Himachal Pradesh High Court
Date Of Decision: 07.04.2026 vs Shri Narain Singh (Deceased) Through ... on 7 April, 2026
Author: Sandeep Sharma
Bench: Sandeep Sharma
2026:HHC:10760
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No.617 of 2025
Date of Decision: 07.04.2026
__________________________________________________________________________
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Sh. Nitin Chauhan .........Petitioner
Versus
Shri Narain Singh (deceased) through LRs .......Respondents
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?
of
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For the Petitioner: Mr. Rajat Kumar, Advocate.
For the Respondents: Mr. Pankaj Sawant, Advocate.
__________________________________________________________________________
rt
Sandeep Sharma, J. (Oral)
Instant criminal revision petition filed under Section 438 read with Section 442 of the Bharatiya Nagrik Suraksha Sanhita, 2023, lays challenge to judgment dated 22.01.2025, passed by the learned Additional Sessions Judge, Rohru, Camp at Theog, District Shimla, Himachal Pradesh, in Criminal Appeal No.9 of 2024, titled Nitin Chauhan Vs. Narain Singh, affirming judgment of conviction and order of sentence dated 01.10.2022/19.10.2022, passed by the learned Additional Chief Judicial Magistrate, Theog, District Shimla, Himachal Pradesh, in complaint No.154/3 of 2016, whereby the learned trial Court while holding the petitioner-accused (hereinafter, "accused") guilty of having committed offence punishable under Section 138 of the Negotiable Instruments Act (in short the "Act"), convicted and sentenced him to undergo simple ::: Downloaded on - 07/04/2026 20:34:22 :::CIS 2026:HHC:10760 2 imprisonment for a period of one year and pay compensation to the tune of Rs.2,00,000/- to the respondent-complainant.
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2. Precisely, the facts of the case, as emerge from the record are that respondent-complainant (hereinafter, 'complainant') instituted a complaint under Section 138 of the Act, in the competent Court of law, alleging therein that in the month of October 2015, accused purchased of apple boxes from him for a total consideration of ₹1,04,400/-. With a view to make the payment of aforesaid consideration, accused issued Cheque bearing No.804214 dated 07.10.2015, drawn on PNB Bank, Branch rt Mauhri, District Shimla, amounting to ₹1,04,400/-. However, fact remains that afore Cheque on its presentation to the Bank concerned, was dishonoured with the remarks "Funds Insufficient". After receipt of aforesaid return memo, complainant served accused with a legal notice calling upon him to make the payment good well within stipulated time.
However, since petitioner-accused failed to make the payment good within the time stipulated in the legal notice, respondent/complainant was compelled to initiate proceedings under Section 138 of the Act in the Court of learned Additional Chief Judicial Magistrate, Theog, District Shimla, Himachal Pradesh.
3. Learned trial Court on the basis of material adduced on record by the respective parties, vide judgment/order dated 01.10.2022/19.10.2022, held the petitioner-accused guilty of having ::: Downloaded on - 07/04/2026 20:34:22 :::CIS 2026:HHC:10760 3 committed offence under Section 138 of the Act and accordingly, convicted and sentenced him, as per the description given hereinabove.
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4. Though, at the first instance, accused preferred an appeal in the Court of learned Additional Sessions Judge, Rohru, Camp at Theog, District Shimla, Himachal Pradesh, however, same was dismissed vide judgment dated 22.01.2025. In the aforesaid background, petitioner-
of accused has approached this Court by way of instant proceedings, seeking therein his acquittal after setting aside the judgments of conviction recorded by the Courts below.
rt
5. Vide order dated 13.10.2025, Co-ordinate Bench of this Court stayed the substantive sentence imposed by the learned Court below, subject to petitioner/accused depositing 30% of the compensation amount and furnishing personal bonds in the sum of Rs.50,000/-, however, fact remains that despite repeated opportunities, aforesaid order was never complied with. Matter was lastly adjourned on 02.03.2026, on which date, on the vehement vehement request of learned counsel representing the petitioner and by way of indulgence, this Court granted last opportunity to petitioner to comply with the order dated 13.10.2025 and deposit the compensation amount, but nothing has been done till date and as such, this Court is compelled to decide the petition on its own merits.
6. Having heard learned counsel for the parties and perused material adduced on record, vis-a-vis reasoning assigned in the impugned ::: Downloaded on - 07/04/2026 20:34:22 :::CIS 2026:HHC:10760 4 judgments, this Court sees no reason to agree with Mr. Rajat Kumar, learned counsel representing the petitioner, that Courts below have fallen .
in grave error while appreciating the evidence, rather this Court finds that both the Courts below have meticulously dealt with each and every aspect of the matter and there is no scope left for interference.
