Dismissed¶211

Sunil Kumar v. Surinder Garg

Himachal Pradesh HC14 Nov 2025CR.R/419/2025

Case brief

AI extract

What is this about?

Section 138 NI Act conviction affirmed in criminal revision; security cheque liability; presumptions under Sections 118(a) and 139 NI Act on admission of execution; reverse onus and preponderance of probabilities; scope of Section 397 CrPC revisional jurisdiction — no reappreciation of concurrent findings absent perversity; bank dishonour memo presumption under Section 146 NI Act; deemed service of notice; sentence of one year simple imprisonment; compensation up to twice cheque amount with 9% interest (Kalamani Tex); receipt Ext.CW-1/A for ₹12,00,000/-; Himachal Pradesh High Court; Sunil Kumar v. Surinder Garg; Cr. Revision No. 419 of 2025.

What did the court decide?

No relief granted to the petitioner; the conviction under Section 138 NI Act and the sentence of simple imprisonment for one year and compensation of ₹6,00,000/- were upheld.

Sunil Kumar Vs Surinder Garg — Cheque Dishonour | Himachal Pradesh HC (2025)

What the court decided

AI extract

Outcome

No relief granted to the petitioner; the conviction under Section 138 NI Act and the sentence of simple imprisonment for one year and compensation of ₹6,00,000/- were upheld.

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Issue for consideration

Scope of the High Court's revisional jurisdiction against concurrent findings of conviction — whether the revisional court may reappreciate evidence or interfere otherwise than to rectify a patent defect, error of jurisdiction or law, or perversity. +5 more

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Court's answer

A criminal revisional court is not an appellate court; its jurisdiction is confined to rectifying a patent defect, error of jurisdiction or law, and in the absence of perversity it will not reappreciate evidence or upset the concurrent factual findings of the courts below.

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Ratio / Principle

Since the accused admitted his signatures on and the issuance of the cheque, the learned Courts below were justified in raising the presumptions under Sections 118(a) and 139 NI Act that the cheque was issued for consideration in discharge of a legally enforceable debt or liability.

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Key takeaways

The accused's explanation that the receipt (Ext.CW-1/A) acknowledging ₹12,00,000/- was executed merely as security for a loan of ₹1,00,000/- was not believable; the learned Courts below rightly discarded that defence as highly improbable, particularly since the contents of the receipt were read over and explained and the accused understood its significance.ratio¶159
Even if a cheque is issued as security, the issuer remains liable under Section 138 NI Act where a debt or liability subsists on the date of the cheque; the accused cannot escape liability on the ground that he had issued blank signed cheques as security in favour of the complainant.ratio¶183

Detailed headnote1 paragraphs

Criminal revision dismissed; conviction under Section 138 NI Act and sentence upheld. Held: (i) a revisional court is not an appellate court and, absent perversity, will not reappreciate evidence or upset concurrent findings of conviction (scope of Section 397 CrPC); (ii) admission of the signatures on and issuance of a cheque triggers the presumptions under Sections 118(a) and 139 NI Act that it was drawn for consideration and in discharge of a legally enforceable debt, the rebuttable onus lying on the accused on a preponderance of probabilities; (iii) the accused's plea that a receipt (Ext.CW-1/A) acknowledging ₹12,00,000/- was executed only as security for a ₹1,00,000/- loan was highly improbable and rightly rejected, the contents having been read over and explained; (iv) a cheque issued as security is not waste paper and attracts Section 138 liability where a debt subsists on the date of the cheque — even after deducting ₹1,91,101/- paid, the subsisting liability of ₹10,08,899/- exceeded the ₹5,00,000/- cheque, so the complainant need not have presented it for a reduced amount; (v) the bank's dishonour memo is presumed correct under Section 146 NI Act absent rebutting evidence, and notice was deemed served; all ingredients of Section 138 stood satisfied; (vi) simple imprisonment of one year and compensation of ₹6,00,000/- (cheque amount plus ₹1,00,000/-) were not excessive, fines up to twice the cheque amount being permissible. (Paras 34-39)

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2025:HHC:38307

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. Revision No. 419 of 2025 Reserved on: 10.10.2025 Date of Decision: 14.11.2025

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Sunil Kumar ...Petitioner Versus Surinder Garg ...Respondent

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Coram Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ No.

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For the Petitioner : Mr Arun Kumar, Advocate. For the Respondent : None.

