Pushpa Devi Thapa Vs Usha Goel and Another

The present revision is directed against the judgment dated 27.9.2024, passed by learned Additional Sessions Judge, CBI Court, Shimla (learned Appellate Court), vide which the judgment of conviction and order of sentence dated 1.7.2024, passed by learned Judicial Magistrate First Class, Court No.3,

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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Shimla, H.P. (learned Trial Court) were upheld and the appeal filed by the petitioner (accused before the learned Trial Court) was dismissed. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.)

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Briefly stated, the facts giving rise to the present revision are that the complainant filed a complaint before the learned Trial Court against the accused for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (NI Act). It was asserted that the complainant is the sole proprietor of M/s Mahaluxmi Jewellers, Lower Bazaar, Shimla. The accused purchased jewellery worth ₹5,51,913/from the complainant vide Voucher No. 5816, dated 15.4.2015. The accused paid ₹51,000/- in cash and issued a post-dated cheque of ₹5.00 lacs. The complainant presented the cheque to her bank, but it was dishonoured with the remark ‘funds insufficient’. The complainant served a legal notice upon the accused asking her to repay the amount within 15 days from the date of the receipt of the notice. The accused failed to repay any money; hence, the complaint was filed before the learned Trial Court for taking action as per law.

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The learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, a notice of accusation was put to her for the commission of an offence punishable under Section 138 of the NI Act, to which she pleaded not guilty and claimed to be tried.

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The complainant examined himself (CW1) to prove her case.

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The accused, in her statement recorded under Section 313 of Cr.P.C., asserted that a false case was registered against her as she and some other persons had lodged complaints against Karan Goel. Statements of Constable Kushal (DW1), Mamta Sharma (DW2), Pushpa (DW3), Anuj Sharma (DW4), Ramesh Kumar (DW5), Nishant Pathania (DW6), Ishwar Singh (DW7) and Sangeeta Sharma (DW8) were recorded in defence.

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Learned Trial Court held that the issuance of the cheque was not disputed. A presumption would arise that the cheque was issued in discharge of the liability. Even if a blank cheque was issued, the complainant had sufficient authority to fill the amount and present it for realisation. The accused failed

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to rebut the presumption attached to the cheque. The cheque was dishonoured with an endorsement ‘funds insufficient’. The notice was duly served upon the accused, but the accused failed to repay the amount. Hence, the accused was convicted of the commission of an offence punishable under Section 138 of the NI Act and was sentenced to undergo simple imprisonment for one year, pay compensation of ₹6,80,000/- and, in default of payment of compensation to undergo further simple imprisonment for three months.

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Being aggrieved by the judgment and order passed by the learned Trial Court, the accused preferred an appeal which was decided by the learned Sessions Judge, CBI Court (learned Appellate Court). Learned Appellate Court concurred with the findings recorded by the learned Trial Court that the issuance of the cheque was not disputed, and a presumption would arise that the cheque was issued for consideration in discharge of the legal liability. The accused failed to rebut the presumption. The cheque was dishonoured with an endorsement ‘insufficient funds’, and the accused had failed to pay the amount despite the receipt of the valid notice of demand. Therefore, the accused was rightly convicted and sentenced by the learned Trial Court. No

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interference was required with the judgment and order passed by the learned Trial Court. Hence, the appeal was dismissed.

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Being aggrieved by the judgments and order passed by the learned Courts below, the petitioner/accused has filed the present petition, asserting that the learned Courts below failed to properly appreciate the evidence. There were many discrepancies in the statement of the complainant. The cheque was issued as a security and not in discharge of the legal liability. The benefit of the Probation of Offenders Act was not granted to the accused. The cash memo was issued by Goel’s Mahaluxmi Jewellers, whereas the complaint was filed by M/s Mahalaxmi Jewellers through its proprietor. The accused has no subsisting liability towards the complainant. Hence, it was prayed that the present revision be allowed and the judgment and order passed by the learned Courts below be set aside.

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I have heard M/s Sunil Awasthi, Ashish Verma and Hem Raj Thakur, learned counsel for the petitioner/accused, Mr. Anuj Gupta, learned counsel for respondent No.1 and Mr. Tarun Pathak, learned Advocate General, for respondent No.2State.

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Mr. Sunil Awasthi, learned counsel for the petitioner/accused, submitted that the learned Courts below failed to appreciate that the bill was issued by Goel’s Mahaluxmi Jewellers, whereas the cheque was issued in the name of Mahalaxmi Jewellers. There is no evidence that Goel’s Mahaluxmi and Mahalaxmi Jewellers are the same entities. The accused had no liability towards Mahalaxmi Jewellers as per the case of the complainant. The learned Courts below did not notice this fact. The presumption attached to the cheque was duly rebutted by the evidence led by the accused. Therefore, it was prayed that the present revision be allowed and the judgments and order passed by the learned Trial Courts below be set aside.

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Mr. Anuj Gupta, learned counsel for the respondent/complainant, submitted that the plea that Goel’s Mahaluxmi Jewellers and Mahalaxmi Jewellers are two different entities was not taken before the learned Trial Court or the learned Appellate Court. It is impermissible to take this plea before this Court in the revisional jurisdiction. The learned Courts below had rightly held that the issuance of the cheque was not disputed, and a presumption would arise that the cheque was issued in discharge of the legal liability. The cheque

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was dishonoured with an endorsement ‘funds insufficient’, and the accused failed to pay the amount despite the receipt of the valid notice of demand. Learned Trial Court below had rightly convicted and sentenced the accused, and learned Appellate Court had rightly upheld the judgment and order passed by learned Trial Court. Hence, he prayed that the present petition be dismissed.

