Himachal Pradesh High Court
Reserved On: 16.06.2025 vs Rakesh Kumar & Another on 8 July, 2025
2025:HHC:21735 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No.559 of 2024 .
Reserved on: 16.06.2025
Date of Decision: 08.07.2025
Rakesh Kumar ...Petitioner
Versus
Rakesh Kumar & another
...Respondents
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No.
For the Petitioner : Ms. Rita Goswami, Senior Advocate
with Ms. Komal Chaudhary,
Advocate.
For the Respondents : Mr. Narender Guleria, Advocate, for
respondent No.1.
Mr. Jitender K. Sharma, Additional
Advocate General, for respondent
No.2/State.
Rakesh Kainthla, Judge
The present revision is directed against the judgment dated 02.07.2024 passed by learned Sessions Judge Mandi, District Mandi, H.P. (learned Appellate Court) vide which the 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 08/07/2025 21:27:53 :::CISPage |2 2025:HHC:21735 judgment of conviction and order of sentence dated 19.01.2024, passed by learned Judicial Magistrate, First Class, Court No.2 .
Mandi, District Mandi, H.P. (learned Trial Court) were upheld.
(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 petition are that the complainant filed a complaint against the accused before the learned Trial Court 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 and the accused had friendly relations with each other. The accused borrowed a sum of ₹1,00,000/- from the complainant for his domestic needs, and he assured the complainant to return the money within a short period. The complainant demanded the money in the month of May, 2019, and the accused issued a cheque of ₹1,00,000/- to discharge his liability. The complainant presented the cheque for its collection through his banker, i.e. Himachal Pradesh Gramin Bank, Gagal Branch; however, the cheque was dishonoured with an endorsement 'insufficient funds'. The complainant served a notice upon the accused, but the accused failed to pay the money.
::: Downloaded on - 08/07/2025 21:27:53 :::CISPage |3 2025:HHC:21735 Hence, the complaint was filed against the accused for taking action as per the law.
.
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 himself (CW1) to prove his case.
5. The accused, in his statement recorded under Section 313 of CrPC admitted his signatures on the cheque. He admitted that the notice was served upon him. He stated that the complainant had told him that he (the complainant) would not file any complaint. The accused claimed that he was innocent and not liable to pay money to the complainant. No defence was sought to be adduced by the accused.
6. Learned Trial Court held that the signatures on the cheque were not disputed; therefore, a presumption arises under Section 118(a) and 139 of the NI Act that the cheque was issued for consideration in discharge of the legal liability. The accused failed ::: Downloaded on - 08/07/2025 21:27:53 :::CIS Page |4 2025:HHC:21735 to rebut this presumption by leading any evidence. The cheque was dishonoured with an endorsement 'insufficient funds'. The .
notice was served upon the accused, but he failed to pay any money. Therefore, the learned Trial Court convicted the accused of the commission of an offence punishable under Section 138 of the NI Act, and sentenced him to undergo simple imprisonment for one year, pay compensation of1,50,000/-to the complainant and in default of payment of compensation, to undergo further simple imprisonment for one month.
7. Being aggrieved from the judgment and order passed by the learned Trial Court, the accused filed an appeal, which was decided by the learned Appellate Court. Learned Appellate Court concurred with the findings recorded by the learned Trial Court that the cheque was issued in discharge of the legal liability, the accused had failed to discharge the burden placed upon him. The issuance of a blank signed cheque will not absolve him of his legal liability. The cheque was dishonoured with an endorsement 'insufficient funds'. The accused failed to pay the money despite receipt of a valid notice of demand. The accused was rightly convicted and sentenced by the learned Trial Court. Hence, the appeal was dismissed.
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8. Being aggrieved from the judgments and order passed by the learned Courts below, the accused has filed the present .
revision asserting that the learned Courts below misinterpreted and misappreciated the evidence led by the parties. The cheque was misused by the complainant. The initial burden lies upon the complainant to show the circumstances in which the cheque was issued in his favour. The complainant admitted that ₹5,99,000/-
was received between
r 15.05.2018 to 04.05.2022 from the
petitioner's father. The presumption contained in Section 138 of the NI Act was duly rebutted. Therefore, it was prayed that the present revision petition be allowed and the judgments and order passed by the learned Courts below be set aside.
9. An application under Section 432 of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 (Cr.MP No. 3576 of 2024) was filed for placing on record bank receipts, affidavit of Inder Singh and summoning of the witnesses. It was asserted that the complainant had admitted the receipt of ₹5,99,000/- in his cross-
examination. Statement of account of Inder Singh and his affidavit is required to be placed on record. These are necessary to determine the real controversy and bring the truth before the ::: Downloaded on - 08/07/2025 21:27:53 :::CIS Page |6 2025:HHC:21735 Court. Therefore, it was prayed that the documents be taken on record and the intended witnesses be summoned.
.
10. The application is opposed by filing a reply making preliminary submissions regarding the lack of maintainability, and the application having been filed without any justification for delaying the proceedings. The contents of the application were denied on merits. It was asserted that the complainant had admitted the receipt of payment from the father of the accused. He had clarified that the transaction with the accused and his father was different. Therefore, it was prayed that the present be dismissed.
11. I have heard Ms. Rita Goswami, learned Senior Counsel assisted by Ms. Komal Chaudhary, learned counsel for the petitioner, Mr. Narender Guleria, learned counsel for respondent No.1 and Mr. Jitender K. Sharma, Additional Advocate General for respondent No.2/State.
12. Ms. Rita Goswami, learned Senior Counsel for the accused/petitioner, submitted that the learned Courts below erred in convicting and sentencing the accused. The accused categorically stated that the payment was made by his father, ::: Downloaded on - 08/07/2025 21:27:53 :::CIS Page |7 2025:HHC:21735 which was acknowledged by the complainant in his cross-
examination. The documents could not be produced, and the .
father of the accused could not be examined before the learned Trial Court, as the accused remained under the impression that the admitted facts need not be proved. The production of the documents is essential for the just decision of the case; therefore, she prayed that the present revision be allowed and the documents be taken on record.
13. Mr. Narender Guleria, learned counsel for respondent No.1 /complainant, submitted that the payment made by the father of the accused is not disputed and was admitted by the complainant in his cross-examination. He clarified that the transactions with the accused and his father were different. The application was filed to prolong the decision. Learned Courts below had rightly appreciated the material on record. No interference is required with the judgments and order passed by the learned Courts below, hence, he prayed that the present appeal and application be dismissed.
14. Mr. Jitender K. Sharma, learned Additional Advocate General, for the respondent No.2/Stated supported the judgments ::: Downloaded on - 08/07/2025 21:27:53 :::CIS Page |8 2025:HHC:21735 and order passed by the learned Courts below. He prayed that the present appeal and application be dismissed .
15. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
16. 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 a revisional court is not an appellate court 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 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 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.::: Downloaded on - 08/07/2025 21:27:53 :::CIS
Page |9 2025:HHC:21735
17. This position was reiterated in State of Gujarat v.
Dilipsinh Kishorsinh Rao, (2023) 17 SCC 688: 2023 SCC OnLine SC .
1294, wherein it was observed at page 695:
14. The power and jurisdiction of the Higher Court under Section 397CrPC, 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 in such proceedings.
15. It would be apposite to refer to the judgment of this Court in Amit Kapoor v. Ramesh Chander [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460: (2012) 4 SCC (Civ) 687: (2013) 1 SCC (Cri) 986], where scope of Section 397 has been considered and succinctly explained as under:
(SCC p. 475, paras 12-13) "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 law. If one looks into the various 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 ::: Downloaded on - 08/07/2025 21:27:53 :::CIS P a g e | 10 2025:HHC:21735 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 framing of charge is a much-advanced stage in the proceedings under CrPC."
16. This Court in the aforesaid judgment in Amit Kapoor case [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 :
(2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986] has also laid down principles to be considered for exercise of jurisdiction under Section 397 particularly in the context of prayer for quashing of charge framed under Section 228CrPC is sought for as under : (Amit Kapoor case [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986], SCC pp. 482-83, para 27) "27. Having discussed the scope of jurisdiction under these two provisions, i.e. Section 397 and Section 482 of the Code, and the fine line of jurisdictional distinction, it will now be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but inherently impossible to state such principles with precision. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section ::: Downloaded on - 08/07/2025 21:27:53 :::CIS P a g e | 11 2025:HHC:21735 397 or Section 482 of the Code or together, as the case may be:
27.1. Though there are no limits to the powers of the .
Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code, should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.
27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion, and where the basic ingredients of a criminal offence are not satisfied, then the Court may interfere. 27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.
*** 27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
*** 27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to ::: Downloaded on - 08/07/2025 21:27:53 :::CIS P a g e | 12 2025:HHC:21735 permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records, .
but is an opinion formed prima facie."
17. The revisional court cannot sit as an appellate court and start appreciating the evidence by finding out inconsistencies in the statement of witnesses, and it is not legally permissible. The High Courts ought to be cognizant of the fact that the trial court was dealing with an application for discharge.