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Rakesh Kainthla, Judge

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The present revision is directed against the judgment dated 22.02.2025, passed by learned Additional Sessions Judge (1), Shimla, H.P. (learned Appellate Court) vide which the judgment of conviction passed by learned Judicial Magistrate First Class, Court No.4, Shimla (learned Trial Court) and order of sentence dated 04.11.2023 passed by learned Chief Judicial Magistrate, District Shimla were upheld. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for

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convenience.)

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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 accused had borrowed ₹12,00,000/- from the complainant between 10.05.2014 to 22.08.2014. He promised to repay the amount within one year and issued two cheques — one for ₹5,00,000/- and another for ₹7,00,000/— drawn on Bank of Baroda, Kasumpti, to repay the amount. The complainant presented the cheque of ₹5,00,000/- for encashment, but the bank dishonoured it with an endorsement ‘funds insufÏcient’. The complainant sent a legal notice to the accused, which was duly served upon him. The accused failed to repay the money despite receipt of the notice. Hence, a complaint was filed against the accused for taking action as per the law.

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3. The learned Trial Court found sufÏcient 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 read with Section 142 of the NI Act, to which he pleaded not guilty and claimed to be tried.

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The complainant examined himself (CW1) and Ganga Ram (CW2) to prove his case.

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The accused, in his statement recorded under Section 313 of CrPC, admitted that he had issued a cheque in favour of the complainant. He claimed that the cheque was issued as security because he had borrowed ₹1,00,000/- from the complainant. He had issued a cheque of ₹1,00,000/-, but he had repaid ₹2,00,000/to the complainant and had no liability towards him. He admitted that he had issued a receipt (Ext.CW-1/A) and clarified that it was issued as a guarantee, which was to be used on failure to repay the amount. The complainant misused the security cheques issued by the accused. He examined Santosh Kumar (DW1) and himself (DW2).

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The learned Trial Court held that the accused admitted issuance of the cheque. He claimed that the cheque was issued as security. The admission of the signatures on the cheque and its issuance would give rise to a presumption under Section 118(a) and 139 of the NI Act that the cheque was issued for consideration to discharge the debt/liability. The plea taken by the accused that he had returned ₹2,00,000/- was not proved. The accused had executed a receipt of ₹12,00,000/- which falsified his plea that he

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had only taken ₹1,00,000/- from the complainant. A security cheque would give rise to the liability under Section 138 of the NI Act. The cheque was dishonoured with an endorsement ‘funds insufÏcient’ and the notice was duly served upon the accused. However, the accused failed to repay the amount. Hence, he was convicted of an offence punishable under Section 138 of the NI Act and was sentenced to undergo simple imprisonment for one year and pay a compensation of ₹6,00,000/- to the complainant.

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Being aggrieved by the judgment and order passed by the learned Trial Court, the accused filed an appeal, which was decided by the learned Additional Session Judge (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 give rise to a presumption that the cheque was issued for consideration to discharge the liability. The burden shifted upon the accused to rebut the presumption. The plea taken by the accused that he had taken a loan of ₹1,00,000/and returned ₹2,00,000/- to the complainant was falsified by the receipt (Ext.CW1/A). A cheque issued as a security is not waste paper and gives rise to liability under Section 138 of the NI Act. The cheque was dishonoured with an endorsement ‘funds insufÏcient’. The notice was duly served upon the accused, but he had failed to

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repay the amount. Hence, all the ingredients of the commission of an offence under Section 138 of the NI Act were duly satisfied. The order of the sentence did not suffer from any infirmity. Hence, the appeal filed by the accused was dismissed.

¶28

Being aggrieved from the judgments and order passed by the learned Courts below, the accused filed the present revision, asserting that the learned Courts below failed to appreciate that the cheque was issued as security and not to discharge the debt or liability. The complainant failed to prove the existence of a legally enforceable debt. The financial capacity of the complainant was not considered by the learned Courts below. The accused had paid ₹1,91,000/- against the receipt of ₹1,00,000/-. Therefore, it was prayed that the present revision be allowed and judgments and order passed by learned Courts below be set aside.

¶29

Mr Arun Kumar, learned counsel for the petitioner, submitted that the learned Courts below erred in appreciating the material placed before them. It was duly established on record that the cheque was issued as security. The complainant failed to prove his financial capacity or that the accused had borrowed the money from him. The complainant admitted the receipt of ₹1,91,000/and the cheque could not have been presented for an amount of

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₹5,00,000/-. These aspects were ignored by the learned Courts below. Hence, he prayed that the present revision be allowed and the judgments and order passed by the learned Courts below be set aside.

