Himachal Pradesh High Court
Reserved On: 25.03.2025 vs Yashpal on 24 April, 2025
2025:HHC:11008-DB IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 52 of 2011 Reserved on: 25.03.2025 Date of Decision: 24.04.2025 Ranjit Chand ....Appellant Versus Yashpal ....Respondent Coram Hon'ble Mr Justice Rakesh Kainthla, Judge Whether approved for reporting? No. For the Appellant/State : Mr. Udit Shaurya Kaushik, Advocate.
For the Respondent : Mr. Sumeet Raj Sharma, Advocate.
Rakesh Kainthla, Judge.
The present appeal is directed against the judgment dated 19.11.2010, passed by learned Judicial Magistrate First Class, Barsar, District Hamirpur (learned Trial Court), vide which, the complaint filed by the appellant (complainant before learned Trial Court) was dismissed. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.) 2 2025:HHC:11008-DB
2. Briefly stated, the facts giving rise to the present appeal are that the complainant filed a complaint before the learned Trial Court for the commission of an offence punishable under Section 138 of the Negotiable Istruments Act (in short 'NI Act'). It was asserted that the parties were known to each other. The accused approached the complainant in February 2008 and requested him to advance a sum of ₹ 30,000/-as a loan. The complainant paid the amount to the accused. The accused issued a cheque for a sum of ₹ 30,000/- drawn on UCO Bank, Bijhari to discharge his legal liability. The complainant presented the cheque before his Bank, from where it was sent to the Bank of the accused; however, the cheque was dishonoured with an endorsement 'insufficient funds'. The complainant sent a legal notice to the accused asking him to pay the amount within 15 days of the receipt of the notice. The notice was duly served upon the accused, but the accused failed to pay the amount; hence, the complaint was filed before the Court for taking action against the accused as per the law.
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3. The learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, a 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 three witnesses to prove his case. Ranjeet Singh (CW1) is the complainant, Ashok Thakur (CW2) is the banker of the complainant, and PK Saini (PW3) is the banker of the accused.
5. The accused in his statement recorded under Section 313 of Cr.P.C. denied the prosecution's case in its entirety. He claimed that he had handed over the cheque to Ashok Kumar, son of Amar Nath, in lieu of purchasing the vehicle. He stated that he wanted to lead the defence evidence, but no evidence was led.
6. Learned Trial Court held that the complainant did not specify the date on which the accused approached him to take a loan. He failed to mention the source from which he had taken the money. He stated in his cross-examination that the cheque was handed over on the same day on which the loan 4 2025:HHC:11008-DB was advanced. This falsifies the version of the complainant that the loan was advanced in February 2008, since the cheque was issued on 15.03.2008. The burden was upon the complainant to show that he had advanced the money to the accused, but he failed to discharge this burden. Consequently, the learned Trial Court acquitted the accused.
7. Being aggrieved by the judgment passed by learned Trial Court, the accused has filed the present appeal, asserting that the learned Trial Court erred in acquitting the accused. Provisions of Sections 139 and 118 of the NI Act were not properly appreciated, 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. Udit Shaurya Kaushik, learned counsel for the appellant/complainant and Mr. Sumeet Raj Sharma, learned counsel for the respondent/accused.
9. Mr. Udit Shaurya Kaushik, learned counsel for the appellant/complainant, submitted that the learned Trial Court erred in dismissing the complaint. It was wrongly held that the burden is upon the complainant to prove the source of 5 2025:HHC:11008-DB funds. Learned Trial Court overlooked the presumption contained in Sections 118 and 139 of the NI Act; therefore, he prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. He relied upon the judgment of the Hon'ble Supreme Court in Tedhi Singh v. Narayan Dass Mahant, (2022) 6 SCC 735 in support of his submission.
10. Mr. Sumeet Raj Sharma, learned counsel for the respondent/accused, submitted that the scope of jurisdiction of appeal against the acquittal is limited. This Court should not interfere with the judgment of an acquittal lightly. The learned Trial Court had rightly noticed that there was a discrepancy regarding the advancement of the loan and handing over the cheque, which made the complainant's case suspect. Learned Trial Court was justified in holding that the burden to prove the existence of a legally enforceable debt was upon the complainant. In these circumstances, learned Trial Court had taken a reasonable view, which was possible based on the material on record. Therefore, he prayed that the present appeal be dismissed. He relied upon the judgment of 6 2025:HHC:11008-DB the Hon'ble Supreme Court on Dattatraya v. Sharanappa, (2024) 8 SCC 573, Rajco Steel Enterprises v. Kavita Saraff, (2024) 9 SCC 390 and Upasana Mishra v. Trek Technology India (P) Ltd., 2023 SCC OnLine SC 1740 in support of his submission.
11. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
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 that the Court can interfere with a judgment of acquittal if it is patently perverse, is based on misreading/omission to consider the material evidence and no reasonable person could 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:7
2025:HHC:11008-DB "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 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.
(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 8 2025:HHC:11008-DB 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 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;
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2025:HHC:11008-DB 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."
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."10
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13. The present appeal has to be decided as per the parameters laid down by the Hon'ble Supreme Court.