18. It was held in Kishan Rao v. Shankargouda, (2018) 8 SCC 165: (2018) 3 SCC (Cri) 544: (2018) 4 SCC (Civ) 37: 2018 SCC OnLine SC 651 that it is impermissible for the High Court to reappreciate the evidence and come to its conclusions in the absence of any perversity. It was observed on page 169:
"12. This Court has time and again examined the scope of Sections 397/401 CrPC and the ground for exercising the revisional jurisdiction by the High Court. In State of Kerala v. Puttumana Illath Jathavedan Namboodiri [State of Kerala v. Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC 452: 1999 SCC (Cri) 275], while considering the scope of the revisional jurisdiction of the High Court, this Court has laid down the following: (SCC pp. 454-55, para 5) "5. ... In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings to satisfy 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 a 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 ::: Downloaded on - 08/07/2025 21:27:53 :::CIS P a g e | 13 2025:HHC:21735 would not be appropriate for the High Court to reappreciate the evidence and come to its conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions .
Judge in appeal unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to a gross miscarriage of justice. On scrutinising the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation in concluding that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence. ..."
13. Another judgment which has also been referred to and relied on by the High Court is the judgment of this Court in Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke [Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke, (2015) 3 SCC 123: (2015) 2 SCC (Cri) 19]. This Court held that the High Court, in the exercise of revisional jurisdiction, shall not interfere with the order of the Magistrate unless it is perverse or wholly unreasonable or there is non-consideration of any relevant material, the order cannot be set aside merely on the ground that another view is possible. The following has been laid down in para 14: (SCC p. 135) "14. ... Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law ::: Downloaded on - 08/07/2025 21:27:53 :::CIS P a g e | 14 2025:HHC:21735 or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the .
courts may not interfere with the decision in exercise of their revisional jurisdiction."
14. In the above case, also conviction of the accused was recorded, and the High Court set aside [Dattatray Gulabrao Phalke v. Sanjaysinh Ramrao Chavan, 2013 SCC OnLine Bom 1753] the order of conviction by substituting its view. This Court set aside the High Court's order holding that the High Court exceeded its jurisdiction in substituting its views, and that too without any legal basis.
19. This position was reiterated in Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197: (2019) 2 SCC (Cri) 40: (2019) 2 SCC (Civ) 309: 2019 SCC OnLine SC 13, wherein it was observed at page 205:
"16. It is well settled that in the exercise of revisional jurisdiction under Section 482 of the Criminal Procedure Code, the High Court does not, in the absence of perversity, upset concurrent factual findings. It is not for the Revisional Court to re-analyse and re-interpret the evidence on record.
17. As held by this Court in Southern Sales & Services v. Sauermilch Design and Handels GmbH [Southern Sales & Services v. Sauermilch Design and Handels GmbH, (2008) 14 SCC 457], it is a well-established principle of law that the Revisional Court will not interfere even if a wrong order is passed by a court having jurisdiction, in the absence of a jurisdictional error. The answer to the first question is, therefore, in the negative."
20. The present revision has to be decided as per the parameters laid down by the Hon'ble Supreme Court.
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21. The accused filed an application under Section 432 of the Bhartiya Nagrik Suraksha Sanhita (BNSS) (corresponding to .
section 391 of CrPC) for leading additional evidence. It was laid down by the Hon'ble Supreme Court in State of Rajasthan v.
Asharam, 2023 SCC OnLine SC 423, that Sections 311 and 391 of Cr. P.C. deal with the power of the Court to take additional evidence. Section 311 of Cr.P.C. deals with the trial, while Section 391 deals with the appeal. The learned r Appellate Court can examine the evidence, but it does not possess the wide powers conferred upon the learned Trial Court. It was observed:
"6. Both Sections 311 and 391 of the Cr. P.C. relate to the power of the court to take additional evidence; the former at the stage of trial and before the judgment is pronounced; and the latter at the appellate stage after judgment by the trial court has been pronounced. It may not be totally correct to state that the same considerations would apply to both situations, as there is a difference in the stages. Section 311 of the Cr. P.C. consists of two parts; the first gives power to the court to summon any witness at any stage of inquiry, trial or other proceedings, whether the person is listed as a witness, or is in attendance though not summoned as a witness. Secondly, the trial court has the power to recall and re-examine any person already examined if his evidence appears to be essential to the just decision of the case. On the other hand, the discretion under Section 391 of the Cr. P.C. should be read as somewhat more restricted in comparison to Section 311 of the Cr. P.C., as the appellate court is dealing with an appeal, after the trial court has come to a conclusion with regard to the guilt or otherwise of the person being prosecuted. The appellate court can ::: Downloaded on - 08/07/2025 21:27:53 :::CIS P a g e | 16 2025:HHC:21735 examine the evidence in depth and detail, yet it does not possess all the powers of the trial court, as it deals with cases wherein the decision has already been pronounced."
.
22. It was laid down in Sukhjeet Singh v. State of U.P., (2019) 16 SCC 712: (2020) 2 SCC (Cri) 434: 2019 SCC OnLine SC 72, that the additional evidence can be taken by the Appellate Court if the evidence is necessary for just determination of the case, however, Section 391 cannot be used for retrial. The order should not be made if the party had sufficient opportunities and had not availed them. It was observed at page 721:
"22. Chapter XXIX of the Code of Criminal Procedure, 1973 deals with "Appeals". Section 391 CrPC empowers the appellate court to take further evidence or direct it to be taken. Section 391 is as follows:
"391. The appellate court may take further evidence or direct it to be taken.--(1) In dealing with any appeal under this Chapter, the appellate court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the appellate court is a High Court, by a Court of Session or a Magistrate.
(2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the appellate court, and such court shall thereupon proceed to dispose of the appeal.
(3) The accused or his pleader shall have the right to be present when the additional evidence is taken.::: Downloaded on - 08/07/2025 21:27:53 :::CIS
P a g e | 17 2025:HHC:21735 (4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry."
.
23. The key words in Section 391(1) are "if it thinks additional evidence to be necessary". The word "necessary" used in Section 391(1) is to mean necessary for deciding the appeal. The appeal has been filed by the accused, who have been convicted. The powers of the appellate court are contained in Section 386. In an appeal from a conviction, an appellate court can exercise power under Section 386(b), which is to the following effect:
"386. (b) In an appeal from a conviction--
(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a court of competent jurisdiction subordinate to such appellate court or committed for trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same;"
24. Power to take additional evidence under Section 391 is, thus, with an object to appropriately decide the appeal by the appellate court to secure ends of justice. The scope and ambit of Section 391 CrPC has come up for consideration before this Court in Rajeswar Prasad Misra v. State of W.B. [Rajeswar Prasad Misra v. State of W.B., AIR 1965 SC 1887:
(1965) 2 Cri LJ 817] Hidayatullah, J., speaking for the Bench held that a wide discretion is conferred on the appellate courts and the additional evidence may be necessary for a variety of reasons. He held that additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be a failure of justice without it. The following was laid down in paras 8 and 9:
(AIR p. 1892) ::: Downloaded on - 08/07/2025 21:27:53 :::CIS P a g e | 18 2025:HHC:21735 "8. ... Since a wide discretion is conferred on appellate courts, the limits of that court's jurisdiction must obviously be dictated by the exigency of the situation .
and fair play and good sense appear to be the only safe guides. There is, no doubt, some analogy between the power to order a retrial and the power to take additional evidence. The former is an extreme step appropriately taken if additional evidence will not suffice. Both actions subsume failure of justice as a condition precedent. There, the resemblance ends, and it is hardly proper to construe one section with the aid of observations made by this Court in the interpretation of the other section.
9. Additional evidence may be necessary for a variety of reasons, which it is hardly necessary (even if it was possible) to list here. We do not propose to do what the legislature has refrained from doing, namely, to control the discretion of the appellate court under certain stated circumstances. It may, however, be said that additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be a failure of justice without it. The power must be exercised sparingly and only in suitable cases. Once such action is justified, there is no restriction on the kind of evidence which may be received. It may be formal or substantial. It must, of course, not be received in such a way as to cause prejudice to the accused, as, for example, it should not be received as a disguise for a retrial or to change the nature of the case against him. The order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it unless the requirements of justice dictate otherwise."
25. This Court again in Rambhau v. State of Maharashtra [Rambhau v. State of Maharashtra, (2001) 4 SCC 759: 2001 SCC (Cri) 812] had noted the power under Section ::: Downloaded on - 08/07/2025 21:27:53 :::CIS P a g e | 19 2025:HHC:21735 391 CrPC of the appellate court. Following was stated in paras 1 and 2 : (SCC p. 761) "1. There is available a very wide discretion available .
in the matter of obtaining additional evidence in terms of Section 391 of the Code of Criminal Procedure. A plain look at the statutory provisions (Section 391) would reveal the same...
2. A word of caution, however, ought to be introduced for guidance, to wit: that this additional evidence cannot and ought not to be received in such a way so as to cause any prejudice to the accused. It is not a disguise for a retrial or to change the nature of the case against the accused. This Court in Rajeswar Prasad Misra v. State of W.B. [Rajeswar Prasad Misra v. State of W.B., AIR 1965 SC 1887: (1965) 2 Cri LJ 817] in no uncertain terms observed that the order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it. This Court was candid enough to record, however, that it is the concept of justice which ought to prevail, and in the event, the same dictates exercise of power as conferred by the Code, there ought not to be any hesitation in that regard."
26. From the law laid down by this Court as noted above, it is clear that there are no fetters on the power under Section 391 CrPC of the appellate court. All powers are conferred on the court to secure the ends of justice. The ultimate object of judicial administration is to secure the ends of justice. The court exists for rendering justice to the people." (Emphasis supplied)
23. This position was reiterated in State (NCT of Delhi) v.
Pankaj Chaudhary, (2019) 11 SCC 575: (2019) 4 SCC (Cri) 264: 2018 SCC OnLine SC 2256, and it was held that this power should not be exercised to fill up the gaps by the other side and especially to ::: Downloaded on - 08/07/2025 21:27:53 :::CIS P a g e | 20 2025:HHC:21735 reverse the judgment of learned Trial Court. It was observed at page 586:
.