¶33

I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

¶34

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-

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“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.

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This position was reiterated in State of Gujarat v. Dilipsinh Kishorsinh Rao, (2023) 17 SCC 688: 2023 SCC OnLine SC

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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 error of jurisdiction or law or the perversity which has crept in such proceedings.

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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)

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“ 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 wellfounded 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

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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 much-advanced stage in the proceedings under CrPC.”

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It was held in Kishan Rao v. Shankargouda , (2018) 8 SCC

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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:

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“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)

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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

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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 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 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 nonconsideration 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)

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“ 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

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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 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.”

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This position was reiterated in Bir Singh v. Mukesh

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Kumar , (2019) 4 SCC 197: (2019) 2 SCC (Cri) 40: (2019) 2 SCC (Civ)

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309: 2019 SCC OnLine SC 13, wherein it was observed at page 205:

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“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.

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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.”

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A similar view was taken in Sanjabij Tari v. Kishore S.

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Borcar, 2025 SCC OnLine SC 2069, wherein it was observed:

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“27. It is well settled that in exercise of revisional jurisdiction, 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. 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

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passed by a Court having jurisdiction, in the absence of a jurisdictional error.

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28. Consequently, this Court is of the view that in the absence of perversity, it was not open to the High Court in the present case, in revisional jurisdiction, to upset the concurrent findings of the Trial Court and the Sessions Court.”

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The present revision has to be decided as per the parameters laid down by the Hon’ble Supreme Court

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The ingredients of the offence punishable under Section 138 of the NI Act were explained by the Hon’ble Supreme Court in Kaveri Plastics v. Mahdoom Bawa Bahrudeen Noorul, 2025 SCC OnLine SC 2019 as under:-

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5.1.1. In K.R. Indira v. Dr. G. Adinarayana(2003) 8 SCC 300 , this Court enlisted the components, aspects and the acts, the concatenation of which would make the offence under Section 138 of the Act complete, to be these (i) drawing of the cheque by a person on an account maintained by him with a banker, for payment to another person from out of that account for discharge in whole/in part of any debt or liability, (ii) presentation of the cheque by the payee or the holder in due course to the bank, (iii) returning the cheque unpaid by the drawee bank for want of sufÏcient funds to the credit of the drawer or any arrangement with the banker to pay the sum covered by the cheque, (iv) giving notice in writing to the drawer of the cheque within 15 days of the receipt of information by the payee from the bank regarding the return of the cheque as unpaid demanding payment of the cheque amount, and (v) failure of the drawer to make payment to the payee or the holder in due course of the cheque, of the amount covered by the cheque within 15 days of the receipt of the notice.

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The accused stated, while appearing as DW-2, that he had borrowed ₹1,00,000/- from the complainant for purchasing a sugar cane machine for his business. This amount was to be returned with an interest of ₹1,00,000/- after one year. The complainant got a receipt (Ext.CW-1/A) executed by him with an assurance that it would be used only on failure of repayment of the borrowed amount. The complainant also obtained three blank signed cheques from him (the accused). He stated in his crossexamination that he had not made any complaint to any person regarding the forcible execution of the receipt. He admitted that the receipt was in his handwriting and bore his signature. He admitted his signature on the cheque.

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Learned Courts below had rightly held that the admission of the signatures and issuance of the cheque would trigger a presumption under Section 118(a) and Section 139 of the NI Act that the cheque was issued for consideration to discharge the debt/liability. It was laid down by the Hon'ble Supreme Court in APS Forex Services (P) Ltd. v. Shakti International Fashion Linkers (2020) 12 SCC 724 , that when the issuance of a cheque and signature on the cheque are not disputed, a presumption would arise that the cheque was issued in discharge of the legal liability. It was observed: -

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“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 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 “insufÏcient 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 a presumption. The accused was required to lead evidence that the entire amount due and payable to the complainant was paid.

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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 a presumption is rebuttable. 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

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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 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.”

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A similar view was taken in Sanjay Sanjabij Tari v.

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Kishore S. Borcar, 2025 SCC OnLine SC 2069, wherein it was

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observed:

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“ONCE EXECUTION OF A CHEQUE IS ADMITTED, PRESUMPTIONS UNDER SECTIONS 118 AND 139 OF THE NI ACT ARISE

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15. In the present case, the cheque in question has admittedly been signed by the Respondent No. 1-Accused. This Court is of the view that once the execution of the cheque is admitted, the presumption under Section 118 of the NI Act that the cheque in question was drawn for consideration and the presumption under Section 139 of the NI Act that the holder of the cheque received the said cheque in discharge of a legally enforceable debt or liability arises against the accused. It is pertinent to mention that observations to the contrary by a two-Judge Bench in Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC

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15 54, have been set aside by a three-Judge Bench in Rangappa (supra).

