Himachal Pradesh High Court
Reserved On: 24.11.2025 vs Mohar Singh on 17 December, 2025
2025:HHC:43996
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 276 of 2025
Reserved on: 24.11.2025
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Date of Decision: 17.12.2025
Durga Singh ...Petitioner
Versus
Mohar Singh ...Respondent
of
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
rt
Whether approved for reporting?1 No.
For the Petitioner : Ms Parul Negi, Advocate.
For the Respondent : Mr J.P. Sharma, Advocate.
Rakesh Kainthla, Judge
The present revision is directed against the judgment dated 29.3.2025, passed by learned Sessions Judge, Rampur Bushehr, District Shimla, H.P., (learned Appellate Court) vide which the judgment of conviction and order of sentence dated 1.9.2023, passed by learned Judicial Magistrate First Class, Ani, District Kullu, HP (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.) 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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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 were known to each other. The of accused borrowed ₹5.00 lacs from the complainant on 25.8.2016.
He issued a cheque of ₹5.00 lacs drawn on ICICI Bank, Rampur rt Bushehr, District Shimla, HP, to discharge his liability. The complainant presented the cheque for encashment, but it was dishonoured with an endorsement 'insufficient funds'. The complainant served a notice upon the accused on 21.10.2017 asking him to repay the amount, but he failed to do so. Hence, a complaint was filed before the learned Trial Court for taking action against the accused 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.
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4. The complainant examined Rakesh Kumar (CW1), himself (CW2) and Neena Verma (CW3) to prove his complaint.
5. The accused, in his statement recorded under Section .
313 of the Cr.PC denied the complainant's case in its entirety. He examined himself (DW1) and Sher Singh (DW2) to prove his defence.
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6. The learned Trial Court held that the accused admitted his signature on the cheque. Thus, a presumption would arise that rt the cheque was issued by the accused to discharge the debt/ liability. The burden would shift upon the accused to rebut the presumption. The accused failed to rebut the presumption. The cheque was dishonoured with an endorsement 'insufficient funds'.
The accused failed to repay the amount despite the service of the notice. Hence, 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 and pay compensation of ₹5.00 lacs and in default of payment of compensation to undergo simple imprisonment for six months.
7. Being aggrieved by the judgment and order passed by the learned Trial Court, the accused filed an appeal, which was decided by learned Sessions Judge, Rampur Bushehr, District ::: Downloaded on - 17/12/2025 20:37:27 :::CIS 4 2025:HHC:43996 Shimla, H.P. (learned Appellate Court). Learned Appellate Court concurred with the findings recorded by the learned Trial Court that the admission of the signatures on the cheque would trigger .
the presumption that it was issued to discharge the debt/liability.
The accused claimed that he had issued the cheque to Tarsem, but he did not examine Tarsem to prove this fact. Therefore, the of accused had failed to discharge the burden placed upon him. The cheque was dishonoured with an endorsement 'insufficient rt funds', and the accused had failed to repay the money despite the receipt of notice of demand. The sentence imposed by the learned Trial Court was adequate, and no interference was required with the judgment and order passed by the learned Trial Court. Hence, the appeal was dismissed.
8. Being aggrieved by the judgments and order passed by the learned Courts below, the accused has filed the present revision, asserting that the learned Courts below failed to properly appreciate the material on record. The ingredients of the commission of the offence punishable under Section 138 of the NI Act were not satisfied. The defence evidence proved that the cheque was issued in favour of Tarsem, who had misused it. The complainant had produced a computer-generated print of the ::: Downloaded on - 17/12/2025 20:37:27 :::CIS 5 2025:HHC:43996 return memo, which was not admissible. Therefore, it was prayed that the present revision be allowed and the judgments and order passed by the learned Courts below be set-aside.
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9. I have heard Ms Parul Negi, learned counsel for the petitioner/accused, and Mr J.P. Sharma, learned counsel for the respondent/complainant.