"25. The High Court observed that the trial court erred in saying that the accused failed to prove the making of previous complaints against the prosecutrix. While saying so, the High Court referred to certain complaints made against the prosecutrix, including the one allegedly given on 21-7-1997, which were produced by the Bar at the time of arguments. The power conferred under Section 391 CrPC is to be exercised with great care and caution. In dealing with any appeal, the appellate court can refer to the additional evidence only if the same has been recorded as provided under Section 391 CrPC. Any material produced before the appellate court to fill in the gaps by either side cannot be considered by the appellate court; more so, to reverse the judgment of the trial court."
24. Similarly, it was held in H.N. Jagadeesh v. R. Rajeshwari, (2019) 16 SCC 730: (2020) 2 SCC (Cri) 450: (2020) 2 SCC (Civ) 758:
2017 SCC OnLine SC 1813, that where the complainant had failed to produce the notice before the learned Trial Court, he could not be permitted to lead the evidence before the learned Appellate Court to prove it. It was observed at page 731:
"6. We are unable to agree with this approach of the High Court, in the facts of this case, which is inappropriate in law. The service of the statutory notice calling upon the drawer of the cheque (after it has been disowned) to pay the amount of the cheque is a necessary precondition for filing the complaint under Section 138 of the Act. Therefore, it was incumbent upon the respondent to produce the said statutory notice on record to prove the same as well. In this case, this document was not even filed by the respondent ::: Downloaded on - 08/07/2025 21:27:53 :::CIS P a g e | 21 2025:HHC:21735 along with the complaint, and the question of proving the same was, therefore, a far cry. In a case like this, we fail to understand how the aforesaid omission on the part of the respondent in not prosecuting the complaint properly could .
be ignored, and another chance could have been given to the respondent to prove the case by producing further evidence. It clearly amounts to giving an opportunity to the respondent to fill up the lacuna."
25. It was laid down in Rajvinder Singh v. State of Haryana, (2016) 14 SCC 671: (2016) 4 SCC (Cri) 421: 2015 SCC OnLine SC 971 that where it was possible to examine the Forensic Expert at the trial stage, an application to examine him at the appellate stage cannot be allowed. It was observed at page 677 "12. At the outset, we must deal with submissions as regards the application for leading additional evidence at the appellate stage. It has been the consistent defence of the appellant that the dead body found in agricultural fields in District Muzaffarnagar was that of Pushpa Verma, and he went to the extent of producing a photograph of the dead body in the present trial. He also examined Brahm Pal Singh, Sub-Inspector and other witnesses. It was certainly possible to examine a forensic expert at the trial court stage itself, and the High Court was right and justified in rejecting the prayer to lead additional evidence at the appellate stage. Nonetheless, we have gone through the report of the said forensic expert engaged by the appellant. The exercise undertaken by that expert is to start with the admitted photograph of Pushpa Verma on a computer, then remove the "bindi" by some process on the computer, then by same process remove her spectacles and by computer imaging change the image as it would have looked if the lady was lying down in an injured condition. The computer image so changed was then compared with the photograph of the dead body. We have seen both the images, and we are not ::: Downloaded on - 08/07/2025 21:27:53 :::CIS P a g e | 22 2025:HHC:21735 convinced at all about any element of similarity. We do not, therefore, see any reason to differ from the view taken by the High Court."
.
26. It was held in Ajitsinh Chehuji Rathod v. State of Gujarat, (2024) 4 SCC 453: 2024 SCC OnLine SC 77, that the power under Section 391 of Cr.P.C. can be exercised when the party was prevented from presenting the evidence despite the exercise of due diligence or the facts giving rise to such prayer came to light during the pendency of the appeal. It was observed at page 455:
"8. At the outset, we may note that the law is well-settled by a catena of judgments rendered by this Court that power to record additional evidence under Section 391CrPC should only be exercised when the party making such request was prevented from presenting the evidence in the trial despite due diligence being exercised or that the facts giving rise to such prayer came to light at a later stage during pendency of the appeal and that non-recording of such evidence may lead to failure of justice."
27. In the present case, the application does not mention that applicant was prevented from leading the evidence before the learned Trial Court despite the exercise of due diligence or the evidence came to his notice during the pendency of the revision;
rather it was stated that the accused admitted the receipt of ₹5,99,000/- in the cross-examination, and there was no need to produce the receipts in evidence or examine Inder Singh as a witness. Therefore, the application does not mention due diligence ::: Downloaded on - 08/07/2025 21:27:53 :::CIS P a g e | 23 2025:HHC:21735 for not producing evidence or the discovery of new evidence during the pendency of the revision.
.
28. The complainant admitted in his cross-examination that the father of the accused had paid ₹5,99,000/- to him between 15.05.2018 to 04.05.2022. He volunteered to say that the transaction with the father of the accused was different.
Therefore, there was no dispute regarding the receipt of ₹5,99,000/-.
29. The prayer in the application is for taking on record the affidavit executed by Inder Singh, father of the accused. It was laid down by Hon'ble Supreme Court in Mandvi Cooperative Bank Ltd. v. Nimesh B. Thakore, (2010) 3 SCC 83: (2010) 1 SCC (Civ) 625:
(2010) 2 SCC (Cri) 1: 2010 SCC OnLine SC 155 that the affidavit cannot be filed on behalf of the accused. It was observed:
"44. Coming now to the last question with regard to the right of the accused to give his evidence, like the com- plainant, on affidavit, the High Court has held that, subject to the provisions of sections 315 and 316 of the Code of Criminal Procedure, the accused can also give his evidence on affidavit. The High Court was fully conscious that section 145(1) does not provide for the accused to give his evidence, like the complainant, on the affidavit. But the High Court argued that there was no express bar in law against the ac- cused giving his evidence on affidavit, and more impor- tantly, providing a similar right to the accused would be in ::: Downloaded on - 08/07/2025 21:27:53 :::CIS P a g e | 24 2025:HHC:21735 furtherance of the legislative intent to make the trial process swifter.
45. In paragraph 29 of the judgment, the High Court ob-
.
served as follows:
"It is true that section 145(1) confers a right on the complainant to give evidence on affidavit. It does not speak of a similar right being conferred on the ac-
cused. The Legislature in their wisdom may not have thought it proper to incorporate the word `accused' with the word `complainant' in sub-section (1) of sec- tion 145 in view of the immunity conferred on the ac-
cused from being compelled to be a witness against himself under Article 20(3) of the Constitution of In- dia...."
Then, in paragraph 31 of the judgment, it observed:
".... Merely because section 145(1) does not expressly permit the accused to do so, does not mean that the Magistrate cannot allow the accused to give his evi- dence on affidavit by applying the same analogy un- less there is just and reasonable ground to refuse such permission. There is no express bar on the accused to give evidence on affidavit either in the Act or in the Code..... I find no justified reason to refuse permission to the accused to give his evidence on affidavit, sub-
ject to the provisions contained in sections 315 and 316 of the Code."
46. On this issue, we are afraid that the High Court over- reached itself and took a course that amounts to taking over the legislative functions. On a bare reading of section 143, it is clear that the legislature provided for the complainant to give his evidence on the affidavit and did not provide for the accused to similarly do so. But the High Court thought that not mentioning the accused along with the complainant in sub-section (1) of section 145 was merely an omission by the legislature that it could fill up without difficulty. Even though the legislature in their wisdom did not deem it proper to incorporate the word `accused' with the word ::: Downloaded on - 08/07/2025 21:27:53 :::CIS P a g e | 25 2025:HHC:21735 `complainant' in section 145(1), it did not mean that the Magistrate could not allow the accused to give his evidence on affidavit by applying the same analogy unless there was a just and reasonable ground to refuse such permission.
.
47. There are two errors apparent in the reasoning of the High Court. First, if the legislature in their wisdom did not think "it proper to incorporate a word `accused' with the word `complainant' in section 145(1)......", it was not open to the High Court to fill up the self-perceived blank. Secondly, the High Court was in error in drawing an analogy between the evidence of the complainant and the accused in a case of a dishonoured cheque. The case of the complainant in a complaint under section 138 of the Act would be based largely on documentary evidence.
48. The accused, on the other hand, in a large number of cases, may not lead any evidence at all and let the prosecu-
tion stand or fall on its evidence. In case the defence does lead any evidence, the nature of its evidence may not be necessarily documentary; in all likelihood, the defence would lead other kinds of evidence to rebut the presumption that the issuance of the cheque was not in the discharge of any debt or liability. This is the basic difference between the nature of the complainant's evidence and the evidence of the accused in a case of a dishonoured cheque. It is, there-
fore, wrong to equate the defence evidence with the com- plainant's evidence and to extend the same option to the ac- cused as well.
49. Coming back to the first error in the High Court's rea- soning, in the guise of interpretation, it is not permissible for the court to make additions to the law and to read into it something that is just not there. In Union of India and Anr. vs. Deoki Nandan Aggarwal, 1992 Supp. (1) SCC 323, this court sounded a note of caution against the court usurping the role of the legislator in the guise of interpretation. The court observed:
"14. ...it is not the duty of the court either to enlarge the scope of the legislation or the intention of the leg-::: Downloaded on - 08/07/2025 21:27:53 :::CIS
P a g e | 26 2025:HHC:21735 islature when the language of the provision is plain and unambiguous. The court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has .
not been conferred on the courts. The court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature, the court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The court, of course, adopts a construction which will carry out the obvious intention of the leg- islature, but it could not legislate itself. But to invoke judicial activism to set at nought the legislative judg- ment is subversive of the constitutional harmony and comity of instrumentalities...."