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16. This Court is further of the view that by creating this presumption, the law reinforces the reliability of cheques as a mode of payment in commercial transactions.

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17. Needless to mention that the presumption contemplated under Section 139 of the NI Act is a rebuttable presumption. However, the initial onus of proving that the cheque is not in discharge of any debt or other liability is on the accused/drawer of the cheque [See: Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197 ].

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The presumption under Section 139 of the NI Act was

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explained by the Hon’ble Supreme Court in N. Vijay Kumar v.

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Vishwanath Rao N., 2025 SCC OnLine SC 873 as under:

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“5. The NI Act raises two presumptions, one under Section 118 and the other in Section 139 thereof. The Sections read as under:

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“ 118. Presumptions as to negotiable instruments. — Until the contrary is proved, the following presumptions shall be made: —

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(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;

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x xx

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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 referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.”

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6. Section 118 (a) assumes that every negotiable instrument is made or drawn for consideration, while Section 139

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creates a presumption that the holder of a cheque has received the cheque in discharge of a debt or liability. Presumptions under both are rebuttable, meaning they can be rebutted by the accused by raising a probable defence. This Court, through various pronouncements, has consistently clarified the nature and extent of these presumptions and the standard of proof required by the accused to rebut them. We may consider a few such pronouncements.

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6.1. In Mallavarapu Kasivisweswara Rao v. Thadikonda Ramulu Firm (2008) 7 SCC 655 , this Court observed as under:

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“ 17. Under Section 118( a ) of the Negotiable Instruments Act, the court is obliged to presume, until the contrary is proved, that the promissory note was made for consideration. It is also a settled position that the initial burden in this regard lies on the defendant to prove the non-existence of consideration by bringing on record such facts and circumstances which would lead the court to believe the non-existence of the consideration either by direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal. In this connection, reference may be made to a decision of this Court in Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal [(1999) 3 SCC 35]. In para 12 of the said decision, this Court observed as under: (SCC pp. 50-51)

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“ 12 . Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118( a ) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be

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obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under the law to rely upon all the evidence led in the case, including that of the plaintiff as well. In cases where the defendant fails to discharge the initial onus of proof by showing the nonexistence of the consideration, the plaintiff would invariably be held entitled to the benefit of the presumption arising under Section 118( a ) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence, as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record to get the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its nonexistence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist.”

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From the above decision of this Court, it is pellucid that if the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who would be obliged to prove it as a matter of fact and

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¶114

¶115

upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. It is also discernible from the above decision that if the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of the presumption arising under Section 118( a ) in his favour.” (Emphasis Supplied)

¶116

6.2. In Kumar Exports v. Sharma Carpets (2009) 2 SCC 513 , this Court examined the presumptions raised by the N.I. Act, and held as follows:

¶117

“ 18. Applying the definition of the word “proved” in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges the burden to prove that the instrument, say a note, was executed by the accused, the rules of presumptions under Sections 118 and 139 of the Act help him shift the burden on the accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists.

¶118

The use of the phrase “until the contrary is proved” in Section 118 of the Act and use of the words “unless the contrary is proved” in Section 139 of the Act read with definitions of “may presume” and “shall presume” as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party

¶119

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¶120

¶121

has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over.

¶122

The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that, under the particular circumstances of the case, the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions, an accused is not expected to prove his defence beyond a reasonable doubt, as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently, would not serve the purpose of the accused. Something which is probable has to be brought on record to shift the burden of proof to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence, and if the circumstances so relied upon are compelling, the burden may likewise shift again onto the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act, to rebut

¶123

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¶124

¶125

the presumptions arising under Sections 118 and 139 of the Act.

¶126

The accused also has an option to prove the nonexistence of consideration and debt or liability either by letting in evidence or, in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue.” (Emphasis Supplied)

¶127

6.3. A three-Judge Bench of this Court in Rangappa (supra) had the occasion to consider Section 139 elaborately. The Court reiterated that where the signature on the cheque is acknowledged, a presumption has to be raised that the cheque pertained to a legally enforceable debt or liability; however, this presumption is of a rebuttable nature and the onus is then on the accused to raise a probable defence. It was further stated that:

¶128

“ 27. Section 139 of the Act 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 a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses, and the

¶129

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¶130

¶131

defendant-accused cannot be expected to discharge an unduly high standard of proof.

