Himachal Pradesh High Court
Date Of Decision: 12.03.2026 vs Kamla Devi on 12 March, 2026
Author: Sandeep Sharma
Bench: Sandeep Sharma
2026:HHC:6981
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No.692 of 2025
Date of Decision: 12.03.2026
__________________________________________________________________________
.
Vipin Kumar .........Petitioner
Versus
Kamla Devi .......Respondent
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?
For the Petitioner: Ms. Shine Sehgal, Advocate, vice Mr. Mohar
of
Singh, Advocate.
For the Respondent: None.
__________________________________________________________________________
Sandeep Sharma, J. (Oral)
rt Instant criminal revision petition filed under Section 438 of the BNSS, lays challenge to judgment dated 01.11.2025, passed by the learned Additional Sessions Judge, Rampur Bushahr, District Shimla, Himachal Pradesh, in Criminal Appeal No.48 of 2025, titled Vipin Kumar Vs. Kamla Devi, affirming judgment of conviction and order of sentence dated 17.04.2025, passed by the learned Additional Chief Judicial Magistrate, Rampur Bushahr, District Shimla, H.P., whereby 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 six months and pay compensation to the tune of Rs.4,50,000/- to the respondent-complainant.
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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, alleging therein that in the year 2019, accused contacted her and stated that he intends to develop his business of sale and purchase of plots for which he is in dire need of money. Complainant alleged that accused of requested to lend sum of Rs.3,00,000/- as friendly loan. Complainant gave aforesaid amount to the accused, who subsequently with a view to discharge his liability issued Cheque bearing No.167572, dated 25.08.2021, rt amounting to Rs.3,00,000/-, however, on its presentation to the Bank concerned, the same was dishonoured vide returning memo Ex.C2/CW1 with the remarks "Funds Insufficient". After receipt of aforesaid return memo, complainant served accused with a legal notice (Ex.C3/CW1) through registered post, 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 Additional Chief Judicial Magistrate, Rampur Bushahr, District Shimla, H.P.
3. Learned trial Court on the basis of material adduced on record by the respective parties, vide judgment/order dated 17.04.2025, held the petitioner-accused guilty of having committed offence under Section 138 of ::: Downloaded on - 16/03/2026 20:31:16 :::CIS 2026:HHC:6981 3 the Act and accordingly, convicted and sentenced him, as per the description given hereinabove.
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4. Though, at the first instance, accused preferred an appeal in the Court of learned Additional Sessions Judge, Rampur Bushahr, District Shimla, Himachal Pradesh, however, same was dismissed vide judgment dated 01.11.2025. In the aforesaid background, petitioner-accused has of approached this Court by way of instant proceedings, seeking therein his acquittal after setting aside the judgments of conviction recorded by the Courts below. rt
5. Vide order dated 11.12.2025, Co-ordinate Bench of this Court stayed the substantive sentence imposed by the learned Court below, subject to petitioner/accused depositing 30% compensation amount and furnishing personal bond in the sum of Rs.50,000/-, however, fact remains that despite repeated request for extension of time, aforesaid order was never complied with.
6. On 26.02.2026, this Court granted three weeks' time to the petitioner to comply with the order dated 11.12.2025 passed in Cr.MP No.5498 of 2025, specifically observing that in case needful is not done, interim protection granted vide aforesaid order shall come to an end and respondent would be at liberty to get the judgment of learned trial Court executed in accordance with law.
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7. Today during proceedings of the case, learned counsel representing the petitioner fairly stated that since petitioner/accused is not .
coming forward to impart instructions and he has not complied with the order dated 11.12.2025, this Court may proceed to decide the petition on its own merits.
8. Having heard learned counsel for the parties and perused of material adduced on record, vis-a-vis reasoning assigned in the impugned judgments, this Court sees no reason to agree with Ms. Shine Sehgal, learned counsel representing the petitioner that Courts below have fallen in rt 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.