50. In Raghunath Rai Bareja and Anr. vs. Punjab National Bank and Ors., (2007) 2 SCC 230 while observing that it is the task of the elected representatives of the people to legislate and not that of the Judge even if it results in hardship or in-
convenience, Supreme Court quoted in affirmation, the ob- servation of Justice Frankfurter of the US Supreme Court which is as follows:
"41. As stated by Justice Frankfurter of the US Supreme Court (see "Of Law and Men: Papers and Ad- dresses of Felix Frankfurter") "Even within their area of choice, the courts are not at large. They are confined by the nature and scope of the judicial function in its particu- lar exercise in the field of interpretation. They are under the constraints imposed by the judi- cial function in our democratic society. As a matter of verbal recognition certainly, no one will gainsay that the function in construing a statute is to ascertain the meaning of words used by the legislator. To go beyond it is to usurp a power which our democracy has lodged in its elected legislature. The great judges have ::: Downloaded on - 08/07/2025 21:27:53 :::CIS P a g e | 27 2025:HHC:21735 constantly admonished their brethren of the need for discipline in observing the limitations. A judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever tempta-
.
tions the statesmanship of policy-making might wisely suggest, construction must es- chew interpolation and evisceration. He must not read in by way of creation. He must not read out except to avoid patent nonsense or internal contradiction."
51. In Duport Steels Ltd. vs. Sirs, [1980] 1 All ER 529, 534, Lord Scarman expounded the legal position in the following words:
"But in the field of statute law, the judge must be obe-
dient to the will of Parliament as expressed in its en- actments. In this field, Parliament makes and un- makes the law. The judge's duty is to interpret and to apply the law, not to change it to meet the judge's idea of what justice requires. Interpretation does, of course, imply in the interpreter a power of choice where differing constructions are possible. But our law requires the judge to choose the construction, which in his judgment best meets the legislative pur- pose of the enactment. If the result be unjust but in-
evitable, the judge may say so and invite Parliament to reconsider its provision. But he must not deny the statute."
52. In light of the above we have no hesitation in holding that the High Court was in error in taking the view, that on a request made by the accused the magistrate may allow him to tender his evidence on affidavit and consequently, we set aside the direction as contained in subparagraph (r) of paragraph 45 of the High Court judgment."
::: Downloaded on - 08/07/2025 21:27:53 :::CISP a g e | 28 2025:HHC:21735
30. Therefore, it is impermissible to receive the affidavit as evidence on behalf of the accused.
.
31. The accused filed an application under Section 145(2) of the NI Act, in which he stated that he had returned the amount and the cheque was misused by the complainant. He never claimed that the amount was returned by his father on his behalf. The accused also did not state in his statement recorded under Section 313 of Cr.P.C. that his father paid money on his behalf. He only stated that he was not liable to pay any money. Therefore, the accused never asserted that money was returned by his father, and this plea cannot be permitted to be proved before this Court by leading the evidence.
32. The application does not satisfy the requirement of Section 432 of BNSS. The evidence sought to be led is regarding the plea, which was not taken by the accused in the application under Section 145(2) of the NI Act, or the statement recorded under Section 313 of Cr.P.C. Therefore, it is not permissible to take such a plea before this Court. Hence, the application fails, and the same is dismissed.
::: Downloaded on - 08/07/2025 21:27:53 :::CISP a g e | 29 2025:HHC:21735
33. The accused admitted in his statement recorded under Section 313 of Cr.P.C. that the cheque bears his signature. It was .
laid down by this Court in Naresh Verma vs. Narinder Chauhan 2020(1) ShimLC 398 that where the accused had not disputed his signatures on the cheque, the Court has to presume that it was issued in discharge of legal liability, and the burden would shift upon the accused to rebut the presumption. It was observed: -
"8. Once signatures on the cheque are not disputed, the plea with regard to the cheque having not been issued towards discharge of lawful liability, rightly came to be rejected by learned Courts below. Reliance is placed upon Hiten P. Dalal v. Bartender Nath Bannerji, 2001 (6) SCC 16, wherein it has been held as under:
"The words 'unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when, upon the material before it, the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted......"
9. S.139 of the Act provides that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.
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34. Similar is the judgment in Basalingappa vs. Mudibasappa 2019 (5) SCC 418 wherein it was held:
.
"26. Applying the proposition of law as noted above, in the facts of the present case, it is clear that the signature on the cheque, having been admitted, a presumption shall be raised under Section 139 that the cheque was issued in discharge of debt or liability."
35. This position was reiterated in Kalamani Tex v. P. Balasubramanian, (2021) 5 SCC 283: (2021) 3 SCC (Civ) 25: (2021) 2 SCC (Cri) 555: 2021 SCC OnLine SC 75 wherein it was held at page 289:
"14. Once the 2nd appellant had admitted his signatures on the cheque and the deed, the trial court ought to have presumed that the cheque was issued as consideration for a legally enforceable debt. The trial court fell in error when it called upon the respondent complainant to explain the circumstances under which the appellants were liable to pay. Such an approach of the trial court was directly in the teeth of the established legal position as discussed above, and amounts to a patent error of law."
36. Similar is the judgment in APS Forex Services (P) Ltd. v.
Shakti International Fashion Linkers (2020) 12 SCC 724, wherein it was observed: -
"7.2. What is emerging from the material on record is that the issuance of a cheque by the accused and the signature of the accused on the said cheque are not disputed by the accused. The accused has also not disputed that there were transactions between the parties. Even as per the statement of the accused, which was recorded at the time of the ::: Downloaded on - 08/07/2025 21:27:53 :::CIS P a g e | 31 2025:HHC:21735 framing of the charge, he has admitted that some amount was due and payable. However, it was the case on behalf of the accused that the cheque was given by way of security, and the same has been misused by the complainant.
.
However, nothing is on record that in the reply to the statutory notice, it was the case on behalf of the accused that the cheque was given by way of security. Be that as it may, however, it is required to be noted that earlier the accused issued cheques which came to be dishonoured on the ground of "insufficient funds" and thereafter a fresh consolidated cheque of ₹9,55,574 was given which has been returned unpaid on the ground of " STOP PAYMENT".
Therefore, the cheque in question was issued for the second time. Therefore, once the accused has admitted the issuance of a cheque which bears his signature, there is a presumption that there exists a legally enforceable debt or liability under Section 139 of the NI Act. However, such a presumption is rebuttable in nature, and the accused is required to lead evidence to rebut such presumption. The accused was required to lead evidence that the entire amount due and payable to the complainant was paid.
9. Coming back to the facts in the present case and considering the fact that the accused has admitted the issuance of the cheques and his signature on the cheque and that the cheque in question was issued for the second time after the earlier cheques were dishonoured and that even according to the accused some amount was due and payable, there is a presumption under Section 139 of the NI Act that there exists a legally enforceable debt or liability. Of course, such presumption is rebuttable in nature. However, to rebut the presumption, the accused was required to lead evidence that the full amount due and payable to the complainant had been paid. In the present case, no such evidence has been led by the accused. The story put forward by the accused that the cheques were given by way of security is not believable in the absence of further evidence to rebut the presumption, and more particularly, the cheque in question was issued for the second time after the earlier ::: Downloaded on - 08/07/2025 21:27:53 :::CIS P a g e | 32 2025:HHC:21735 cheques were dishonoured. Therefore, both the courts below have materially erred in not properly appreciating and considering the presumption in favour of the complainant that there exists a legally enforceable debt or .
liability as per Section 139 of the NI Act. It appears that both the learned trial court as well as the High Court have committed an error in shifting the burden upon the complainant to prove the debt or liability, without appreciating the presumption under Section 139 of the NI Act. As observed above, Section 139 of the Act is an example of reverse onus clause and therefore, once the issuance of the cheque has been admitted and even the signature on the cheque has been admitted, there is always a presumption in favour of the complainant that there exists legally enforceable debt or liability and thereafter, it is for the accused to rebut such presumption by leading evidence."
37. The presumption under Section 139 of the NI Act was explained by the Hon'ble Supreme Court in Triyambak S. Hegde v.
Sripad, (2022) 1 SCC 742: (2022) 1 SCC (Civ) 512: 2021 SCC OnLine SC 788 as under at page 747:
"12. From the facts arising in this case and the nature of the rival contentions, the record would disclose that the signature on the documents at Exts. P-6 and P-2 are not disputed. Ext. P-2 is the dishonoured cheque based on which the complaint was filed. From the evidence tendered before the JMFC, it is clear that the respondent has not disputed the signature on the cheque. If that be the position, as noted by the courts below, a presumption would arise under Section 139 in favour of the appellant who was the holder of the cheque. Section 139 of the NI Act reads as hereunder:
"139. Presumption in favour of the holder. --It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature ::: Downloaded on - 08/07/2025 21:27:53 :::CIS P a g e | 33 2025:HHC:21735 referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability."
13. Insofar as the payment of the amount by the appellant in .
the context of the cheque having been signed by the respondent, the presumption for passing of the consideration would arise as provided under Section 118(a) of the NI Act, which reads as hereunder:
"118. Presumptions as to negotiable instruments. -- Until the contrary is proved, the following presumptions shall be made:
(a) of consideration: that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration."
