Himachal Pradesh High Court
Reserved On: 20.08.2025 vs Hp Minority Finance Corporation on 27 August, 2025
2025:HHC:28901 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 104 of 2015 .
Reserved on: 20.08.2025 Date of Decision: 27.08.2025.
Ramesh Chand ...Petitioner
Versus
HP Minority Finance Corporation
Coram
r to ...Respondent
Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No For the Petitioner : Mr. N.K. Bhardwaj, Advocate. For the Respondent : Mr. V.S. Rathour, Advocate.
Rakesh Kainthla, Judge The present revision is directed against the judgment dated 02.01.2015, passed by learned Additional Sessions Judge-
II, Shimla, District Shimla, H.P. (learned Appellate Court), vide which the judgment of conviction dated 24.06.2014 and order of sentence dated 11.07.2014, passed by learned Additional Chief Judicial Magistrate, Court No. 2, Shimla, District Shimla, H.P. (learned Trial Court) were upheld. (Parties shall hereinafter be 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 27/08/2025 21:27:24 :::CIS 22025:HHC:28901 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 revision are that the complainant/ corporation filed a complaint before the learned Trial Court against the accused for committing an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (NI Act). It was asserted that the complainant is a body corporate and has been constituted for the upliftment of minorities and persons with disabilities.
The accused approached the complainant/ corporation for advancing a loan of ₹4,00,000/- for purchasing a taxi. The complainant/ corporation advanced the loan vide draft/ cheque No. 000940 dated 11.07.2005 payable at State Bank of Patiala, Mandi, H.P. The accused agreed to repay the loan with interest at the rate of 6% per annum. It was further agreed that in the event of default in payment of the amount, the accused would pay penal interest at the rate of 12% per annum. However, the penal interest was subsequently reduced to 3% by a resolution passed by the Board of Directors. The accused defaulted on the repayment of the loan. He issued a cheque of ₹3,79,300/- in favour of the complainant/ corporation to discharge his liability.
::: Downloaded on - 27/08/2025 21:27:24 :::CIS 32025:HHC:28901 The complainant/ corporation presented the cheque, but it was dishonoured with an endorsement "No account" vide returning .
memo dated 09.03.2012. The intimation of dishonour of cheque was received on 17.03.2012. The complainant/ corporation sent a notice on 16.04.2012 asking the accused to repay the amount.
The notice was duly served upon the accused, but the accused failed to repay the amount. Hence, a complaint was filed against the accused for taking action as per the law.
3. Learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, 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 C.L. Sharma (CW-1) to prove its case.
5. The accused, in his statement recorded under Section 313 of CrPC, admitted that he had applied for a loan of ₹3,40,000/- which was disbursed to him on 12.07.2005. He stated that the cheque was handed over at the time of ::: Downloaded on - 27/08/2025 21:27:24 :::CIS 4 2025:HHC:28901 purchasing the vehicle. He denied the rest of the complainant's case. He examined himself (DW-1).
.
6. Learned Trial Court held that the accused did not dispute the issuance of the cheque. A presumption would arise that the cheque was issued for consideration in discharge of the liability. The burden would shift upon the accused to rebut this presumption. The plea taken by the accused that the blank cheque was issued at the time of purchasing the vehicle will not help him because the accused had admittedly taken a loan, and defaulted in the repayment. The complainant had a right to fill the amount and present the cheque for its realisation. The cheque was dishonoured with an endorsement 'No account'. The memo of dishonour was received on 17.03.2012, and the notice was issued on 16.04.2012. The date of receipt of the intimation was to be excluded as per the judgment of the Hon'ble Supreme Court in Econ Antri Limited vs. ROM Industries Limited, 2014 (11) SCC 769. The accused could have made the payment within 15 days from the date of receipt of the summons from the Court, even if the notice was not received, but he failed to do so. Hence, the accused was convicted of the commission of the offence punishable under Section 138 of the Negotiable Instruments Act ::: Downloaded on - 27/08/2025 21:27:24 :::CIS 5 2025:HHC:28901 and was sentenced to undergo simple imprisonment for six months and to pay a fine of ₹3,90,000/- to the complainant.
.