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10. Ms Parul Negi, learned counsel for the petitioner/accused, submitted that the learned Courts below did rt not appreciate that the memo of dishonour did not have any signatures, and it is inadmissible in evidence. Learned Courts below erred in relying upon the document. Therefore, she prayed that the present revision be allowed and the judgments and order passed by the learned Courts below be set-aside. She relied upon the judgment of this Court in Het Ram Chauhan Vs. Rajender Prasad Sonkar 2025:HHC:22352 in support of her submission.
11. Mr J.P. Sharma, learned counsel for the respondent/complainant, submitted that the complainant filed an application for leading additional evidence to prove the contents of the cheque returning memo. The accused did not raise any objection when the document was being exhibited, and he cannot raise this objection before this Court. Learned Courts below have ::: Downloaded on - 17/12/2025 20:37:27 :::CIS 6 2025:HHC:43996 concurrently found the accused to be guilty, and this Court should not interfere with the concurrent findings of fact recorded by the learned Courts below. Hence, he prayed that the present revision .
be dismissed. He has also filed a written synopsis, which has been perused by me.
12. I have given considerable thought to the submissions of made at the bar and have gone through the records carefully.
Cr. MP No. 4293 of 2025rt
13. Before adverting to the merits of the present petition, it is necessary to dispose of the application filed for leading additional evidence. It has been asserted that the applicant/complainant produced the documents provided by the Bank to him; however, the bank official was not examined to prove the contents of the cheque returning memo. His examination is essential to adjudicate the controversy in the present matter. No prejudice would be caused to the other side. The document was not with the applicant could not be produced on record despite the exercise of due diligence. Therefore, it was prayed that the present application be allowed and the additional evidence be taken on record.
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14. The application was opposed by filing a reply making preliminary submission regarding the application having been filed belatedly to fill up the lacuna left by the applicant. It was .
asserted on merits that no reason for the non-examination of the Bank official has been assigned. The application has been filed to fill up the lacuna and should not be allowed. Therefore, it was of prayed that the present application be dismissed.
15. The application does not mention why the Bank official rt was not examined before the learned Trial Court. It was submitted that the document was not within the knowledge of the applicant, but it is factually incorrect because the copy of the cheque returning memo (Ex.CW2/G) was filed along with the complaint.
16. It was asserted in the written synopsis that the complainant examined the Bank official Rakesh Kumar (CW1), who proved that the cheque was dishonoured due to insufficient funds in the account of the accused. Therefore, the averment that the evidence was within the knowledge of the applicant and could not be produced despite the exercise of due diligence is incorrect.
17. 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 ::: Downloaded on - 17/12/2025 20:37:27 :::CIS 8 2025:HHC:43996 additional evidence. Section 311 deals with the trial, while Section 391 deals with the appeal. The Appellate Court can examine the evidence, but it does not possess the wide powers conferred upon .
the 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 of 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 rt 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 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."
18. 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 of Cr.P.C. cannot be used for retrial. The order should ::: Downloaded on - 17/12/2025 20:37:27 :::CIS 9 2025:HHC:43996 not be made if the party had sufficient opportunities and had not availed those opportunities. 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 of 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 rt 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.
(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 ::: Downloaded on - 17/12/2025 20:37:27 :::CIS 10 2025:HHC:43996 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 of before this Court in 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 rt 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) "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 ::: Downloaded on - 17/12/2025 20:37:27 :::CIS 11 2025:HHC:43996 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 of 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 rt otherwise."
25. This Court again, in Rambhau v. State of Maharashtra, (2001) 4 SCC 759: 2001 SCC (Cri) 812, had noted the power under Section 391 CrPC of the appellate court. The following was stated in paras 1 and 2 : (SCC p. 761)
1. There is available a very wide discretion is 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 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., 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 ::: Downloaded on - 17/12/2025 20:37:27 :::CIS 12 2025:HHC:43996 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)
19. This position was reiterated in State (NCT of Delhi) v.
of 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 rt exercised to fill up the gaps by the either side and especially to 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."