14. The above-noted provisions are explicit to the effect that such presumption would remain until the contrary is proved. The learned counsel for the appellant in that regard has relied on the decision of this Court in K. Bhaskaran v. Sankaran Vaidhyan Balan [K. Bhaskaran v. Sankaran Vaidhyan Balan, (1999) 7 SCC 510:
1999 SCC (Cri) 1284] wherein it is held as hereunder: (SCC pp. 516-17, para 9) "9. As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins the Court to presume that the holder of the cheque received it for the discharge of any debt or liability. The burden was on the accused to rebut the aforesaid presumption. The trial court was not persuaded to rely on the interested testimony of DW 1 to rebut the presumption. The said finding was upheld [Sankaran Vaidhyan Balan v. K. Bhaskaran, Criminal Appeal No. 234 of 1995, order dated 23-10- ::: Downloaded on - 08/07/2025 21:27:53 :::CIS
P a g e | 34 2025:HHC:21735 1998 (Ker)] by the High Court. It is not now open to the accused to contend differently on that aspect."
15. The learned counsel for the respondent has, however, .
referred to the decision of this Court in Basalingappa v. Mudibasappa [Basalingappa v. Mudibasap pa, (2019) 5 SCC 418: (2019) 2 SCC (Cri) 571] wherein it is held as hereunder: (SCC pp. 432-33, paras 25-26) "25. We having noticed the ratio laid down by this Court in the above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in the following manner:
25.1. Once the execution of the cheque is admitted, Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
25.2. The presumption under Section 139 is a rebuttable presumption, and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence.
Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
25.4. That it is not necessary for the accused to come into the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.
25.5. It is not necessary for the accused to come into the witness box to support his defence.
26. Applying the preposition of law as noted above, in the facts of the present case, it is clear that the ::: Downloaded on - 08/07/2025 21:27:53 :::CIS P a g e | 35 2025:HHC:21735 signature on the cheque, having been admitted, a presumption shall be raised under Section 139 that the cheque was issued in discharge of debt or liability. The question to be looked into is as to whether any .
probable defence was raised by the accused. In the cross-examination of PW 1, when the specific question was put that a cheque was issued in relation to a loan of Rs 25,000 taken by the accused, PW 1 said that he does not remember. PW 1 in his evidence admitted that he retired in 1997, on which date he received a monetary benefit of Rs 8 lakhs, which was encashed by the complainant. It was also brought in evidence that in the year 2010, the complainant entered into a sale agreement for which he paid an amount of Rs 4,50,000 to Balana Gouda towards sale consideration. Payment of Rs 4,50,000 being admitted in the year 2010 and further payment of loan of Rs 50,000 with regard to which Complaint No. 119 of 2012 was filed by the complainant, a copy of which complaint was also filed as Ext. D-2, there was a burden on the complainant to prove his financial capacity. In the years 2010-2011, as per own case of the complainant, he made a payment of Rs 18 lakhs.
During his cross-examination, when the financial capacity to pay Rs 6 lakhs to the accused was questioned, there was no satisfactory reply given by the complainant. The evidence on record, thus, is a probable defence on behalf of the accused, which shifted the burden on the complainant to prove his financial capacity and other facts."
16. In that light, it is contended that the very materials produced by the appellant and the answers relating to lack of knowledge of property details by PW 1 in his cross- examination would indicate that the transaction is doubtful, and no evidence is tendered to indicate that the amount was paid. In such an event, it was not necessary for the respondent to tender rebuttal evidence, but the case put ::: Downloaded on - 08/07/2025 21:27:53 :::CIS P a g e | 36 2025:HHC:21735 forth would be sufficient to indicate that the respondent has successfully rebutted the presumption.
17. On the position of law, the provisions referred to in .
Sections 118 and 139 of the NI Act, as also the enunciation of law as made by this Court, need no reiteration as there is no ambiguity whatsoever. In Basalingappav. Mudibasappa [Basalingappa v. Mudibasappa, (2019) 5 SCC 418 : (2019) 2 SCC (Cri) 571] relied on by the learned counsel for the respondent, though on facts the ultimate conclusion therein was against raising presumption, the facts and circumstances are entirely different as the transaction between the parties as claimed in the said case is peculiar to the facts of that case where the consideration claimed to have been paid did not find favour with the Court keeping in view the various transactions and extent of amount involved. However, the legal position relating to the presumption arising under Sections 118 and 139 of the NI Act on signature being admitted has been reiterated. Hence, whether there is a rebuttal or not would depend on the facts and circumstances of each case."
38. This position was reiterated in Tedhi Singh v. Narayan Dass Mahant, (2022) 6 SCC 735: (2022) 2 SCC (Cri) 726: (2022) 3 SCC (Civ) 442: 2022 SCC OnLine SC 302 wherein it was held at page 739:
"8. It is true that this is a case under Section 138 of the Negotiable Instruments Act. Section 139 of the NI Act provides that the court shall presume that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. This presumption, however, is expressly made subject to the position being proved to the contrary. In other words, it is open to the accused to establish that there is no consideration received. It is in the context of this provision that the theory of "probable defence" has grown. In an earlier judgment, in fact, which has also been adverted to in Basalingappa [Basalingappa v.::: Downloaded on - 08/07/2025 21:27:53 :::CIS
P a g e | 37 2025:HHC:21735 Mudibasappa, (2019) 5 SCC 418: (2019) 2 SCC (Cri) 571], this Court notes that Section 139 of the NI Act is an example of reverse onus (see Rangappa v. Sri Mohan [Rangappa v. Sri Mohan, (2010) 11 SCC 441: (2010) 4 SCC (Civ) 477: (2011) 1 SCC .
(Cri) 184]). It is also true that this Court has found that the accused is not expected to discharge an unduly high standard of proof. It is accordingly that the principle has developed that all which the accused needs to establish is a probable defence. As to whether a probable defence has been established is a matter to be decided on the facts of each case on the conspectus of evidence and circumstances that exist..."
39. Similar is the judgment in P. Rasiya v. Abdul Nazer, 2022 SCC OnLine SC 1131, wherein it was observed:
"As per Section 139 of the N.I. Act, it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for discharge, in whole or in part, of any debt or other liability. Therefore, once the initial burden is discharged by the Complainant that the cheque was issued by the accused and the signature and the issuance of the cheque are not disputed by the accused, in that case, the onus will shift upon the accused to prove the contrary that the cheque was not for any debt or other liability. The presumption under Section 139 of the N.I. Act is a statutory presumption and thereafter, once it is presumed that the cheque is issued in whole or in part of any debt or other liability which is in favour of the Complainant/holder of the cheque, in that case, it is for the accused to prove the contrary."
40. This position was reiterated in Rajesh Jain v. Ajay Singh, (2023) 10 SCC 148: 2023 SCC OnLine SC 1275, wherein it was observed at page 161:
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33. The NI Act provides for two presumptions: Section 118 and Section 139. Section 118 of the Act inter alia directs that it shall be presumed until the contrary is proved that every negotiable instrument was made or drawn for .
consideration. Section 139 of the Act stipulates that "unless the contrary is proved, it shall be presumed that the holder of the cheque received the cheque for the discharge of, whole or part of any debt or liability". It will be seen that the "presumed fact" directly relates to one of the crucial ingredients necessary to sustain a conviction under Section
138. [The rules discussed hereinbelow are common to both the presumptions under Section 139 and Section 118 and are hence not repeated--reference to one can be taken as reference to another]
34. Section 139 of the NI Act, which takes the form of a "shall presume" clause, is illustrative of a presumption of law. Because Section 139 requires that the Court "shall presume" the fact stated therein, it is obligatory for the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary, as is clear from the use of the phrase "unless the contrary is proved".
35. The Court will necessarily presume that the cheque had been issued towards the discharge of a legally enforceable debt/liability in two circumstances. Firstly, when the drawer of the cheque admits issuance/execution of the cheque and secondly, in the event where the complainant proves that the cheque was issued/executed in his favour by the drawer. The circumstances set out above form the fact(s) which bring about the activation of the presumptive clause. [Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal [Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal, (1999) 3 SCC 35]]
36. Recently, this Court has gone to the extent of holding that presumption takes effect even in a situation where the accused contends that a blank cheque leaf was voluntarily ::: Downloaded on - 08/07/2025 21:27:53 :::CIS P a g e | 39 2025:HHC:21735 signed and handed over by him to the complainant. [Bir Singh v. Mukesh Kumar [Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197: (2019) 2 SCC (Civ) 309: (2019) 2 SCC (Cri) 40] ]. Therefore, the mere admission of the drawer's signature, .
without admitting the execution of the entire contents in the cheque, is now sufficient to trigger the presumption.
37. As soon as the complainant discharges the burden to prove that the instrument, say a cheque, was issued by the accused for discharge of debt, the presumptive device under Section 139 of the Act helps shifting the burden on the accused. The effect of the presumption, in that sense, is to transfer the evidential burden on the accused of proving that the cheque was not received by the Bank towards the discharge of any liability. Until this evidential burden is discharged by the accused, the presumed fact will have to be taken to be true, without expecting the complainant to do anything further.