7. Though, Mr. Kumar, learned counsel representing the of petitioner, while making this Court peruse evidence adduced on record, attempted to argue that both the Courts below failed to appreciate the evidence in its right perspective, but such submission of his deserves rt outright rejection, being contrary to the record. In his statement recorded under Section 313 Cr.P.C., petitioner-accused denied the case of the complainant in toto and claimed that he has been falsely implicated. He stated that he paid the entire consideration amount to the complainant, but yet security Cheque issued by him has been misused. Though opportunity to lead the evidence was afforded to the accused, but he failed to avail the same. Since in the case at hand, factum with regard to issuance of Cheque as well as his signatures thereupon is not in dispute, no illegality can be said to have been committed by both the Courts below while invoking Sections 118 and 139 of the Act, which speak about presumption in favour of the holder of the Cheque that Cheque was issued towards discharge of a lawful liability. No doubt, aforesaid presumption is rebuttable, but to rebut such presumption, accused either can refer to the ::: Downloaded on - 07/04/2026 20:34:22 :::CIS 2026:HHC:10760 5 documents and evidence led on record by the complainant or presumption can be rebutted by leading positive evidence, if any. However, in the case at .
hand, accused was unable to point out from the documents as well as evidence adduced on record by the complainant that Cheque issued by him was not issued towards discharge of lawful liability.
8. The Hon'ble Apex Court in M/s Laxmi Dyechem V. State of of Gujarat, 2013(1) RCR(Criminal), has categorically held that if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail.
rt To raise probable defence, accused can rely on the materials submitted by the complainant. Needless to say, if the accused/drawer of the Cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability, statutory presumption under Section 139 of the Negotiable Instruments Act, regarding commission of the offence comes into play. It would be profitable to reproduce relevant paras No.23 to 25 of the judgment herein:-
"23. Further, a three judge Bench of this Court in the matter of Rangappa vs. Sri Mohan [3] held that Section 139 is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies the strong criminal remedy in relation to the dishonour of the cheques, the rebuttable presumption under Section 139 is a device to ::: Downloaded on - 07/04/2026 20:34:22 :::CIS 2026:HHC:10760 6 prevent undue delay in the course of litigation. The Court however, further observed that it must be remembered that the offence made punishable by Section 138can be .
better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose money is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses of and the defendant accused cannot be expected to discharge an unduly high standard of proof". The Court further observed that it is a settled position that when an rt accused has to rebut the presumption under Section 139, the standard of proof for doing so is all preponderance of probabilities.
24. Therefore, if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is inconceivable that in some cases the accused may not need to adduce the evidence of his/her own. If however, the accused/drawer of a cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability, obviously statutory presumption under Section 139 of the NI Act regarding commission of the offence comes into play if the same is not rebutted with regard to the materials submitted by the complainant.::: Downloaded on - 07/04/2026 20:34:22 :::CIS
2026:HHC:10760 7
25. It is no doubt true that the dishonour of cheques in order to qualify for prosecution under Section 138 of the NI Act precedes a statutory notice where the drawer is .
called upon by allowing him to avail the opportunity to arrange the payment of the amount covered by the cheque and it is only when the drawer despite the receipt of such a notice and despite the opportunity to make the payment within the time stipulated under the statute does not pay the amount, that the said default would be considered a of dishonour constituting an offence, hence punishable. But even in such cases, the question whether or not there was lawfully recoverable debt or liability for discharge whereof rtthe cheque was issued, would be a matter that the trial court will have to examine having regard to the evidence adduced before it keeping in view the statutory presumption that unless rebutted, the cheque is presumed to have been issued for a valid consideration. In view of this the responsibility of the trial judge while issuing summons to conduct the trial in matters where there has been instruction to stop payment despite sufficiency of funds and whether the same would be a sufficient ground to proceed in the matter, would be extremely heavy."
9. In the case at hand, complainant examined himself as CW1 and tendered evidence by way of affidavit Ex.CW1/A, reiterating therein averments contained in the complaint. Apart from above, he also tendered documentary evidence such as Cheque Ex.C1, dishonour memo Ex.C2, legal notice Ex.C3 and postal receipt Ex.C4. In his cross-examination, he categorically deposed that he had sold more than 100 apple boxes of royal ::: Downloaded on - 07/04/2026 20:34:22 :::CIS 2026:HHC:10760 8 variety to the accused. He stated that accused had not issued any Parchha.