¶132

In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of “preponderance of probabilities”. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence, and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.”

¶133

6.4. T.S. Thakur J., (as his lordship then was) in his supplementing opinion in Vijay v. Laxman (2013) 3 SCC 86 , observed as under:

¶134

“ 20. The High Court has rightly accepted the version given by the respondent-accused herein. We say so for more than one reason. In the first place, the story of the complainant that he advanced a loan to the respondent-accused is unsupported by any material, let alone any documentary evidence that any such loan transaction had ever taken place. So much so, the complaint does not even indicate the date on which the loan was demanded and advanced. It is blissfully silent about these aspects, thereby making the entire story suspect. We are not unmindful of the fact that there is a presumption that the issue of a cheque is for consideration. Sections 118 and 139 of the Negotiable Instruments Act make that abundantly clear. That presumption is, however, rebuttable in nature. What is most important is that the standard of proof required for rebutting any such presumption is not as high as that required of the prosecution. So long as the accused can make his version reasonably probable, the burden of rebutting the presumption would stand discharged. Whether or not it is so in a given case depends upon the

¶135

2025:HHC:38307

¶136

¶137

facts and circumstances of that case. It is trite that the courts can take into consideration the circumstances appearing in the evidence to determine whether the presumption should be held to be sufÏciently rebutted. The legal position regarding the standard of proof required for rebutting a presumption is fairly well settled by a long line of decisions of this Court.”

¶138

6.5. This Court, in the case of Baslingappa v. Mudibasappa(2019) 5 SCC 418 , summarised the principles on Sections 118(a) and 139 of the N.I. Act. The same is reproduced with profit as under:

¶139

“ 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:

¶140

25.1. Once the execution of a cheque is admitted, Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.

¶141

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.

¶142

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.

¶143

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.

¶144

2025:HHC:38307

¶145

¶146

25.5. It is not necessary for the accused to come into the witness box to support his defence.”

¶147

6.6. Recently, a coordinate Bench of this Court in Rajaram v. Maruthachalam(2023) 16 SCC 125 , through Gavai J., observed as under:

¶148

“ 27. It can thus be seen that this Court has held that once the execution of a cheque is admitted, Section 139 of the N.I. Act mandates a presumption that the cheque was for the discharge of any debt or other liability. It has, however, been held that 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. It has further been held that 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. It has been held that 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.”

¶149

7. The position of law, as is evident from the above, is clear.”

¶150

Thus, the learned Courts below were justified in raising

¶151

the presumption that the cheque was issued in discharge of the liability for consideration.

¶152

Santosh Kumar (DW-1) stated that the accused had borrowed a sum of ₹1,00,000/- from the complainant, which was to be returned within one year with interest of ₹1,00,000/-. The complainant obtained three blank signed cheques from the accused as a guarantee. The receipt (Ext.CW-1/A) was executed at

¶153

2025:HHC:38307

¶154

¶155

the instance of the complainant, who had assured the accused that he (the complainant) would use the receipt only if the accused failed to return the amount along with the interest. The accused had returned the amount. He stated in his cross-examination that the accused is his brother. The accused had borrowed ₹1,00,000/from the complainant in May 2014, and he executed the receipt on the next day. He admitted that the receipt was signed by the accused, and it was read over and explained to him. He denied that the accused had issued the receipt and the cheque to discharge his liability, and he was deposing falsely to favour his brother.

¶156

The statements of this witness and the accused proved that the accused had executed a receipt (Ext.CW-1/A) of ₹12,00,000/-. The explanation provided by the accused and this witness that this receipt was executed at the instance of the complainant, who had assured to use it in case of non-return of the amount, is not believable. It is difÏcult to believe that a person would execute a receipt of ₹12,00,000/- when he had borrowed ₹1,00,000/-. The accused admitted that he is carrying out the business of selling sugar cane juice, clearly showing that he is not a layperson and that he understood the significance of the receipt. Santosh Kumar (DW1) stated that the contents of the receipt were read over and explained; thus, the accused was aware of the

¶157

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¶158

¶159

contents of the receipt. The fact that he had put his signature on it after understanding the contents falsifies the plea taken by him that the receipt was executed at the instance of the complainant simply as a security for ₹1,00,000/-. Further, he has not explained why there was a necessity of ₹12,00,000/- when ₹1,00,000/- was borrowed and ₹2,00,000/- were to be returned. The receipt could have been executed for ₹1,00,000/- or at the most for ₹2,00,000/and not for ₹12,00,000/-. Thus, learned Courts below had rightly discarded the defence taken by the accused as highly improbable.