7. Being aggrieved by the judgment and order passed by the learned Trial Court, the accused filed an appeal, which was decided by the learned Additional Sessions Judge-II, Shimla (Learned Appellate Court). Learned Appellate Court concurred with the findings recorded by the learned Trial Court that the issuance of the cheque was not disputed, and a presumption would arise that the cheque was issued for a consideration to discharge the liability. The accused admitted the taking of loan;
therefore, liability was not disputed. The accused failed to rebut the presumption; therefore, he was rightly convicted and sentenced by the learned Trial Court.
8. Being aggrieved by the judgments and order passed by the learned Courts below, the accused has filed the present revision asserting that the learned Courts below failed to properly appreciate the material placed before them. The cheque was given as security, which was misused by the complainant.
The cheque was dishonoured on 09.03.2012. The legal notice was issued on 16.04.2012, after a period of 30 days. The requirement ::: Downloaded on - 27/08/2025 21:27:24 :::CIS 6 2025:HHC:28901 of issuing the notice within 30 days from the date of the receipt of intimation was not fulfilled. Therefore, it was prayed that the .
present revision be allowed and the judgments and order passed by the learned Courts below be set aside.
9. I have heard Mr. N.K. Bhardwaj, learned counsel for the petitioner, and Mr. V.S. Rathore, Advocate, learned counsel for the respondent.
10. Mr. N.K. Bhardwaj, learned counsel for the petitioner, submitted that the intimation of dishonour of the cheque was received on 17.03.2012. The notice was issued on 16.04.2012 beyond the period of 30 days prescribed under Section 138 of the NI Act. The requirement for the commission of an offence punishable under Section 138 of the NI Act was not satisfied.
Learned Trial Court erred in holding that the date on which the intimation of dishonour was received was to be excluded. He prayed that the present petition be allowed and the judgments and order passed by learned Courts below be set aside. He relied upon the judgment of the Hon'ble Supreme Court in Sivakumar vs. Natarajan, (2009) 13SCC 623, in support of his submission.
::: Downloaded on - 27/08/2025 21:27:24 :::CIS 72025:HHC:28901
11. Mr. V.S. Rathour, learned counsel for the respondent/ complainant, submitted that the learned Trial Court had rightly .
held that the day on which intimation of dishonour was received was to be excluded while calculating the period of limitation. He relied upon the judgment of the Hon'ble Supreme Court in Econ Antri (supra) in support of his submission.
12. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
13. It was laid down by the Hon'ble Supreme Court in Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204:
(2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that the revisional court is not an appellate jurisdiction and it can only rectify the patent defect, errors of jurisdiction or the law. It was observed at page 207: -
"10. Before adverting to the merits of the contentions, at the outset, it is apt to mention that there are concurrent findings of conviction arrived at by two courts after a detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction like to the appellate court, and the scope of interference in revision is extremely narrow. Section 397 of the Criminal Procedure Code (in short "CrPC") vests jurisdiction to satisfy itself or himself as to the correctness, legality or propriety of any finding, sentence ::: Downloaded on - 27/08/2025 21:27:24 :::CIS 8 2025:HHC:28901 or order, recorded or passed, and as to the regularity of any proceedings of such inferior court. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error .
which is to be determined on the merits of individual cases. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings.
14. This position was reiterated in State of Gujarat v.
observed:
r to Dilipsinh Kishorsinh Rao, 2023 SCC OnLine SC 1294, wherein it was "13. The power and jurisdiction of the Higher Court under Section 397 Cr. P.C., which vests the court with the power to call for and examine records of an inferior court, is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept into such proceedings. It would be apposite to refer to the judgment of this court in Amit Kapoor v. Ramesh Chandra, (2012) 9 SCC 460, where the scope of Section 397 has been considered and succinctly explained as under:
"12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well- founded error, and it may not be appropriate for the court to scrutinise the orders, which, upon the face of it, bear a token of careful consideration and appear to be in accordance with the law. If one looks into the various ::: Downloaded on - 27/08/2025 21:27:24 :::CIS 9 2025:HHC:28901 judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based .
on no evidence, material evidence is ignored, or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes but are merely indicative. Each case would have to be determined on its own merits.
13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in the exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even the framing of a charge is a much-advanced stage in the proceedings under the CrPC."