He stated that no payment was made to him on the date of selling the .
apples. He denied the suggestion put to him that accused gave him blank Cheque on the date of sale of apples. He also denied that despite his having received the entire consideration amount, he did not return the Cheque and misused the same. If cross-examination conducted upon this witness is of perused in its entirety, it can be safely concluded that accused was unable to extract anything contrary to what this witness stated in his examination-
in-chief. rt
10. Though accused denied factum of his having issued the Cheque as well as his signatures thereupon, but pattern of cross-
examination conducted upon the complainant itself suggests that Cheque in question was issued towards discharge of lawful liability and it also bears his signatures. Accused also admitted factum of his having purchased apple boxes from the complainant, but he claimed that he had made the payment within a period of ten days, but yet complainant, who had obtained the Cheque as a security, misused the same. However, accused was not able to probabilise aforesaid defence by leading cogent and convincing evidence. Similarly, accused by way of taking defence of issuance of Cheque as security, virtually accepted factum of his having issued the Cheque as well as his signatures thereupon and as such, both the Courts below rightly held accused guilty of the offence punishable ::: Downloaded on - 07/04/2026 20:34:22 :::CIS 2026:HHC:10760 9 under Section 138 of the Act, especially when Cheque in question issued by him was dishonoured on account of insufficient funds.
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11. Though, defence came to be taken at the behest of the petitioner/accused that Cheque in question was issued as a security, but the same may not be of any help to the accused, for the reason that by now, it is well-settled that Cheque, even if issued as a 'security' can also be of presented for encashment, if amount taken or promised to be repaid is not paid.
12. Hon'ble Apex Court in case titled Sripati Singh v. State of rt Jharkhand, Criminal Appeal No. 1269-1270 of 2021, decided on 28.10.2021, has held as under:
"16. A cheque issued as security pursuant to a financial transaction cannot be considered as a worthless piece of paper under every circumstance. 'Security' in its true sense is the state of being safe and the security given for a loan is something given as a pledge of payment. It is given, deposited or pledged to make certain the fulfilment of an obligation to which the parties to the transaction are bound. If in a transaction, a loan is advanced and the borrower agrees to repay the amount in a specified timeframe and issues a cheque as security to secure such repayment; if the loan amount is not repaid in any other form before the due date or if there is no other understanding or agreement between the parties to defer the payment of amount, the cheque which is issued as security would mature for presentation and the drawee of the cheque would be entitled to present the same. On such presentation, if the same is dishonoured, the ::: Downloaded on - 07/04/2026 20:34:22 :::CIS 2026:HHC:10760 10 consequences contemplated under Section 138 and the other provisions of N.I. Act would flow."
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13. Needless to say, expression "Security cheque" is not a statutorily defined expression in the Negotiable Instruments Act, rather same is to be inferred from the pleadings as well as evidence, if any, led on record with regard to issuance of security cheque. The Negotiable of Instruments Act does not per se carve out an exception in respect of a "security cheque" to say that a complaint in respect of such a cheque would not be maintainable as there is a debt existing in respect whereof the rt cheque in question is issued, same would attract provision of Section 138 of the Act in case of its dishonour.
14. Having scanned the entire evidence adduced on record by the respective parties, this Court finds that all the basic ingredients of Section 138 of the Act are met in the case at hand. Since Cheque issued by accused towards discharge of his lawful liability was returned on account of insufficient funds in the bank account of accused and he despite having received legal notice failed to make the payment good within the stipulated time, complainant had no option but to institute proceedings under Section 138 of the Act, which subsequently rightly came to be decided by both the Courts below on the basis of pleadings as well as evidence adduced on record by the respective parties.
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15. Moreover, this Court has a very limited jurisdiction under Section 397 of the Cr.P.C to re-appreciate the evidence, especially in view of .
the concurrent findings of fact and law relied upon by the Courts below. In this regard, reliance is placed upon the judgment passed by Hon'ble Apex Court in case "State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri" (1999) 2 Supreme Court Cases 452, wherein it has been held of as under:-
"In its revisional jurisdiction, the High Court can call for and rtexamine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice."
16. Since after having carefully examined the evidence in the present case, this Court is unable to find any error of law as well as fact, if any, committed by the Courts below, while passing impugned judgments, there is no occasion, whatsoever, to exercise the revisional power.
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17. True it is that the Hon'ble Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court .
Case 241; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct of irregularities/incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order, but learned counsel representing the accused has failed to point out any material irregularity rt committed by the Courts below while appreciating the evidence and as such, this Court sees no reason to interfere with the well reasoned judgments passed by the Courts below.
18. Consequently, in view of the discussion made hereinabove as well as law laid down by the Hon'ble Apex Court, this Court sees no valid reason to interfere with the well reasoned judgments recorded by the Courts below, which otherwise, appear to be based upon proper appreciation of evidence available on record and as such, same are upheld.
19. Accordingly, the present criminal revision petition is dismissed being devoid of any merit. The petitioner is directed to surrender himself before the learned trial Court within a period of 15 days to serve the sentence as awarded by the learned trial Court, if not already served. Bail bonds of the petitioner, if any, are cancelled. Interim order dated ::: Downloaded on - 07/04/2026 20:34:22 :::CIS 2026:HHC:10760 13 13.10.2025 stands vacated. Pending applications, if any, also stand disposed of.
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(Sandeep Sharma), Judge April 07, 2026 (Rajeev Raturi) of rt ::: Downloaded on - 07/04/2026 20:34:22 :::CIS