¶160

The receipt (Ext.CW-1/A) shows that the accused had borrowed ₹12,00,000/- from the complainant. Thus, even if the plea of the accused is accepted as correct that he had issued a blank signed cheque as security, the accused had a subsisting liability to pay ₹12,00,000/- on the date of issuance of the cheque. The accused claimed that he had paid ₹1,91,000/-, and even if this amount is taken into consideration, the accused still had a subsisting liability of ₹10,00,000/-. Hence, the cheque of ₹5,00,000/- would be towards the subsisting liability. It was laid down by this Court in Hamid Mohammad Versus Jaimal Dass 2016 (1) HLJ 456 , that even if the cheque is issued towards the security, the accused is liable. It was observed:

¶161

2025:HHC:38307

¶162

¶163

“9. Submission of learned Advocate appearing on behalf of the revisionist that the cheque in question was issued to the complainant as security, and on this ground, the criminal revision petition is rejected as being devoid of any force for the reasons hereinafter mentioned. As per Section 138 of the Negotiable Instruments Act 1881, if any cheque is issued on account of other liability, then the provisions of Section 138 of the Negotiable Instruments Act 1881 would be attracted. The court has perused the original cheque, Ext. C-1 dated 30.10.2008, placed on record. There is no recital in the cheque Ext. C-1, that cheque was issued as a security cheque. It is well-settled law that a cheque issued as security would also come under the provisions of Section 138 of the Negotiable Instruments Act 1881. See 2016 (3) SCC page 1 titled Don Ayengia v. State of Assam & another . It is well-settled law that where there is a conflict between former law and subsequent law, then subsequent law always prevails.”

¶164

It was laid down by the Hon'ble Supreme Court in Sampelly Satyanarayana Rao vs. Indian Renewable Energy Development Agency Limited 2016(10) SCC 458 that issuing a cheque toward security will also attract the liability for the commission of an offence punishable under Section 138 of the NI Act. It was observed: -

¶165

“10. We have given due consideration to the submission advanced on behalf of the appellant as well as the observations of this Court in Indus Airways Private Limited versus Magnum Aviation Private Limited (2014) 12 SCC 53 with reference to the explanation to Section 138 of the Act and the expression “for the discharge of any debt or other liability” occurring in Section 138 of the Act. We are of the view that the question of whether a post-dated cheque is for “discharge of debt or liability” depends on the nature of the transaction. If on the date of the cheque, liability or debt exists or the amount has

¶166

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¶167

¶168

become legally recoverable, the Section is attracted and not otherwise .

¶169

Reference to the facts of the present case clearly shows that though the word “security” is used in clause 3.1(iii) of the agreement, the said expression refers to the cheques being towards repayment of instalments. The repayment becomes due under the agreement, the moment the loan is advanced, and the instalment falls due. It is undisputed that the loan was duly disbursed on 28th February 2002, which was prior to the date of the cheques. Once the loan was disbursed and instalments had fallen due on the date of the cheque as per the agreement, the dishonour of such cheques would fall under Section 138 of the Act. The cheques undoubtedly represent the outstanding liability.

¶170

Judgment in Indus Airways (supra) is clearly distinguishable. As already noted, it was held therein that liability arising out of a claim for breach of contract under Section 138, which arises on account of dishonour of a cheque issued, was not by itself at par with a criminal liability towards discharge of acknowledged and admitted debt under a loan transaction. Dishonour of a cheque issued for the discharge of a later liability is clearly covered by the statute in question. Admittedly, on the date of the cheque, there was a debt/liability in praesenti in terms of the loan agreement, as against the case of Indus Airways (supra), where the purchase order had been cancelled and a cheque issued towards advance payment for the purchase order was dishonoured. In that case, it was found that the cheque had not been issued for the discharge of liability but as an advance for the purchase order, which was cancelled. Keeping in mind this fine, but the real distinction, the said judgment cannot be applied to a case of the present nature, where the cheque was for repayment of a loan instalment which had fallen due, though such a deposit of cheques towards repayment of instalments was also described as “security” in the loan agreement. In applying the judgment in Indus Airways (supra), one cannot lose sight of the difference between a transaction of the purchase order which is cancelled and that of a loan transaction where the loan has actually been advanced and its repayment is due on the date of the cheque.