15. The present revision has to be decided as per the parameters laid down by the Hon'ble Supreme Court.
16. It was specifically asserted in Para No. 4 of the complaint that the intimation of the dishonour of the cheque was received on 17.03.2012. It was mentioned in Para No. 5 of the complaint that a legal notice was sent through registered post on 16.04.2012. C.L. Sharma (CW-1) also stated in his affidavit that the intimation of dishonour of the cheque was received on ::: Downloaded on - 27/08/2025 21:27:24 :::CIS 10 2025:HHC:28901 17.03.2012 and entered in the office on 17.03.2012. The complainant issued a legal notice on 16.04.2012. Therefore, the .
dates of receipt of the memo of dishonour and the issuance of notice are not in dispute.
17. 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:-
"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 ::: Downloaded on - 27/08/2025 21:27:24 :::CIS 11 2025:HHC:28901 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 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.
18. 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 ::: Downloaded on - 27/08/2025 21:27:24 :::CIS 12 2025:HHC:28901 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 the arguments, the aforesaid submission of the appellant was not refuted. After the judgment was reserved, the complainant 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 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- ::: Downloaded on - 27/08/2025 21:27:24 :::CIS 13 2025:HHC:28901 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 Leathers v. S. Palaniappan, (2013) 1 SCC 177: (2013) 1 SCC (Civ) 424: (2013) 2 SCC (Cri) 458], extracted above.
19. This judgment was followed by the Delhi High Court in Deepak Nagar v. State, 2024 SCC OnLine Del 2053, and it was held that when the intimation was received on 16.03.2022 and a legal notice was issued on 16.04.2022, the same was beyond the period of limitation and no complaint is maintainable in such a case. It was observed:-
10. A Co-ordinate Bench of this Court in Dheeraj Jain v. State 2012 SCC OnLine Del 1687, held as under:--::: Downloaded on - 27/08/2025 21:27:24 :::CIS 14
2025:HHC:28901 "xxx
8. A perusal of Clause (b) to proviso to the Section clearly states that nothing contained in the section .
shall apply unless the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the amount of cheque by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of the information by him from the bank regarding return of the cheque as unpaid. It may be noted that in the present case, admittedly, as per the complaint, affidavit and legal notice, Respondent No. 2 came to know about the dishonour of the cheque on the 10th of July, 2010. The demand made by Respondent No. 2 was beyond the period of 30 days, and now Respondent No. 2 cannot agitate that he be permitted to lead evidence to show that he received the knowledge of dishonour of the cheque on 12th July 2012, which was not the case even before the learned Trial Court.
xxx"
11. Even this Court in Amit Kumar Mishra v. The State (Govt. of NCT of Delhi) 2012 SCC OnLine Del 1687 held that in case a legal notice is issued beyond the period of 30 days, the complaint is not maintainable.
12. So far as aspect of computation of statutory period is concerned, reference may be made to the decisions of the Supreme Court in Econ Antri Ltd. v. Rom Industries Ltd. (2014) 11 SCC 769 and Rameshchandra Ambalal Joshi v. State of Gujarat (2014) 11 SCC 759 as well as this Court in Texco v. Bats Apparels Ltd. 2018 SCC OnLine Del 7724, Rayapati Power Generation Pvt. Ltd. v. Indian Renewable Energy Agency Ltd. (IREDA) 2022 SCC OnLine Del 295 and Simranpal Singh Suri v. State (2021) 1 HCC (Del) 183 In all these cases while dealing with the various provisions of Section 138 and 142 NI Act, it has been held that the date on which the cause of action ::: Downloaded on - 27/08/2025 21:27:24 :::CIS 15 2025:HHC:28901 arises, would be excluded while computing the statutory period mentioned in the various clauses of Section 138 NI and for Section 142.
.
13. Concededly, as per the allegations in the complaint, respondent No. 2 had received information about the dishonour of the cheque on 16.03.2022, whereafter, he had telephonically informed the petitioner about the said dishonour. It is also not disputed that the legal notice was issued on 16.04.2022, and upon failure to repay, the present complaint came to be filed.