38. John Henry Wigmore [John Henry Wigmore and the Rules of Evidence: The Hidden Origins of Modern Law] on Evidence states as follows:
"The peculiar effect of the presumption of law is merely to invoke a rule of law compelling the Jury to reach the conclusion in the absence of evidence to the contrary from the opponent but if the opponent does offer evidence to the contrary (sufficient to satisfy the Judge's requirement of some evidence), the presumption 'disappears as a rule of law and the case is in the Jury's hands free from any rule'."
39. The standard of proof to discharge this evidential burden is not as heavy as that usually seen in situations where the prosecution is required to prove the guilt of an accused. The accused is not expected to prove the non- existence of the presumed fact beyond a reasonable doubt. The accused must meet the standard of "preponderance of probabilities", similar to a defendant in a civil proceeding. [Rangappa v. Sri Mohan [Rangappa v. Sri Mohan, (2010) 11 ::: Downloaded on - 08/07/2025 21:27:53 :::CIS P a g e | 40 2025:HHC:21735 SCC 441: (2010) 4 SCC (Civ) 477: (2011) 1 SCC (Cri) 184: AIR 2010 SC 1898]]
41. Therefore, learned Courts learned Courts below had .
rightly held that the Courts have to start with the presumption that the cheque was issued for consideration in discharge of the legal liability and the burden is upon the accused to rebut the presumption.
42. The complainant stated in his cross-examination that the accused is related to him. He obtained ₹4,60,000/- and issued two cheques one of ₹1,00,000/- and another of ₹3,60,000/-. He admitted that he had not mentioned this fact in his complaint. He could not say on which day the money was withdrawn. He had not annexed the details of the bank account to the complaint.
43. It was submitted that the complainant failed to produce the details of his bank account to show that money was paid by him to the accused. This submission is not acceptable. It was laid down by the Hon'ble Supreme Court in Ashok Singh v.
State of U.P., 2025 SCC OnLine SC 706 that the complainant is not to prove the advancement of a loan to the accused because it is a matter of presumption. It is for the accused to rebut the presumption. It was observed:
::: Downloaded on - 08/07/2025 21:27:53 :::CISP a g e | 41 2025:HHC:21735
22. The High Court while allowing the criminal revision has primarily proceeded on the presumption that it was obligatory on the part of the complainant to establish his case on the basis of evidence by giving the details of the .
bank account as well as the date and time of the withdrawal of the said amount which was given to the accused and also the date and time of the payment made to the accused, including the date and time of receiving of the cheque, which has not been done in the present case. Pausing here, such presumption on the complainant, by the High Court, appears to be erroneous. The onus is not on the complainant at the threshold to prove his capacity/financial wherewithal to make the payment in discharge of which the cheque is alleged to have been issued in his favour. Only if an objection is raised that the complainant was not in a financial position to pay the amount so claimed by him to have been given as a loan to the accused, only then the complainant would have to bring before the Court cogent material to indicate that he had the financial capacity and had actually advanced the amount in question by way of loan. In the case at hand, the appellant had categorically stated in his deposition and reiterated in the cross- examination that he had withdrawn the amount from the bank in Faizabad (Typed Copy of his deposition in the paperbook wrongly mentions this as 'Firozabad'). The Court ought not to have summarily rejected such a stand, more so when respondent no. 2 did not make any serious attempt to dispel/negate such a stand/statement of the appellant.
Thus, on the one hand, the statement made before the Court, both in examination-in-chief and cross- examination, by the appellant with regard to withdrawing the money from the bank for giving it to the accused has been disbelieved whereas the argument on behalf of the accused that he had not received any payment of any loan amount has been accepted. In our decision in S. S. Production v. Tr. Pavithran Prasanth, 2024 INSC 1059, we opined:
::: Downloaded on - 08/07/2025 21:27:53 :::CISP a g e | 42 2025:HHC:21735 '8. From the order impugned, it is clear that though the contention of the petitioners was that the said amounts were given for producing a film and were not by way of return of any loan taken, which may have been a probable defence for .
the petitioners in the case, but rightly, the High Court has taken the view that evidence had to be adduced on this point which has not been done by the petitioners. Pausing here, the Court would only comment that the reasoning of the High Court, as well as the First Appellate Court and Trial Court, on this issue is sound. Just by taking a counter-stand to raise a probable defence would not shift the onus on the complainant in such a case, for the plea of defence has to be buttressed by evidence, either oral or documentary, which in the present case has not been done. Moreover, even if it is presumed that the complainant had not proved the source of the money given to the petitioners by way of loan by producing statement of accounts and/or Income Tax Returns, the same ipso facto, would not negate such claim for the reason that the cheques having being issued and signed by the petitioners has not been denied, and no evidence has been led to show that the respondent lacked capacity to provide the amount(s) in question. In this regard, we may make profitable reference to the decision in Tedhi Singh v. Narayan Dass Mahant, (2022) 6 SCC 735:
'10. The trial court and the first appellate court have noted that in the case under Section 138 of the NI Act, the complainant need not show in the first instance that he had the capacity. The proceedings under Section 138 of the NI Act is not a civil suit. At the time, when the complainant gives his evidence, unless a case is set up in the reply notice to the statutory notice sent, that the complainant did not have the wherewithal, it cannot be expected of the complainant to initially lead evidence to show that he had the financial capacity. To that extent, the courts in our view were right in holding on those lines. However, the accused has the right to demonstrate that the complainant in a particular case did not have the capacity and therefore, the case of the accused is ::: Downloaded on - 08/07/2025 21:27:53 :::CIS P a g e | 43 2025:HHC:21735 acceptable, which he can do by producing independent materials, namely, by examining his witnesses and producing documents. It is also open to him to establish the very same aspect by pointing to the materials .
produced by the complainant himself. He can further, more importantly, achieve this result through the cross-
examination of the witnesses of the complainant. Ultimately, it becomes the duty of the courts to consider carefully and appreciate the totality of the evidence and then come to a conclusion whether, in the given case, the accused has shown that the case of the complainant is in peril for the reason that the accused has established a probable defence.' (emphasis supplied)' (underlining in original; emphasis supplied by us in bold)
44. Therefore, there was no requirement to prove the payment of money by leading the evidence, and the case of the complainant cannot be doubted due to the absence of evidence regarding the account details.
45. The complainant admitted that the father of the accused had paid ₹5,99,000/- to him between 15.05.2018 to 04.05.2022.He volunteered to say that it was a different transaction. It was submitted that the complainant had not produced books of account to show the transactions with the father of the accused. This submission cannot be accepted. The accused did not send the reply to the notice served upon him by the complainant. He did not assert in the application filed under ::: Downloaded on - 08/07/2025 21:27:53 :::CIS P a g e | 44 2025:HHC:21735 Section 145 (2) of the NI Act that his father had paid money on his behalf. Therefore, there was no occasion for the complainant to .
lead evidence to this effect.
46. The father of the accused did not step into the witness box to say that he had paid the money to the complainant on behalf of the accused. Hence, the payment made by his father accused to the complainant will not absolve the accused of his liability.
47. The accused did not step into the witness box to prove that he was not liable to pay money to the accused. He remained satisfied with the plea taken by him in his statement recorded under Section 313 of Cr.P.C. to this effect. It was held in Sumeti Vij v. Paramount Tech Fab Industries, (2022) 15 SCC 689: 2021 SCC OnLine SC 201 that the accused has to lead defence evidence to rebut the presumption and mere denial in his statement under Section 313 of Cr.P.C. is not sufficient to rebut the presumption. It was observed at page 700:
"20. That apart, when the complainant exhibited all these documents in support of his complaints and recorded the statement of three witnesses in support thereof, the appellant has recorded her statement under Section 313 of the Code but failed to record evidence to disprove or rebut the presumption in support of her defence available under ::: Downloaded on - 08/07/2025 21:27:53 :::CIS P a g e | 45 2025:HHC:21735 Section 139 of the Act. The statement of the accused recorded under Section 313 of the Code is not substantive evidence of defence, but only an opportunity for the accused to explain the incriminating circumstances appearing in the prosecution's .
case against the accused. Therefore, there is no evidence to rebut the presumption that the cheques were issued for consideration." (Emphasis supplied)"
48. In the present case, the accused did not appear in the witness box, nor did he examine any witness to establish the plea taken by him that he was not liable to pay any money to the complainant, and the learned Trial Court had rightly rejected this plea.
49. The complainant stated in his cross-examination that the ink of the pen with which the account numbers were mentioned is different. He volunteered to say that the cheque was filled by the accused himself. The mere fact that the account number and names were mentioned in different ink will not help the accused. It was laid down by the Hon'ble Supreme Court in Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197: (2019) 2 SCC (Cri) 40:
(2019) 2 SCC (Civ) 309: 2019 SCC OnLine SC 138, that a person is liable for the commission of an offence punishable under section 138 of the N.I Act even if the cheque is filled by some other person.
It was observed:
"33. A meaningful reading of the provisions of the ::: Downloaded on - 08/07/2025 21:27:53 :::CIS P a g e | 46 2025:HHC:21735 Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption .
that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted.
34. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence.
35. It is not the case that the respondent accused him of either signing the cheque or parted with it under any threat or coercion. Nor is it the case that the respondent accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. The second question is also answered in the negative.
36. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt."
50. This position was reiterated in Oriental Bank of Commerce v. Prabodh Kumar Tewari, 2022 SCC OnLine SC 1089, wherein it was observed:
::: Downloaded on - 08/07/2025 21:27:53 :::CISP a g e | 47 2025:HHC:21735 "12. The submission, which has been urged on behalf of the appellant, is that even assuming, as the first respondent submits, that the details in the cheque were not filled in by the drawer, this would not make any difference to the .
liability of the drawer.
xxxxxx
32. A drawer who signs a cheque and hands it over to the payee is presumed to be liable unless the drawer adduces evidence to rebut the presumption that the cheque has been issued towards payment of a debt or in the discharge of a liability. The presumption arises under Section 139.