14. The complainant had not specified the date of advancing the cheque in the complaint filed by him. He only stated in para 3 of the complaint that the accused issued a cheque dated 15.03.2008 in his favour for ₹ 30,000/- drawn on UCO Bank, Bijhari. He stated in his cross-examination that the accused handed over the cheque to him on the date of advancing the loan. He presented the cheque after five months of the advancement of the loan. He presented the cheque after a delay because he kept on demanding the money from the accused.
15. The complainant's cross-examination shows that the cheque was handed over to him on the date of advancing the loan, and it was presented after about five months. Memo of dishonour (Ext. CW3/D) mentions the date 18.08.2008. This fortifies the conclusion of the learned Trial Court that the cheque was handed over in March 2008, and the loan was also advanced in March 2008. This is contrary to the assertion made in the complaint that the loan was advanced in February 11 2025:HHC:11008-DB 2008. In Dattatraya (supra), there was a contradiction regarding the date of issuance of the cheque. The complainant had also not proved his financial capacity. It was held that these circumstances were sufficient to cast a doubt upon the complainant's version. It was observed:
"29. Applying the aforementioned legal position to the present factual matrix, it is apparent that there existed a contradiction in the complaint moved by the appellant as against his cross-examination relatable to the time of presentation of the cheque by the respondent as per the statements of the appellant. This is to the effect that while the appellant claimed the cheque to have been issued at the time of advancing of the loan as a security, however, as per his statement during the cross-examination it was revealed that the same was presented when an alleged demand for repayment of alleged loan amount was raised before the respondent, after a period of six months of advancement. Furthermore, there was no financial capacity or acknowledgment in his income tax returns by the appellant to the effect of having advanced a loan to the respondent. Even further the appellant has not been able to showcase as to when the said loan was advanced in favour of the respondent nor has he been able to explain as to how a cheque issued by the respondent allegedly in favour of Mr Mallikarjun landed in the hands of the instant holder, that is, the appellant.
30. Admittedly, the appellant was able to establish that the signature on the cheque in question was of the respondent and in regard to the decision of this Court in Bir Singh [Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197 :
(2019) 2 SCC (Civ) 309 : (2019) 2 SCC (Cri) 40], a presumption is to ideally arise. However, in the abovereferred context of the factual matrix, the inability of the appellant to put forth the details of the loan 12 2025:HHC:11008-DB advanced, and his contradictory statements, the ratio therein would not impact the present case to the effect of giving rise to the statutory presumption under Section 139 of the NI Act, 1881. The respondent has been able to shift the weight of the scales of justice in his favour through the preponderance of probabilities.
31. The trial court had rightly observed that the appellant was not able to plead even a valid existence of a legally recoverable debt, as the very issuance of the cheque is dubious based on the fallacies and contradictions in the evidence adduced by the parties. Furthermore, the fact that the respondent had inscribed his signature on the agreement drawn on a white paper and not on a stamp paper, as presented by the appellant, creates another set of doubts in the case. Since the accused has been able to cast a shadow of doubt on the case presented by the appellant, he has therefore successfully rebutted the presumption stipulated by Section 139 of the NI Act, 1881."
16. It was held in Rajco Steel Enterprises (supra) that where the amount was not reflected in the account books, the acquittal was justified. It was observed:
13. On the question as to whether the sum involved in the cheques was advanced in discharge of a legally enforceable debt or not, the petitioner has failed to show if any sum was advanced towards financial assistance.
The High Court found that the debt/liability, in discharge of which, according to the petitioner, the cheques were issued, did not reflect in the petitioner's balance sheet. The other partners of the firm did not depose as prosecution witnesses to establish that the cheque amounts were advanced to the accused as financial assistance. Respondent 1-accused has put up a plausible defence as regards the reason for which the petitioner's funds had come to her account. Both the appellate fora, on 13 2025:HHC:11008-DB going through the evidence, did not find the existence of any "enforceable debt or other liability". This strikes at the root of the petitioner's case.
17. Therefore, the learned Trial Court had rightly discarded the complainant's case due to failure to prove the advancement of the loan.
18. There is no dispute with the proposition of law advanced on behalf of the appellant/complainant that a cheque carries with it a presumption of consideration, and the burden is upon the accused to rebut this presumption. However, the accused is not supposed to lead any evidence to rebut the presumption, and he can rebut the presumption by the cross-examination of the complainant's witnesses. In the present case, the discrepancy in the testimony of the complainant regarding the date of advancing the loan and obtaining the cheque will make his testimony suspect, as laid down by the Hon'ble Supreme Court and the learned Trial Court was justified in requiring the complainant to establish his case satisfactorily.
19. Therefore, the learned Trial Court had taken a reasonable view while dismissing the complaint, and this 14 2025:HHC:11008-DB Court will not interfere with it while deciding the appeal against acquittal.
20. Consequently, the present appeal fails, and the same is dismissed.
21. A copy of the judgment and the record of the learned Trial Court be sent forthwith.
(Rakesh Kainthla) Judge 24th April, 2025.
(saurav pathania)