20. 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:
::: Downloaded on - 17/12/2025 20:37:27 :::CIS 132025:HHC:43996 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 of 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 rt statutory notice on record to prove the same as well. In this case, this document was not even filed by the respondent 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."
21. 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 ::: Downloaded on - 17/12/2025 20:37:27 :::CIS 14 2025:HHC:43996 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 the same process remove her spectacles and by computer of 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 rt of the dead body. We have seen both the images, and we are not 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."
22. 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."::: Downloaded on - 17/12/2025 20:37:27 :::CIS 15
2025:HHC:43996
23. In the present case, the applicant/complainant could have examined the Bank Official before the learned Trial Court;
hence, the requirement of Section 391 of Cr.P.C. corresponding to .
Section 442 of Bhartiya Nagrik Suraksha Sanhita, 2023 (BNSS) is not satisfied, and the application is dismissed.
Cr. Revision No. 276 of 2025of
24. It was laid down by the Hon'ble Supreme Court in Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204: (2022) rt 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 that 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 - 17/12/2025 20:37:27 :::CIS 16
2025:HHC:43996
25. 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:
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"14. The power and jurisdiction of the Higher Court under Section 397 CrPC, 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 of 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 rt Court in 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 merely indicative. Each case would have to be determined on its own merits.
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13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the .
exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in the exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even the framing of the charge is a of much-advanced stage in the proceedings under CrPC."
26. It was held in Kishan Rao v. Shankargouda, (2018) 8 SCC rt 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 at page 169:
"12. This Court has time and again examined the scope of Sections 397/401 CrPC and the grounds for exercising the revisional jurisdiction by the High Court. In 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 would not be ::: Downloaded on - 17/12/2025 20:37:27 :::CIS 18 2025:HHC:43996 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 amount 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. ..."
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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 rt 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 ::: Downloaded on - 17/12/2025 20:37:27 :::CIS 19 2025:HHC:43996 revised, is shown to be perverse or untenable in law 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."
27. This position was reiterated in Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197: (2019) 2 SCC (Cri) 40: (2019) 2 SCC (Civ) of 309: 2019 SCC OnLine SC 13, wherein it was observed at page 205:
"16. It is well settled that in the exercise of revisional rt 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, (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."
28. A similar view was taken in Sanjabij Tari v. Kishore S. Borcar, 2025 SCC OnLine SC 2069, wherein it was observed:
"27. It is well settled that in exercise of revisional jurisdic- tion, the High Court does not, in the absence of perversity, upset concurrent factual findings [See: Bir Singh(supra)]. This Court is of the view that it is not for the Revisional Court to re-analyse and re-interpret the evidence on record. As held by this Court in Southern Sales & Services v. Sauer- milch Design and Handels GMBH,(2008) 14 SCC 457, it is a well-established principle of law that the Revisional Court ::: Downloaded on - 17/12/2025 20:37:27 :::CIS 20 2025:HHC:43996 will not interfere, even if a wrong order is passed by a Court having jurisdiction, in the absence of a jurisdictional error.
28. Consequently, this Court is of the view that in the ab- sence of perversity, it was not open to the High Court in the present case, in revisional jurisdiction, to upset the concur-
.
rent findings of the Trial Court and the Sessions Court.
29. The present revision has to be decided as per the parameters laid down by the Hon'ble Supreme Court.
30. The complainant relied upon the memo of dishonour of (Ex.CW2/G) to prove that the cheque was dishonoured with an endorsement 'insufficient funds'. The cheque was drawn on ICICI rt Bank. The memo of dishonour was issued by Punjab National Bank. It contains an endorsement: "This is computer-generated advice, which does not require signatures.