51. Therefore, the cheque is not bad even if it is not filled in by someone else.
52. Thus, the accused had failed to rebut the presumption attached to the cheque.
53. The complainant stated that the cheque was dishonoured with an endorsement 'insufficient funds'. This is duly corroborated by the cheque return memo (Ext.CW-1/B) in which the reason for dishonour has been mentioned as 'funds insufficient'. The accused did not dispute specifically the reason for dishonour and stated that he was not aware of the reason for the dishonour. There is a presumption under Section 146 of the N.I.Act regarding the correctness of the memo of dishonour. It was laid down by the Hon'ble Supreme Court in Mandvi Cooperative ::: Downloaded on - 08/07/2025 21:27:53 :::CIS P a g e | 48 2025:HHC:21735 Bank Ltd. v. Nimesh B. Thakore, (2010) 3 SCC 83: (2010) 1 SCC (Civ) 625: (2010) 2 SCC (Cri) 1: 2010 SCC OnLine SC 155 that the memo .
issued by the Bank is presumed to be correct and the burden is upon the accused to rebut the presumption. It was observed at page 95:
24. Section 146, making a major departure from the principles of the Evidence Act, provides that the bank's slip or memo with the official mark showing that the cheque was dishonoured would, by itself, give rise to the presumption of dishonour of the cheque, unless and until that fact was disproved. Section 147 makes the offences punishable under the Act compoundable.
54. In the present case, no evidence was produced to rebut the presumption, and the learned Courts below had rightly held that the cheque was dishonoured with an endorsement 'insufficient funds'.
55. The complainant stated that he had issued a notice to the accused asking him to pay the amount. The accused admitted in his statement recorded under Section 313 of Cr.P.C. that he had received a notice; therefore, receipt of notice is not disputed.
56. The accused claimed that he was not liable to pay any money to the complainant; thus, it was duly proved that the ::: Downloaded on - 08/07/2025 21:27:53 :::CIS P a g e | 49 2025:HHC:21735 accused had failed to pay the money despite the receipt of a valid notice of demand.
.
57. Therefore, it was proved on record that the complainant had issued a cheque in discharge of the legal liability, which was dishonoured with an endorsement 'funds insufficient'.
The complainant issued a valid notice of demand, which was duly served upon the accused, and the accused failed to pay the amount despite the receipt of the notice of demand. Therefore, all the ingredients of the commission of the offence punishable under Section 138 of the NI Act were duly satisfied, and the learned Trial Court had rightly convicted the accused of the commission of the offence punishable under Section 138 of the NI Act.
58. The learned Trial Court sentenced the accused to undergo simple imprisonment for a period of one year. It was laid down by the Hon'ble Supreme Court in Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197: (2019) 2 SCC (Cri) 40: (2019) 2 SCC (Civ) 309: 2019 SCC OnLine SC 138 that the penal provisions of ection 138 is deterrent in nature. It was observed at page 203:
"6. The object of Section 138 of the Negotiable Instruments Act is to infuse credibility into negotiable instruments, including cheques, and to encourage and promote the use of negotiable instruments, including cheques, in financial ::: Downloaded on - 08/07/2025 21:27:53 :::CIS P a g e | 50 2025:HHC:21735 transactions. The penal provision of Section 138 of the Negotiable Instruments Act is intended to be a deterrent to callous issuance of negotiable instruments such as cheques without serious intention to honour the promise implicit in .
the issuance of the same."
59. Keeping in view the deterrent nature of the sentence to be awarded, the sentence of one year's imprisonment cannot be said to be excessive, and no interference is required with it.
60. Learned Trial Court ordered the payment of compensation of ₹1,50,000/-. The cheque was issued on 31.05.2019 and the sentence was imposed on 19.01.2023 after the lapse of more than four years. The complainant lost interest that he would have obtained by depositing the money in the Bank. He had to pay the litigation expenses for filing the complaint. He was entitled to be compensated for the same. It was laid down by the Hon'ble Supreme Court in Kalamani Tex v. P. Balasubramanian, (2021) 5 SCC 283: (2021) 3 SCC (Civ) 25: (2021) 2 SCC (Cri) 555: 2021 SCC OnLine SC 75 that the Courts should uniformly levy a fine up to twice the cheque amount along with simple interest at the rate of 9% per annum. It was observed at page 291: -
19. As regards the claim of compensation raised on behalf of the respondent, we are conscious of the settled principles that the object of Chapter XVII of NIA is not only punitive but also compensatory and restitutive. The provisions of ::: Downloaded on - 08/07/2025 21:27:53 :::CIS P a g e | 51 2025:HHC:21735 NIA envision a single window for criminal liability for the dishonour of a cheque as well as civil liability for the realisation of the cheque amount. It is also well settled that there needs to be a consistent approach towards awarding .
compensation, and unless there exist special circumstances, the courts should uniformly levy fines up to twice the cheque amount along with simple interest @ 9% p.a. [R. Vijayan v. Baby, (2012) 1 SCC 260, para 20: (2012) 1 SCC (Civ) 79: (2012) 1 SCC (Cri) 520]"
61. Therefore, the amount of ₹50,000/- on the principal of ₹1,00,000/- cannot be said to be excessive and no interference is required with it.
62. The learned Trial Court ordered the accused to undergo simple imprisonment for one month in default of payment of compensation. It was submitted that it is impermissible to sentence a person to imprisonment in case of default in the payment of a fine. This submission is not acceptable. It was laid down by the Hon'ble Supreme Court in K.A. Abbas v. Sabu Joseph, (2010) 6 SCC 230, that the Courts can impose a sentence of imprisonment in default of payment of compensation. It was observed at page 237:
"20. Moving over to the question, whether a default sentence can be imposed on default of payment of compensation, this Court in Hari Singh v. Sukhbir Singh [(1988) 4 SCC 551: 1988 SCC (Cri) 984: AIR 1988 SC 2127] and in Balraj v. State of U.P. [(1994) 4 SCC 29: 1994 SCC (Cri) 823: AIR 1995 SC 1935], has held that it was open to all the ::: Downloaded on - 08/07/2025 21:27:53 :::CIS P a g e | 52 2025:HHC:21735 courts in India to impose a sentence on default of payment of compensation under sub-section (3) of Section 357. In Hari Singh v. Sukhbir Singh [(1988) 4 SCC 551: 1988 SCC (Cri) 984: AIR 1988 SC 2127], this Court has noticed certain .
factors which are required to be taken into consideration while passing an order under the section: (SCC p. 558, para
11) "11. The payment by way of compensation must, however, be reasonable. What is reasonable may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of the crime, the justness of the claim by the victim and the ability of the accused to pay. If there is more than one accused, they may be asked to pay on equal terms unless their capacity to pay varies considerably. The payment may also vary depending on the acts of each accused. A reasonable period for payment of compensation, if necessary, by instalments, may also be given. The court may enforce the order by imposing a sentence in default."
21. This position also finds support in R. v. Oliver John Huish [(1985) 7 Cri App R (S) 272]. The Lord Justice Croom Johnson, speaking for the Bench, has observed:
"When compensation orders may be made, the most careful examination is required. Documents should be obtained, and evidence, either on affidavit or orally, should be given. The proceedings should, if necessary, be adjourned to arrive at the true state of the defendant's affairs.
Very often, a compensation order is made and a very light sentence of imprisonment is imposed, because the court recognises that if the defendant is to have an opportunity of paying the compensation, he must be enabled to earn the money with which to do so. The result is therefore an extremely light sentence of imprisonment. If the compensation order turns out to ::: Downloaded on - 08/07/2025 21:27:53 :::CIS P a g e | 53 2025:HHC:21735 be virtually worthless, the defendant has got off with a very light sentence of imprisonment as well as no order of compensation. In other words, generally speaking, he has got off with everything."
.
22. The law laid down in Hari Singh v. Sukhbir Singh [(1988) 4 SCC 551: 1988 SCC (Cri) 984: AIR 1988 SC 2127] was reiterated by this Court in Suganthi Suresh Kumar v. Jagdeeshan [(2002) 2 SCC 420: 2002 SCC (Cri) 344]. The Court observed: (SCC pp. 424-25, paras 5 & 10) "5. In the said decision, this Court reminded all concerned that it is well to remember the emphasis laid on the need for making liberal use of Section 357(3) of the Code. This was observed by reference to a decision of this Court in Hari Singh v. Sukhbir Singh [(1988) 4 SCC 551: 1988 SCC (Cri) 984: AIR 1988 SC 2127]. In the said decision, this Court held as follows: (SCC p. 558, para 11) '11. ... The quantum of compensation may be determined by taking into account the nature of the crime, the justness of the claim by the victim and the ability of the accused to pay. If there is more than one accused, they may be asked to pay on equal terms unless their capacity to pay varies considerably. The payment may also vary depending on the acts of each accused. A reasonable period for payment of compensation, if necessary, by instalments, may also be given. The court may enforce the order by imposing a sentence in default.' (emphasis in original) ***
10. That apart, Section 431 of the Code has only prescribed that any money (other than fine) payable by virtue of an order made under the Code shall be recoverable 'as if it were a fine'. Two modes of recovery of the fine have been indicated in Section 421(1) of the Code. The proviso to the sub-section says that if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, ::: Downloaded on - 08/07/2025 21:27:53 :::CIS P a g e | 54 2025:HHC:21735 and if such offender has undergone the whole of such imprisonment in default, no court shall issue such warrant for the levy of the amount."