14. In Texco (Supra), this Court observed:--
"xxx
8. The questions that arise for consideration in this case are: whether Section 9 of the General Clauses Act, 1897, is applicable to the statutory notice under Section 138 of the Act. & whether the day on which the information is received by the complainant from the bank that the cheque has been dishonoured is to be included or excluded while computing the 30-day period prescribed for issuing the statutory notice.
xxx
12. Seen from that perspective, the date on which the petitioner received the information of the dishonour of the cheque (i.e. 23.12.2006) is to be excluded for the purposes of computing the period of 30 days available under the Act for issuance of notice. On excluding the date 23.12.2006 from consideration, it is seen that the notice issued on 22.01.2007 has been issued on the 30th day, which would bring the said notice within the period prescribed.
xxx"
15. Further, this Court in Rayapati Power Generation Pvt. Ltd. (Supra) observed:--
"xxx ::: Downloaded on - 27/08/2025 21:27:24 :::CIS 16 2025:HHC:28901
14. In the present case, the primary issue raised by learned counsel for the petitioners during the course of submissions is that the legal demand notices were not .
issued by the complainant Company within 30 days of the receipt of information regarding dishonour of the cheques, i.e., from the date of the return memos, and thus the complaints are not maintainable. On the other hand, the complainant Company maintains that it was informed of the dishonour of the cheques in question only when its Bank sent the aforesaid return statements, and the legal demand notices were issued within 30 days thereafter.
xxx
21. The legal position, as culled out from the judicial dicta referred to hereinabove, is that while computing the limitation period of 30 days prescribed under Section 138(b) N.I. Act for issuance of a valid legal notice, the day on which intimation is received by the complainant from the bank that the cheque in question has been returned unpaid has to be excluded.
xxx"
16. Applying the abovementioned legal position to the present matter, it can be seen that admittedly, while the information was received on 16.03.2022, the legal notice came to be issued on 16.04.2022. Even if the first day, i.e. 16.03.2022, is excluded in computing the statutory period, the legal notice came to be issued on the 31 st day, i.e. beyond the statutory period provided under Section 138(b) of the NI Act."
20. Econ Antri (supra) dealt with Section 142(b) of the NI Act, whereas Sivakumar (supra) specifically dealt with Section 138(b) and excluded the application of Section 9 of the General ::: Downloaded on - 27/08/2025 21:27:24 :::CIS 17 2025:HHC:28901 Clauses Act. Therefore, reliance cannot be placed upon the judgment of Econ Antri (supra).
.
21. Learned Trial Court held that a person who does not receive the notice can make a payment within 15 days of the receipt of the summons. In the present case, the accused never claimed that he had not received the notice; rather, he claimed that the notice was not sent within the period of limitation.
Therefore, no advantage can be derived from the proposition of law noticed by the learned Trial Court.
22. Therefore, the learned Trial Court erred in calculating the period of limitation by applying the judgment of Econ Antri (supra) and omitting to notice the judgment of the Hon'ble Supreme Court in Shivakumar (supra), which directly covered the matter. The complaint filed by the complainant did not fulfil the essential requirements of Section 138 of the NI Act;
no cognisance could have been taken of the same, and no conviction could have been recorded.
23. In view of the above, the judgments and order passed by the learned Courts below are not sustainable. Hence, the same are ordered to be set aside. The petitioner/ accused is acquitted ::: Downloaded on - 27/08/2025 21:27:24 :::CIS 18 2025:HHC:28901 of the commission of an offence punishable under Section 138 of the NI Act. The compensation amount deposited by the accused .
be refunded to him in case no appeal is preferred, and in case of appeal, the same be dealt with as per the judgment of the Hon'ble Apex Court.
24. In view of the provisions of Section 437-A of the Code of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha Sanhita, 2023) the petitioner is directed to furnish bail bonds in the sum of ₹25,000/- with one surety in the like amount to the satisfaction of the learned Trial Court within four weeks, which shall be effective for six months with stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of the leave, the petitioner on receipt of notice thereof, shall appear before the Hon'ble Supreme Court.
25. A copy of this judgment, along with the records of the learned Courts below, be sent back forthwith . Pending applications, if any, also stand disposed of.
(Rakesh Kainthla) Judge 27th August 2025 (Anurag) ::: Downloaded on - 27/08/2025 21:27:24 :::CIS