31. It was laid down by this Court in Rajinder Singh Verma vs. B.K. Hanchnmani (30.04.2019 - HPHC): MANU/HP/0437/2019 that a computer-generated memo of dishonour not having the official seal is inadmissible. It was observed: -
"9. Even if, assumingly, the complainant may, upon recourse to an appropriate remedy, be cast under the provisions of Section 45 of the Indian Evidence Act, rather could therethrough strive to prove the afore-mentioned cheque, borne in Ex. CW1/A, carrying the authentic signatures of the accused, (a) and, thereafter it, was permissible for the complainant, to rely upon the statutory provisions, cast under the provisions of Section 139 of the Negotiable Instruments Act, qua his holding it in discharge, of, a contractual or other legal liabilities, arising inter se ::: Downloaded on - 17/12/2025 20:37:27 :::CIS 21 2025:HHC:43996 him, and, the accused. Nonetheless, dehors, the aforecurative recoursings, for, hence, dispelling the effect of Ex. CW1/A, rather than being feigned, in the testification rendered hence by the complainant, to, hence assuredly contain the signatures of the accused, also, the mandate of .
Section 146 of the Negotiable Instrument Act, provisions whereof stand extracted hereinafter, was, also vis-a-vis, Ex. CW1/B, the purported return memo given, Ex. CW1/A, hence enjoined, to be cogently satiated.
"146. A bank's slip is prima facie evidence of certain facts. The Court shall, in respect of every proceeding of under this Chapter, on production of a bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact rt is disproved.
Even though, the court is statutorily empowered, to, qua the apposite return memo hence enunciating, the, declining to honour the negotiable instrument concerned, rather avail the apposite therewith presumption, as, engrafted therein, (a) yet the afore presumption would be aptly galvanized, upon, the memo evidently carrying thereon, the official mark, and, seal, of the bank concerned. However, the aforesaid presumption, as occurring therein, and, with a statutory coinage, "unless and until such fact is disproved", is rebuttable, only upon adduction into evidence, the return memo, (b) whereupon hence, it would also stand proven qua it not carrying the official mark or seal of the bank concerned. The evidence in consonance with the afore- mentioned statutory coinage, occurring in the last part of Section 146 of the N.I. Act is, prima facie, rather upsurging, given Ex. CW1/B evidently not carrying the seal or official mark of the bank concerned, (I) AND, with one Naresh Kumar, Accounts Officer from ICICI Bank, The Mall Shimla, upon his stepping into the witness box, rather showing his inability to bring the original of Ex. CW1/B, given that it not being traceable in the apposite records, (ii) and, when only on production, of the original in the Court of EX. CW1/B, and, evident existence thereon, of the afore statutorily ::: Downloaded on - 17/12/2025 20:37:27 :::CIS 22 2025:HHC:43996 mandated requirements, of it, hence carrying the official mark or seal of the bank concerned, would, hence enable, the, marshalling, of, the statutory presumption qua the apposite cheque being declined, to be honoured, to, rather hold the fullest conclusivity or sway, (iii) besides it would .
benumb any endeavour of the defence, to rely, upon the afore statutory coinage, occurring in the last part of Section 146 of the N.I. Act, (iv) reiteratedly for want of production of the original of Ex. CW1/B, this court is constrained to conclude, qua the statutory requirement of Ex. CW1/B on its presentation, for its being honoured, hence, being declined to be honoured, rather remaining, within the ambit of of Section 146 of the N;l. Act, to be hence, disproven.
32. Madhya Pradesh High Court has also held in Satyendra rt Tiwari v. State of M.P., 2014 SCC OnLine MP 6786: ILR 2014 MP 1679:
(2014) 3 MP LJ 574 that when the memo of dishonour does not bear the banker's seal, the same is not valid. It was observed at page 1685: -
"Endorsement Memo
29. Another reason given by the learned court to acquit the accused was that the complainant failed to prove the submission of the cheque (Ex. P-1) in the bank.
30. When a cheque is drawn by a person on an account maintained by him for payment of any amount or discharge of liability or debt and is returned by the bank with endorsement like (i) refer to drawer, (ii) exceeds arrangement, (iii) instruction for stoppage of payment; (iv) fund insufficient and like other usual endorsements, it amounts to dishonour within the meaning of section 138 of the N.I. Act.
31. Cheque to be presented within six months from the date of the cheque to the bank on which it was drawn, and if it is presented beyond that time complaint is not maintainable. In this case in hand, the cheque (Ex.P-1) was presented within time.