¶171

The crucial question to determine the applicability of Section 138 of the Act is whether the cheque represents the

¶172

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¶173

¶174

discharge of existing enforceable debt or liability, or whether it represents an advance payment without there being a subsisting debt or liability. While approving the views of different High Courts noted earlier, this is the underlying principle as can be discerned from the discussion of the said cases in the judgment of this Court.” (Emphasis supplied)

¶175

This position was reiterated in Sripati Singh v. State of

¶176

Jharkhand, 2021 SCC OnLine SC 1002: AIR 2021 SC 5732 , and it was held that a cheque issued as security is not waste paper and a complaint under section 138 of the NI Act can be filed on its dishonour. It was observed:

¶177

“17. A cheque issued as security pursuant to a financial transaction cannot be considered 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 the 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 a presentation, if the same is dishonoured, the consequences contemplated under Section 138 and the other provisions of the NI Act would flow.

¶178

When a cheque is issued and is treated as 'security' towards repayment of an amount with a time period being stipulated for repayment, all that it ensures is that such a cheque, which is issued as 'security, cannot be presented prior to the loan or the instalment maturing for repayment towards which such cheque is issued as security. Further, the borrower would have the option of repaying the loan amount or such financial liability in any other form, and in that manner, if the amount

¶179

2025:HHC:38307

¶180

¶181

of the loan due and payable has been discharged within the agreed period, the cheque issued as security cannot thereafter be presented. Therefore, the prior discharge of the loan or there being an altered situation due to which there would be an understanding between the parties is a sine qua non to not present the cheque which was issued as security. These are only the defences that would be available to the drawer of the cheque in proceedings initiated under Section 138 of the N.I. Act. Therefore, there cannot be a hard and fast rule that a cheque, which is issued as security, can never be presented by the drawee of the cheque. If such is the understanding, a cheque would also be reduced to an 'on-demand promissory note' and in all circumstances, it would only be civil litigation to recover the amount, which is not the intention of the statute. When a cheque is issued even though as 'security' the consequence flowing therefrom is also known to the drawer of the cheque and in the circumstance stated above if the cheque is presented and dishonoured, the holder of the cheque/drawee would have the option of initiating the civil proceedings for recovery or the criminal proceedings for punishment in the fact situation, but in any event, it is not for the drawer of the cheque to dictate terms with regard to the nature of litigation.”

¶182

Therefore, the learned Courts below had rightly held

¶183

that the accused cannot escape from the liability on the ground that he had issued blank signed cheques as security in favour of the complainant.

¶184

The complainant admitted in his cross-examination

¶185

that accused had deposited ₹7000/-, ₹15,000/-, ₹2,000/-, ₹25,000/-, ₹25,000/-, ₹2000/-, ₹1,000/-, ₹1000/-, ₹18,000/and ₹25000/- on 10.01.2015, 22.01.2015, 09.02.2015, 30.04.2015, 11.05.2015, 15.05.2015, 20.05.2015, 09.06.2015, 20.06.2015 and 09.07.2015 respectively. Thus, the accused had deposited a sum of

¶186

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¶187

¶188

₹1,91,000/- in his account. It was submitted based on this admission that the complainant could not have presented a cheque for an amount of ₹5,00,000/-. He should have mentioned this amount of ₹1,91,000/- and presented the cheque for the balance amount. This submission will not help the petitioner. The accused had admitted the fact that he had taken ₹12,00,000/- from the complainant by executing the receipt (Ext.CW-1/A). Therefore, even if ₹1,91,101 is deducted, the accused had a subsisting liability of ₹10,08,899/-. The cheque for ₹5,00,000/- was less than this liability, and the complainant was not required to deduct this amount from the amount of the cheque.

¶189

The complainant stated that the cheque was dishonoured with an endorsement ‘insufÏcient funds’. This was duly proved by the memo of dishonour (Ext.CW-1/C) wherein it was mentioned that the cheque was dishonoured with an endorsement ‘funds insufÏcient’. It was laid down by the 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 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:

¶190

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¶191

¶192

“24. Section 146, making a major departure from the principles of the Evidence Act, provides that the bank's slip or memo with the ofÏcial 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.”

¶193

In the present case, no evidence was produced to rebut

¶194

the presumption, and the learned Courts below had rightly held that the cheque was dishonoured with an endorsement ‘insufÏcient funds’.

