karnataka, (2007) 4 SCC 415: (2007) 2 SCC (Cri) 325], SCC p. 432, para 42) '42. From the above decisions, in our considered .
view, the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate, and reconsider the evidence upon which the order of acquittal is founded.
r to (2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on the exercise of such power and an appellate court, on the evidence before it, may reach its own conclusion, both on questions of fact and law.
(3) Various expressions, such as "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc., are not intended to curtail the extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with an acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be ::: Downloaded on - 29/07/2025 21:23:45 :::CIS 8 ( 2025:HHC:24723 ) presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused, having secured his acquittal, the .
presumption of his innocence is further reinforced, reaffirmed, and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
40. Further, in H.D. Sundara v. State of Karnataka [H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581: (2023) 3 SCC (Cri) 748. This Court summarised the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378CrPC as follows: (SCC p. 584, para 8) "8. ... 8.1. The acquittal of the accused further strengthens the presumption of innocence. 8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence.
8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record.
8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible."
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41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate court for reversing the judgment of acquittal recorded by the trial court in .
favour of the accused has to be exercised within the four corners of the following principles:
41.1. That the judgment of acquittal suffers from patent perversity;
41.2. That the same is based on a misreading/omission to consider material evidence on record; and 41.3. That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record."
12. It could thus be seen that it is a settled legal position that the interference with the finding of acquittal recorded by the learned trial judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record."
13. A similar view was taken in Bhupatbhai Bachubhai Chavda v. State of Gujarat, 2024 SCC OnLine SC 523, wherein it was observed: -
"6. It is true that while deciding an appeal against acquittal, the Appellate Court has to reappreciate the evidence. After re-appreciating the evidence, the first question that needs to be answered by the Appellate Court is whether the view taken by the Trial Court was a plausible view that could have been taken based on the evidence on record. Perusal of the impugned judgment of the High Court shows that this question has not been adverted to. The Appellate Court can interfere with the order of acquittal only if it is satisfied after reappreciating ::: Downloaded on - 29/07/2025 21:23:45 :::CIS 10 ( 2025:HHC:24723 ) the evidence that the only possible conclusion was that the guilt of the accused had been established beyond a reasonable doubt. The Appellate Court cannot overturn .
the order of acquittal only on the ground that another view is possible. In other words, the judgment of acquittal must be found to be perverse. Unless the Appellate Court records such a finding, no interference can be made with the order of acquittal. The High Court has ignored the well-settled principle that an order of acquittal further strengthens the presumption of innocence of the accused. After having perused the judgment, we find that the High Court has not addressed itself to the main question."
14. The present appeal has to be decided as per the parameters laid down by the Hon'ble Supreme Court.
15. The complainant stated in his examination-in-chief that he presented the cheque to his bank on 09.10.2009, and it was returned after some days because there were insufficient funds in the account of the accused. He issued a notice to the accused. He stated in his cross-examination that the cheque was returned by his bank. He did not remember the number of documents annexed to the cheque. He did not remember the days after which the notice was issued.
16. Thus, the complainant is silent regarding the date on which the return memo was received by him. The return memo (Ex-CW2/A) bears the date of 21.10.2009 and does not mention the date of delivery.
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17. Surinder Singh (CW1) stated that the cheque was sent to H.P. Co-operative Bank Ltd., Chopal, from where it was .
returned after dishonour. He stated in his cross-examination that the cheque was sent to H.P. Co-operative Bank Ltd, Chopal, on 20.10.2009 and was returned on 21.10.2009. The statement is silent regarding the date of delivery of the cheque to the complainant; therefore, there is no evidence that the return memo was received by the complainant on 22.10.2009.
18. Even if it is accepted as correct that the return memo was received on 22.10.2009, the notice was sent on 21.11.2009 as per Para No.5 of the affidavit (Ex-CW1/A); hence, it was sent on the 31st day of the date of receipt of the return memo.
19. It was submitted that the date of receipt of the return memo has to be excluded. This submission is not acceptable. It was laid down by Hon'ble Supreme Court in Sivakumar v.
Natarajan, (2009) 13 SCC 623 that clauses (a) and (b) of the proviso appended to Section 138 of the NI Act use the term "within a period" and the Parliament has not used the word from the date of the receipt of information; therefore, Section 9 of the General Clauses Act, 1897 will not apply. It was observed:-
::: Downloaded on - 29/07/2025 21:23:45 :::CIS 12( 2025:HHC:24723 ) "10. We may, however, at the outset notice that both clauses (a) and (b) of the proviso appended to Section 138 of the Act employed the term "within a period". Whereas .
clause (a) refers to presentation of the cheque to the bank within a period of six months from the date on which it is drawn, clause (b) provides for issuance of notice "to the drawer of the cheque, within thirty days of the receipt of information". The words "within thirty days of the receipt of information" are significant. Indisputably, intimation was received by the respondent from the bank on 3-12- 2003.
11. Parliament advisedly did not use the words "from the date of receipt of information" in Section 138 of the Act. It is also of some significance to notice that in terms of Section 9 of the General Clauses Act, 1897, whereupon reliance has been placed by the High Court, the statute is required to use the word "from" and for the purpose of including the last in a series of days or any other period of time, to use the word "to". The departure made from the provisions of Section 9 of the General Clauses Act by Parliament, therefore, deserves serious consideration.
12. Indisputably, the notice was issued on the 31 st day and not within a period of thirty days from the date of receipt of intimation from the bank. If Section 9 of the General Clauses Act is not applicable, clause (b) of the proviso appended to Section 138 of the Act was required to be complied with by the respondent for the purpose of maintaining a complaint petition against the appellant.