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32. In fact, the learned trial Court initially committed a grave mistake while issuing a summons for the appearance of the accused on the assumption that the case had been disclosed, while the banker's seal was totally missing from the banker's written memo; in such circumstances, the .
summons was not required to issue against the accused.
33. Learned trial Court after scrutinising the statement of the complainant in this regard and after examining the cheque (Ex. P-1) with returning endorsement (Ex. P-2), found that there is a lack of a banker's seal on the endorsement memo (Ex. P-2).
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34. It is pertinent to mention here that even after committing initial error learned trial Court given appropriate opportunity to the complainant to examine Manager or any authorized Officer of the Punjab and Sindh rt Bank, the Banker's who returned the Cheque (Ex.P.-1) vide their endorsement memo (Ex.P.-2) under the caption "Fund Insufficient", but the complainant fail to comply. In such a situation, endorsement memo (Ex.P.-2) has no evidentiary value as a public document, but a mere piece of paper."
33. It was held in Krishnapal v. Hari Singh, 2024 SCC OnLine MP 2516, that the Bank is required to prove the seal and the signatures on the cheque returning memo as per the guidelines issued by the RBI, and in the absence of the seal and the signatures, the memo does not carry a presumption under Section 146 of the NI Act. It was observed: -
"5. Having gone through the record, it is found that the said document Ex-P/2 has no seal of the said bank and signature of the authority; therefore, it is in violation of guidelines issued by the Reserve Bank of India vide its letter No. RBI/2011-12/121 DPSS.CO. CHD NO. 120/03.06.01/2011-12 dated 25.07.2011. The said guidelines are required to be and are hereby reproduced hereunder:--::: Downloaded on - 17/12/2025 20:37:27 :::CIS 24
2025:HHC:43996 "RBI/2011-12/121 DPSS.CO. CHD.No. 120/03.06.01/2011-12 July 25, 2011 The Chairman and Managing Director/Chief Executive Officer .
All Scheduled Commercial Banks, including RRBs /Urban Co-operative Banks/State Co-operative Banks/ District Central Co-operative Banks Madam/Dear Sir, of Dishonour/Return of Cheques - Need to Sign/Initial the Cheque Return Memo rtPlease refer to our circular DPSS. CO. CHD. No. 485/03.06.01/2010-11 dated September 1, 2010 on Dishonour/Return of Cheques - Need to Mention the 'Date of Return' in the Cheque Return Memo, wherein citing the criticality of the document in case of recourse to legal action, it has been indicated that instruments returned unpaid should have a signed/initialed objection slip on which a definite and valid reason for refusing payment must be stated, as prescribed in Rule 6 of the Uniform Regulations and Rules for Bankers' Clearing Houses (URRBCH).
Certain instances of banks not signing the Cheque Return Memos stating that the Memos are computer- generated and therefore no signature is necessary have been brought to our notice. Such practices are a violation of instructions contained in Uniform Regulations and Rules for Bankers' Clearing Houses (URRBCH), which is issued under the Payment and Settlement Systems Act, 2007, read with Payment and Settlement Systems Regulations 2008.
Banks are, therefore, advised to strictly adhere to the instructions and sign/initial the Cheque Return Memos as laid down in Rule 6 of URRBCH.
Yours faithfully, ::: Downloaded on - 17/12/2025 20:37:27 :::CIS 25 2025:HHC:43996 (Pankaj Ekka) Deputy General Manager"
6. In view of the guidelines, it can be predicated that not signing the cheque return memo by the Bankers and .
issuing them without any signature will be a violation of the instructions contained in the uniform regulations and rules of bankers. Hence, the petitioner cannot benefit from the law laid down in Guneet Bhasin (Supra).
On this aspect, the learned trial Court, relying upon the judgment of this Court rendered in Satyendra Tiwari (Supra), opined that a dishonour memo of a bank of without a seal has no evidentiary value as a public document and it would be treated as only a mere piece of paper. The aforesaid law laid down in Satyendra Tiwari rt (Supra) still holds the field, hence the contentions of the petitioner as to accepting the endorsement memo (Ex. P/2) are evidently found without merit."