¶195

The complainant stated that he had sent the notice to the accused. The notice was sent to the correct address and is deemed to be served. The accused failed to repay the amount despite the service. Hence, learned Courts below had rightly held that the notice was duly served upon the accused and he had failed to repay the amount despite the deemed service of notice. Therefore, all the ingredients 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 an offence punishable under Section 138 of the NI Act.

¶196

The learned Trial Court sentenced the accused to undergo simple imprisonment 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

¶197

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¶198

¶199

SC 138 that the penal provisions of Section 138 of the NI Act is a deterrent in nature. It was observed at page 203:

¶200

“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 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.”

¶201

Keeping in view the nature of the sentence to be awarded in cases under Section 138 of the NI Act, the sentence of one year of simple imprisonment is not excessive, and no interference is required with it.

¶202

The cheque was issued for ₹5,00,000/- in the year 2015. The compensation of ₹6,00,000/- was awarded by the learned Chief Judicial Magistrate on 04.11.2023 after the lapse of 8 years. The complainant lost money that he would have gained by investing it. He had to engage a counsel to prosecute the complaint. Therefore, he was entitled to be compensated for the same. It was laid down by the Hon’ble Supreme Court in Kalamani

¶203

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

¶204

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¶205

¶206

simple interest at the rate of 9% per annum. It was observed at page 291: -

¶207

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 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 ] ”

¶208

Therefore, a compensation of ₹1,00,000/- on the amount of ₹5,00,000/- cannot be said to be excessive and no interference is required with it.

¶209

In view of the above, there is no infirmity in the judgment and order passed by the learned Courts below.

¶210

No other point was urged.

¶211

In view of the above, the present revision fails, and the same is dismissed.

¶212

14^th November 2025 (Chander)

¶213

( Rakesh Kainthla) Judge

Issues for consideration

6 issues framed by the court

AI extract

1.
Scope of the High Court's revisional jurisdiction against concurrent findings of conviction — whether the revisional court may reappreciate evidence or interfere otherwise than to rectify a patent defect, error of jurisdiction or law, or perversity.¶34
The court held
A criminal revisional court is not an appellate court; its jurisdiction is confined to rectifying a patent defect, error of jurisdiction or law, and in the absence of perversity it will not reappreciate evidence or upset the concurrent factual findings of the courts below.ratio¶34
2.
Whether, upon the accused's admission of the signatures on and issuance of the cheque, presumptions under Sections 118(a) and 139 NI Act arose, and whether the plea that the cheque was issued as security for ₹1,00,000/- rebutted them.¶77
The court held
Since the accused admitted his signatures on and the issuance of the cheque, the learned Courts below were justified in raising the presumptions under Sections 118(a) and 139 NI Act that the cheque was issued for consideration in discharge of a legally enforceable debt or liability.ratio¶150-151
3.
Whether a cheque issued as security gives rise to liability under Section 138 NI Act, such that the accused cannot escape liability on the ground that he had issued blank signed cheques as security.¶183
The court held
Even if a cheque is issued as security, the issuer remains liable under Section 138 NI Act where a debt or liability subsists on the date of the cheque; the accused cannot escape liability on the ground that he had issued blank signed cheques as security in favour of the complainant.ratio¶183
4.
Whether the complainant was bound to deduct the ₹1,91,000/- deposited by the accused and present the cheque for the balance amount, i.e., whether a legally enforceable debt subsisted on the date of the cheque.¶188
The court held
On the admitted receipt of ₹12,00,000/-, the accused had a subsisting liability on the date of the cheque; even deducting ₹1,91,101/-, a liability of ₹10,08,899/- remained, which exceeded the ₹5,00,000/- cheque, so the complainant was not required to deduct the deposits from the cheque amount.ratio¶188
5.
Whether dishonour of the cheque (proved through the bank memo) and service of notice upon the accused were duly established so as to satisfy all ingredients of the offence under Section 138 NI Act.¶195
The court held
Dishonour with endorsement 'funds insufficient' stood proved by the bank memo, which carries a presumption of correctness that was never rebutted; the notice was deemed duly served and the accused failed to repay; consequently all ingredients of Section 138 NI Act were satisfied and the conviction was correct.ratio¶195
6.
Whether the sentence of simple imprisonment for one year and compensation of ₹6,00,000/- awarded for the offence under Section 138 NI Act was excessive.¶201
The court held
The penal provision of Section 138 NI Act is deterrent in nature, and the sentence of simple imprisonment for one year imposed on the accused is not excessive and requires no interference.ratio¶201

Sunil Kumar v. Surinder Garg

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Sunil Kumar v. Surinder Garg

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