.
The Court further held: (Jagdeeshan case [(2002) 2 SCC 420:
2002 SCC (Cri) 344], SCC p. 425, para 11)
"11. When this Court pronounced in Hari Singh v. Sukhbir Singh [(1988) 4 SCC 551: 1988 SCC (Cri) 984: AIR 1988 SC 2127] that a court may enforce an order to pay compensation 'by imposing a sentence in default' it is open to all courts in India to follow the said course. The said legal position would continue to hold good until it is overruled by a larger Bench of this Court. Hence learned Single Judge of the High Court of Kerala has committed an impropriety by expressing that the said legal direction of this Court should not be followed by the subordinate courts in Kerala. We express our disapproval of the course adopted by the said Judge in Rajendran v. Jose [(2001) 3 KLT 431]. It is unfortunate that when the Sessions Judge has correctly done a course in accordance with the discipline, the Single Judge of the High Court has incorrectly reversed it."
23. In order to set at rest the divergent opinion expressed in Ahammedkutty case [(2009) 6 SCC 660 : (2009) 3 SCC (Cri) 302], this Court in Vijayan v. Sadanandan K. [(2009) 6 SCC 652 : (2009) 3 SCC (Cri) 296], after noticing the provision of Sections 421 and 431 CrPC, which dealt with mode of recovery of fine and Section 64 IPC, which empowered the courts to provide for a sentence of imprisonment on default of payment of fine, the Court stated: (Vijayan case [(2009) 6 SCC 652 : (2009) 3 SCC (Cri) 296], SCC p. 658, para 24) "24. We have carefully considered the submissions made on behalf of the respective parties. Since a decision on the question raised in this petition is still in a nebulous state, there appear to be two views as to whether a default sentence of imprisonment can be imposed in cases where compensation is awarded to ::: Downloaded on - 08/07/2025 21:27:53 :::CIS P a g e | 55 2025:HHC:21735 the complainant under Section 357(3) CrPC. As pointed out by Mr Basant in Dilip S. Dahanukar case [(2007) 6 SCC 528 : (2007) 3 SCC (Cri) 209], the distinction between a fine and compensation as .
understood under Section 357(1)(b) and Section 357(3) CrPC had been explained, but the question as to whether a default sentence clause could be made in respect of compensation payable under Section 357(3) CrPC, which is central to the decision in this case, had not been considered."
The Court further held: (Vijayan case [(2009) 6 SCC 652:
(2009) 3 SCC (Cri) 296], SCC p. 659, paras 31-32) "31. The provisions of Sections 357(3) and 431 CrPC, when read with Section 64 IPC, empower the court, while making an order for payment of compensation, to also include a default sentence in case of non-
payment of the same.
32. The observations made by this Court in Hari Singh case [(1988) 4 SCC 551: 1988 SCC (Cri) 984: AIR 1988 SC 2127] are as important today as they were when they were made and if, as submitted by Dr. Pillay, recourse can only be had to Section 421 CrPC for enforcing the same, the very object of sub-section (3) of Section 357 would be frustrated and the relief contemplated therein would be rendered somewhat illusory."
24. In Shantilal v. State of M.P. [(2007) 11 SCC 243 : (2008) 1 SCC (Cri) 1], it is stated that the sentence of imprisonment for default in payment of a fine or compensation is different from a normal sentence of imprisonment. The Court also delved into the factors to be taken into consideration while passing an order under Section 357(3) CrPC. This Court stated: (SCC pp. 255-56, para 31) "31. ... The term of imprisonment in default of payment of a fine is not a sentence. It is a penalty which a person incurs on account of non-payment of a fine. The sentence is something which an offender must undergo unless it is set aside or remitted in part ::: Downloaded on - 08/07/2025 21:27:53 :::CIS P a g e | 56 2025:HHC:21735 or in whole, either in appeal or in revision or other appropriate judicial proceedings, or 'otherwise'. A term of imprisonment ordered in default of payment of a fine stands on a different footing. A person is .
required to undergo imprisonment either because he is unable to pay the amount of fine or refuse to pay such amount. He, therefore, can always avoid undergoing imprisonment in default of payment of the fine by paying such amount. It is, therefore, not only the power but the duty of the court to keep in view the nature of the offence, circumstances under which it was committed, the position of the offender and other relevant considerations before ordering the offender to suffer imprisonment in default of payment of a fine." (emphasis in original)
25. In Kuldip Kaur v. Surinder Singh [(1989) 1 SCC 405: 1989 SCC (Cri) 171: AIR 1989 SC 232], in the context of Section 125 CrPC observed that sentencing a person to jail is sometimes a mode of enforcement. In this regard, the Court stated:
(SCC p. 409, para 6) "6. A distinction has to be drawn between a mode of enforcing recovery on the one hand and effecting actual recovery of the amount of monthly allowance which has fallen in arrears on the other. Sentencing a person to jail is a 'mode of enforcement'. It is not a 'mode of satisfaction' of the liability. The liability can be satisfied only by making actual payment of the arrears. The whole purpose of sending to jail is to oblige a person liable to pay the monthly allowance who refuses to comply with the order without sufficient cause, to obey the order and to make the payment. The purpose of sending him to jail is not to wipe out the liability which he has refused to discharge. It should also be realised that a person ordered to pay a monthly allowance can be sent to jail only if he fails to pay the monthly allowance 'without sufficient cause' to comply with the order. It would indeed be strange to hold that a person who, without ::: Downloaded on - 08/07/2025 21:27:53 :::CIS P a g e | 57 2025:HHC:21735 reasonable cause, refuses to comply with the order of the court to maintain his neglected wife or child would be absolved of his liability merely because he prefers to go to jail. A sentence of jail is no substitute .
for the recovery of the amount of monthly allowance which has fallen in arrears."
26. From the above line of cases, it becomes very clear that a sentence of imprisonment can be granted for default in payment of compensation awarded under Section 357(3) CrPC. The whole purpose of the provision is to accommodate the interests of the victims in the criminal justice system. Sometimes the situation becomes such that there is no purpose served by keeping a person behind bars. Instead, directing the accused to pay an amount of compensation to the victim or affected party can ensure the delivery of total justice. Therefore, this grant of compensation is sometimes in lieu of sending a person behind bars or in addition to a very light sentence of imprisonment. Hence, in default of payment of this compensation, there must be a just recourse. Not imposing a sentence of imprisonment would mean allowing the accused to get away without paying the compensation, and imposing another fine would be impractical, as it would mean imposing a fine upon another fine and therefore would not ensure proper enforcement of the order of compensation. While passing an order under Section 357(3), it is imperative for the courts to look at the ability and the capacity of the accused to pay the same amount as has been laid down by the cases above; otherwise, the very purpose of granting an order of compensation would stand defeated.
63. This position was reiterated in R. Mohan v. A.K. Vijaya Kumar, (2012) 8 SCC 721: (2012) 4 SCC (Civ) 585: (2012) 3 SCC (Cri) 1013: 2012 SCC OnLine SC 486 wherein it was observed at page 729:
29. The idea behind directing the accused to pay compensation to the complainant is to give him immediate ::: Downloaded on - 08/07/2025 21:27:53 :::CIS P a g e | 58 2025:HHC:21735 relief so as to alleviate his grievance. In terms of Section 357(3), compensation is awarded for the loss or injury suffered by the person due to the act of the accused for which he is sentenced. If merely an order directing .
compensation is passed, it would be totally ineffective. It could be an order without any deterrence or apprehension of immediate adverse consequences in case of its non-
observance. The whole purpose of giving relief to the complainant under Section 357(3) of the Code would be frustrated if he is driven to take recourse to Section 421 of the Code. An order under Section 357(3) must have the potential to secure its observance. Deterrence can only be infused into the order by providing for a default sentence. If Section 421 of the Code puts compensation ordered to be paid by the court on a par with the fine so far as the mode of recovery is concerned, then there is no reason why the court cannot impose a sentence in default of payment of compensation as it can be done in case of default in payment of fine under Section 64 IPC. It is obvious that in view of this, in Vijayan [(2009) 6 SCC 652: (2009) 3 SCC (Cri) 296], this Court stated that the abovementioned provisions enabled the court to impose a sentence in default of payment of compensation and rejected the submission that the recourse can only be had to Section 421 of the Code for enforcing the order of compensation. Pertinently, it was made clear that observations made by this Court in Hari Singh [(1988) 4 SCC 551: 1988 SCC (Cri) 984] are as important today as they were when they were made. The conclusion, therefore, is that the order to pay compensation may be enforced by awarding a sentence in default.
30. In view of the above, we find no illegality in the order passed by the learned Magistrate and confirmed by the Sessions Court in awarding a sentence in default of payment of compensation. The High Court was in error in setting aside the sentence imposed in default of payment of compensation.
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64. Thus, there is no infirmity in imposing the sentence of imprisonment in case of default in the payment of compensation.
.
65. No other point was urged.
66. In view of the above, the present revision fails, and the same is dismissed.
67. Records of the learned Courts below be sent back r to forthwith, along with a copy of this judgment.
(Rakesh Kainthla) Judge 8th July, 2025 (ravinder) ::: Downloaded on - 08/07/2025 21:27:53 :::CIS