34. Bombay High Court held in Vandana v. Abhilasha, 2018 SCC OnLine Bom 2086: (2019) 2 Mah LJ 645: 2018 ACD 950: (2018) 4 Bom CR (Cri) 774 that a computer-generated document requires a certificate under Section 65(b)(4) and in the absence of the certificate, the memo is not admissible. It was observed at page 649: -
"9. In this context, section 146 of the aforesaid Act is relevant, which reads as follows:
"146. A bank's slip is prima facie evidence of certain facts.
-- The Court shall, in respect of every proceeding under this Chapter, on production of a bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved."
10. The said provision states the manner in which a complainant can prove dishonour of a cheque. The ::: Downloaded on - 17/12/2025 20:37:27 :::CIS 26 2025:HHC:43996 complainant is required to produce a slip or memo having an official mark on it, denoting that the cheque has been dishonoured. If such a document is placed on record by the complainant, it constitutes prima facie evidence of dishonour, and a presumption operates about the fact of the .
dishonour of the cheque, unless and until such fact is disproved. Thus, once such a memo or slip issued by the bank bearing its official mark concerning dishonour of a cheque is placed on record by the complainant, the burden is clearly on the accused to disprove the fact of dishonour of a cheque.
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11. But, there cannot be any doubt about the fact that section 146 of the said Act provides for one of the modes of proving dishonour of cheques, and it certainly cannot be the only mode of proving the same. In the present case, the rt memo purportedly issued by the bank showing dishonour of the cheque, admittedly, does not bear the official mark of the bank. It was for this reason that the said document was not exhibited during the evidence. Thus, the mode specified in section 146 of the said Act was not satisfied in the present case, and consequently, no presumption arose about the dishonour of the cheque in question. In such a situation, the appellant claims that the dishonour of the cheque was proved because a statutory notice was issued by her to the respondent. It was pointed out that specific pleadings were made in the complaint filed before the Court, stating dishonour of the said cheque, and that when the respondent had failed to adduce any evidence in support of her defence, the statements made by the appellant in this statutory notice and the complaint were enough to prove dishonour of the cheque. It was submitted that when there was no denial on the part of the respondent about the deposit and dishonour of the cheque in question, the trial Court could not have held that the appellant had failed to prove the fact of dishonour of the cheque. It was further contended that when the findings were rendered on the question of discharge of legal debt and it was found by the trial Court that the appellant had indeed advanced hand loan for the amount stated in the cheque to the respondent, there was ::: Downloaded on - 17/12/2025 20:37:27 :::CIS 27 2025:HHC:43996 no reason why the trial Court could have held that the fact of dishonour of cheque was not proved by the appellant.
12. While examining the said contentions raised on behalf of the appellant, it is necessary to keep in mind that the present case concerns criminal liability alleged against the .
respondent. Although proceedings under the aforesaid Act are quasi criminal in nature, the fact is that when the offence under section 138 of the said Act is said to have been proved, criminal liability is fixed upon the accused (respondent in the present case) and therefore, the evidence on record and the burden of proof have to be analyzed on of the touchstone of proof beyond reasonable doubt. The burden of proof clearly lies upon the appellant in the present case to prove basic facts that would constitute an offence under section 138 of the aforesaid Act. Under the rt said provision, the offence is deemed to have been committed the moment the cheque in question is returned by the bank unpaid. Therefore, it is necessary that there is proof of return or dishonour of the cheque in question before it can be said that an offence under section 138 of the Act has been committed.