14. Our attention has furthermore been drawn to a decision of the Kerala High Court in K.V. Muhammed Kunhi v. P. Janardhanan [1998 Cri LJ 4330 (Ker)], wherein construing clause (a) of the proviso appended to Section 138 of the Act, a learned Single Judge held: (Cri LJ p. 4331, para 3) "3. ... A comparative study of both the sections in the Act and the General Clauses Act significantly indicates that the period of limitation has to be reckoned from the date on which the cheque or instrument was ::: Downloaded on - 29/07/2025 21:23:45 :::CIS 13 ( 2025:HHC:24723 ) drawn. The words 'from' and 'to' employed in Section 9 of the General Clauses Act are evidently clear that in cases where there is an ambiguity or suspicion with .
reference to the date of commencement of period of limitation in any Act or special enactment, the words 'from' and 'to' employed in Section 9 of the General Clauses Act can be pressed into service." (See also K.C. Nanu v. N. Vijayan [(2007) 1 KLJ 326] .) We are in agreement with the aforementioned view.
20. This judgment was followed in Kamlesh Kumar v.
State of Bihar, (2014) 2 SCC 424, and it was held that when the complainant came to know about the dishonour of the cheque on 10.11.2008 and sent the notice on 17.12.2008, the notice was not sent within 30 days and the complaint was not maintainable. It was observed:-
13. The crucial question is as to which date the complainant received the information about the dishonour of the cheque? As per the appellant, the respondent complainant received the information about the dishonour of the cheque on 10-11-2008.
However, the respondent complainant has disputed the same. However, we would like to add that at the time of arguments, the aforesaid submission of the appellant was not refuted. After the judgment was reserved, the complainant has filed an affidavit alleging therein that he received the bank memo of the bouncing of the cheque on 17-11-2008 and therefore, the legal notice sent on 17-12-2008 is within the period of 30 days from the date of information.
14. Normally, we would have called upon the parties to prove their respective versions before the trial court by leading their evidence. However, in the present ::: Downloaded on - 29/07/2025 21:23:45 :::CIS 14 ( 2025:HHC:24723 ) case, as rightly pointed out by the learned Senior Counsel for the appellant, the complainant has accepted in the complaint itself that he had gone to .
the Bank for encashment of cheque on 10-11-2008 and the cheque was not honoured due to insufficiency of funds, thereby admitting that he came to know about the dishonour of the cheque on 10-11-2008 itself. It is for this reason that the appellant has filed a reply- affidavit stating that this is an afterthought plea, as no material has been filed before the court below to show that the Bank had issued a memo about the return of the cheque, which was received by the complainant on 17-11-2008. The specific averment made in the complaint on this behalf is as under:
"Subsequently, the complainant again went to encash the cheque given by the accused on 10-11- 2008, which again bounced due to unavailability of balance in the accused's account."
It is, thus, clear from the aforesaid averment made by the complainant himself that he had gone to the Bank for encashing the cheque on 10-11-2008 and found that, because of unavailability of sufficient balance in the account, the cheque was bounced. Therefore, it becomes obvious that he had come to know about the same on 10-11-2008 itself. In view of this admission in the complaint about the information having been received by the complainant about the bouncing of the cheque on 10-11-2008 itself, no further enquiry is needed on this aspect.
15. It is, thus, apparent that the complainant received the information about the dishonour of the cheque on 10-11-2008 itself. However, he did not send the legal notice within 30 days thereafter. We, thus, find that the complaint filed by him was not maintainable as it was filed without satisfying all the three conditions laid down in Section 138 of the NI Act as explained in para 12 of the judgment in MSR Leathers [MSR ::: Downloaded on - 29/07/2025 21:23:45 :::CIS 15 ( 2025:HHC:24723 ) Leathers v. S. Palaniappan, (2013) 1 SCC 177: (2013) 1 SCC (Civ) 424: (2013) 2 SCC (Cri) 458], extracted above.
21. It was laid down by Hon'ble Supreme Court in .
Rameshchandra Ambalal Joshi v. State of Gujarat, (2014) 11 SCC 759 : (2014) 4 SCC (Civ) 274 : (2014) 3 SCC (Cri) 542: 2014 SCC OnLine SC 134 that the use of the word from in Section 138(a) requires the exclusion of the first day on which the cheque was drawn and inclusion of the last day within which such act needs to be done. It was observed at page 768: -
"22. Drawing a conclusion from the abovementioned authorities, we are of the opinion that the use of the word "from" in Section 138(a) requires the exclusion of the first day on which the cheque was drawn and inclusion of the last day within which such act needs to be done. In other words, six months would expire one day prior to the date in the corresponding month, and in case no such day falls, the last day of the immediate previous month. Hence, for all purposes, the date on which the cheque was drawn, i.e. 31-12-2005 will be excluded and the period of six months will be reckoned from the next day i.e. from 1- 1-2006; meaning thereby that according to the British calendar, the period of six months will expire at the end of the 30th day of June, 2006. Since the cheque was presented on 30-6-2006, we are of the view that it was presented within the period prescribed."
22. Since the word within has been used and not 'from and to', hence, this judgment will not help the appellant/complainant.
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23. Thus, the learned Trial Court had taken a reasonable view while holding that the notice was not issued within 30 days .
from the receipt of the return memo, and no interference is required with the judgment passed by the learned Trial Court.
24. No other point was urged.
25. In view of the above, the present appeal fails, and the same is dismissed.
26. to A copy of the judgment and the record of the learned Trial Court be sent back forthwith.
(Rakesh Kainthla) Judge 29th July, 2025 (Shamsh Tabrez) ::: Downloaded on - 29/07/2025 21:23:45 :::CIS