9. In the instant case, there is no specific denial, if any, on the part of the accused with regard to his having issued Cheques as well as his signatures thereupon. Complainant while examining himself as CW-1, tendered evidence by way of affidavit EX.CW1/A, whereby she successfully proved the contents of the complaint. She deposed that she had given sum of Rs.3,00,000/- to the accused as friendly loan, who with a view to discharge his lawful liability, issued Cheque Ex.C1/CW1, but the same was dishonoured on account of 'insufficient funds' vide return memo Ex.C2/CW1. She also proved that she served accused with legal notice Ex.C3/CW1, which was duly served upon him, as is evident from the postal ::: Downloaded on - 16/03/2026 20:31:16 :::CIS 2026:HHC:6981 5 receipt Ex.C4/CW1 and Ex.C5/CW1, but he failed to pay the amount. If the cross-examination conducted upon complainant is perused in its entirety, .
it cannot be said that accused was able to extract anything contrary to what this witness stated in her examination-in-chief.
10. In the case at hand, accused in his statement recorded under Section 313 Cr.P.C. though denied the case of the complainant, but despite of opportunity, he failed to lead evidence. Otherwise also, pattern of cross-
examination conducted upon the petitioner clearly suggests that cheque in question was issued by the petitioner and same bears his signature. During rt cross-examination, complainant stated that she is posted as Peon in private school and she earns Rs.5,000/- per month. While stating that she knows accused for 20-30 years, she deposed that accused used to sell and purchase plots and she had given Rs.3,00,000/- to him in the year 2019.
She specifically denied that she had misused the cheque issued by the accused. By putting suggestion with regard to misuse of cheque, accused admitted factum with regard to his having issued the Cheque. Though with a view to probabilise his defence, argument came to be raised at the behest of petitioner/accused that accused did not issue cheque to fulfill any legal liability, but as has been observed hereinabove, accused by way of putting suggestion to the complainant in her cross-examination to the effect that cheque issued by accused was misused, himself admitted factum with regard to his having issued the cheque. Since in the case at hand, factum ::: Downloaded on - 16/03/2026 20:31:16 :::CIS 2026:HHC:6981 6 of issuance of cheque as well as his signatures thereupon never came to be refuted at the behest of accused, no illegality can be said to have been .
committed by both the 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.
11. No doubt, aforesaid presumption is rebuttable, but to rebut of 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, neither rt anything could be pointed out from the pleadings nor from the evidence adduced on record by the accused that Cheques in question were not issued towards discharge of lawful liability. Interestingly, accused in his statement recorded under Section 313 Cr.P.C. stated that he has no liability, as money was taken by some third person through him. Though by way of making afore statement, an attempt came to be made at the behest of respondent to prove that Cheque was issued as a security cheque and same has been misused, however, such defence, if any, was never probabilised by leading cogent and convincing evidence.
12. 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.
::: Downloaded on - 16/03/2026 20:31:16 :::CIS2026:HHC:6981 7 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 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 of 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 rt139 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 ::: Downloaded on - 16/03/2026 20:31:16 :::CIS 2026:HHC:6981 8 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 of 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 rteven 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."
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 ::: Downloaded on - 16/03/2026 20:31:16 :::CIS 2026:HHC:6981 9 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.
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On such presentation, if the same is dishonoured, the 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 of record with regard to issuance of security cheque. The Negotiable Instruments Act does not per se carve out an exception in respect of a rt "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 ::: Downloaded on - 16/03/2026 20:31:16 :::CIS 2026:HHC:6981 10 Courts below on the basis of pleadings as well as evidence adduced on record by the respective parties.
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16. Moreover, this Court has a very limited jurisdiction under Section 438 of the BNSS 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 of Court in case "State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri" (1999) 2 Supreme Court Cases 452, wherein it has been held as under:- rt"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.
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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 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 of 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 rt 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 forthwith to serve the sentence as awarded by the learned trial Court, if not already served. Bail bonds, if any, of the ::: Downloaded on - 16/03/2026 20:31:16 :::CIS 2026:HHC:6981 12 petitioner are cancelled accordingly. Interim order dated 11.12.2025 is hereby vacated.
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Pending applications, if any, also stand disposed of.
(Sandeep Sharma), Judge March 12, 2026 (Rajeev Raturi) of rt ::: Downloaded on - 16/03/2026 20:31:16 :::CIS