13. When the complainant (appellant in the present case) asserted that the cheque was returned or dishonoured, it was for her to prove this basic fact, section 146 of the said Act provides that if the complainant places on record a slip or memo issued by the bank having official mark of the bank thereon, denoting that the cheque was dishonoured, it would be presumed that such cheque was dishonoured until such fact was disproved. Thus, if such a document were placed on record by the appellant in the present case, it would constitute prima facie evidence of dishonour of the cheque, and the burden would have been entirely on the respondent to disprove such a fact. But, when the memo produced in the present case by the appellant did not bear the official mark of the bank, there was no document as contemplated under section 146 of the said Act to presume that the fact of dishonour of the cheque had been proved by the appellant. The burden continued to lie on the appellant to prove the basic fact of dishonour of the cheque, in the facts and circumstances of the present case.
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14. In such a situation, a mere statement made in the statutory notice and the complaint filed before the Court would not constitute proof of dishonour of the cheque, unless further evidence to corroborate the same was placed on record on behalf of the appellant. The appellant is not .
justified in claiming that such statements would suffice as proof of dishonour of the cheque because the respondent failed to enter the witness box in support of her defence. As the complainant, it was for the appellant to prove the fact of dishonour of the cheque by cogent evidence. The appellant could have examined the bank official to prove that the cheque had indeed been dishonoured, but she failed to do of so.
15. The appellant could have placed on record a certificate contemplated under section 65-B of the Indian Evidence rt Act, 1872, in respect of the memo of the Bank, which was allegedly a computer-generated electronic record. But no such evidence was placed on record. The trial Court has also held that there was a lack of evidence to show even the deposit of the cheque because the deposit slip was not placed on record by the appellant. But, a perusal of the cheque in question (Exhibit-21) does show that the stamp of the bank in which the cheque was deposited is very much present on the cheque. To that extent, the trial Court was not right in holding that even the proof of deposit of the cheque was not on record. Yet, this fact alone does not take the case of the appellant any further because the stamp affixed on the cheque shows only the name of the bank, and there is nothing to signify the date on which the cheque was deposited in the bank. Even as per the case of the appellant, the cheque in question was deposited twice, and it is clear that there is no cogent evidence placed on record by the appellant to show dishonour of the said cheque.
16. When the basic fact of dishonour of a cheque was not proved by the appellant, and the burden was not discharged offence under section 138 of the said Act could not be said to have been committed by the respondent. Another important aspect of the present case is that when there is lack of evidence to show dishonour of cheque and consequently the date when the cheque was dishonoured, there is no ::: Downloaded on - 17/12/2025 20:37:27 :::CIS 29 2025:HHC:43996 reference point to ascertain as to whether the notice for demand of payment was issued by the appellant to the respondent within the period of 30 days of receipt of information from the bank regarding return of cheque as unpaid, as provided under proviso (b) to section 138 of the .
said Act. This is the reason why the trial Court has held that the appellant failed to prove that she made a demand for payment of the amount within the statutory period, as the statutory period could not be computed in the facts of the present case.
17. Analysis of the provisions of the said Act, particularly of sections 138, 142 and 146 thereof, shows that cognisance of the offence under section 142 of the said Act could not have been taken by the Court in the present case because the basic fact of dishonour of a cheque could not be proved by rt the appellant. The appellant failed to prove dishonour of the cheque by any mode other than the one provided under section 146 of the said Act. The memo of return of the cheque in the present case admittedly did not bear the official mark of the Bank, due to which presumption in favour of the appellant did not arise. Therefore, the complaint in the present case was correctly rejected by the trial Court, thereby acquitting the respondent.
35. It was laid down in Tejendrasingh v. Ravindrakumar, 2019 SCC OnLine Bom 60: (2019) 3 Mah LJ 612: 2019 ACD 229: (2019) 2 RCR (Cri) 475: PLR (2019) 193 IJ 14: (2019) 1 Bom CR (Cri) 900 that when the document does not bear the official mark/seal, the pre-
sumption under Section 146 of the NI Act cannot be drawn. It was observed:
"ii. Admittedly, the UCO Bank representative is not examined. The Trial Court refused to accept the bank memo issued by that bank. It does not bear the seal of the bank. I agree with the trial Court. The presumption under section 146 of the N.I. Act will not come to his rescue. There has to ::: Downloaded on - 17/12/2025 20:37:27 :::CIS 30 2025:HHC:43996 be a seal on the bank slip before the presumption as to dishonour can be drawn. I could have given the benefit of this lacuna even if a proper person from SBI, that is, the signatory of the letter, could have been examined. It seems that while conducting the prosecution, these minor .
procedural aspects are overlooked."
36. Therefore, it is impermissible to rely upon the unsigned and unsealed memo of dishonour to draw the presumption under Section 146 of the NI Act.
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37. A heavy reliance was placed upon the statement of Rakesh Kumar (CW1), who stated that the cheque was dishonoured rt with an endorsement 'funds insufficient'. His testimony will not help the complainant. He was an employee of Gramin Bank, Arsu.
Thus, he has no concern with the ICICI Bank on which the cheque was drawn, or PNB, which had issued the memo of dishonour.
Only an official from the ICICI Bank could have deposed about the amount available in the account of the accused to prove that the account did not have sufficient funds to honour the cheque, and in the absence of the official from ICICI Bank, the statement of Rakesh Kumar, Assistant Manager, Gramin Bank, is not sufficient to prove the dishonour.
38. It was submitted that the accused did not deny the factum of dishonour of the cheque due to insufficient funds. This is contrary to the record because the accused specifically stated in ::: Downloaded on - 17/12/2025 20:37:27 :::CIS 31 2025:HHC:43996 reply to question No.9 regarding the dishonour of the cheque that it was incorrect. Thus, there was a specific denial by the accused in his statement recorded under Section 313 of Cr.P.C., and no .
advantage can be derived from the statement of the accused recorded under Section 313 of CrPC.
39. It was submitted that the cheque contains the stamp of of the Bank on the obverse. This stamp is put by the Bank of the complainant regarding the details of the amount realised and the rt receipt of the payment through the clearing house. It nowhere mentions that the cheque was dishonoured because of insufficient funds.
40. It was submitted that there is a presumption that the cheque was issued for consideration to discharge liability. This presumption has nothing to do with the present case because the question is whether the cheque was dishonoured because of insufficient funds, and not whether there is a presumption.
41. Both the learned Courts below have not considered the significance of the absence of the official seal/signatures and erred in convicting the accused. Thus, the judgments and order passed by the learned Courts below cannot be sustained.
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42. It was submitted that no objection was raised to the exhibition of the documents, and it is impermissible to raise this objection at this stage. This submission will not help the accused.
.
The question is not regarding the admissibility but the proof of the contents.
43. In view of the above, the present revision is allowed, of and the judgment of conviction and order of sentence dated 1.9.2023, passed by the learned Trial Court, affirmed by the rt learned Appellate Court in Criminal Appeal No. 1 of 2025, dated 29.3.2025, are ordered to be set aside. The complaint is dismissed and the accused is acquitted of the commission of an offence punishable under Section 138 of the NI Act. The compensation amount, if deposited be refunded to the petitioner/accused after the expiry of the period of limitation, in case no appeal is preferred, and in case of appeal, the same will be dealt with as per the orders of the Hon'ble Supreme Court of India.
44. In view of the provisions of Section 437-A of the Code of Criminal Procedure [Section 481 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)], the petitioner/accused is directed to furnish personal bonds in the sum of ₹25,000/- with one surety in the like amount to the satisfaction of the learned Registrar ::: Downloaded on - 17/12/2025 20:37:27 :::CIS 33 2025:HHC:43996 (Judicial) of this Court/learned Trial Court, within four weeks, which shall be effective for six months with stipulation that in the event of Special Leave Petition being filed against this judgment, .
or on grant of the leave, the petitioner/accused, on receipt of notice thereof, shall appear before the Hon'ble Supreme Court.
45. A copy of this judgment, along with the records of the of learned Courts below, be sent back forthwith.
46. Pending applications, if any, also stand disposed of.
rt (Rakesh Kainthla) Judge 17th December, 2025 (Chander) ::: Downloaded on - 17/12/2025 20:37:27 :::CIS