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

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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 the revisional court does not exercise an appellate jurisdiction 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,

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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.

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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 397CrPC, which vests the court with the power to call for and examine records of an inferior court, is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in such proceedings.

¶48

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 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

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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 a charge is a much-advanced stage in the proceedings under the CrPC.”

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16. This Court in the aforesaid judgment in Amit Kapoor case [ Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986 ] has also laid down principles to be considered for exercise of jurisdiction under Section 397 particularly in the context of prayer for quashing of charge framed under Section 228CrPC is sought for as under : ( Amit Kapoor case [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986 ], SCC pp. 482-83, para 27)

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“ 27 . Having discussed the scope of jurisdiction under these two provisions, i.e., Section 397 and Section 482 of the Code, and the fine line of jurisdictional distinction, it will now be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but inherently impossible to state such principles with precision. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of

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the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be:

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27.1 . Though there are no limits to the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly the charge framed in terms of Section 228 of the Code, should be exercised very sparingly and with circumspection, and that too in the rarest of rare cases.

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27.2 . The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion, and where the basic ingredients of a criminal offence are not satisfied, then the Court may interfere.

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27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in a conviction or not at the stage of framing of charge or quashing of charge.

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27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.

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27.13 . Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even

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broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records, but is an opinion formed prima facie.”

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17. The revisional court cannot sit as an appellate court and start appreciating the evidence by finding out inconsistencies in the statement of witnesses, and it is not legally permissible. The High Courts ought to be cognizant of the fact that the trial court was dealing with an application for discharge.

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This position was reiterated in State of Gujarat v. Dilipsinh

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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 397CrPC, which vests the court with the power to call for and examine records of an inferior court, is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in such proceedings.

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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)

¶74

“ 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

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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 much-advanced stage in the proceedings under CrPC.”

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16. This Court in the aforesaid judgment in Amit Kapoor case [ Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986 ] has also laid down principles to be considered for exercise of jurisdiction under Section 397 particularly in the context of prayer for quashing of charge framed under Section 228CrPC is sought for as under : ( Amit Kapoor case [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986 ], SCC pp. 482-83, para 27)

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“ 27 . Having discussed the scope of jurisdiction under these two provisions, i.e. Section 397 and Section 482 of the Code, and the fine line of jurisdictional distinction, it will now be appropriate for us to enlist the principles with reference to which the courts should exercise such

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jurisdiction. However, it is not only difficult but inherently impossible to state such principles with precision. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be:

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27.1 . Though there are no limits to the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly the charge framed in terms of Section 228 of the Code, should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.

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27.2 . The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion, and where the basic ingredients of a criminal offence are not satisfied, then the Court may interfere.

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27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in a conviction or not at the stage of framing of charge or quashing of charge.

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27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.

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27.13 . Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records, but is an opinion formed prima facie.”

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17. The revisional court cannot sit as an appellate court and start appreciating the evidence by finding out inconsistencies in the statement of witnesses, and it is not legally permissible. The High Courts ought to be cognizant of the fact that the trial court was dealing with an application for discharge.

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It was held in Kishan Rao v. Shankargouda , (2018) 8 SCC 165: (2018) 3 SCC (Cri) 544: (2018) 4 SCC (Civ) 37: 2018 SCC OnLine SC 651 that it is impermissible for the High Court to reappreciate the evidence and come to its conclusions in the absence of any perversity. It was observed on page 169:

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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 [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 supervisory jurisdiction exercised

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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 tantamount to a gross miscarriage of justice. On scrutinising the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation in concluding that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence. …”

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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 [Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke, (2015) 3 SCC 123: (2015) 2 SCC (Cri) 19] . This Court held that the High Court, in the exercise of revisional jurisdiction, shall not interfere with the order of the Magistrate unless it is perverse or wholly unreasonable or there is non-consideration of any relevant material, the order cannot be set aside merely on the ground that another view is possible. The following has been laid down in para 14: (SCC p. 135)

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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

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jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law 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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14. In the above case, also a conviction of the accused was recorded, and the High Court set aside [ Dattatray Gulabrao Phalke v. Sanjaysinh Ramrao Chavan, 2013 SCC OnLine Bom 1753] the order of conviction by substituting its view. This Court set aside the High Court's order, holding that the High Court exceeded its jurisdiction in substituting its views, and that too without any legal basis.

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

¶114

Karan Goel (CW1) stated that he is running a shop at 191/1, Lower Bazar, Shimla, in the name of M/s Mahalaxmi Jewellers. Usha Goel is its proprietor. He proved the Special Power of Attorney (Ex.CW1/A) executed by Usha Goal, Proprietor of M/s Mahalaxmi Jewellers, Shop No. 191/9, Lower Bazar, Shimla, in his favour. He also proved a certificate of registration issued in the name of Ms. Usha Goel in the name and style of M/s Mahalaxmi Jewellers, 191/9, Lower Bazar, Shimla. Thus, it is apparent that Ms. Usha Goel is the proprietor of Mahalaxmi Jewellers.

¶115

Karan Goel (CW1) stated that the accused purchased the jewellery worth ₹ 5,51,973/- in the year 2015. A cash credit memo/voucher (Ex. CW1/C) was prepared regarding this transaction. The cash credit memo (Ex.CW1/C) has been issued in the name of Goel’s Mahaluxmi Jewellers, 191/9, Lower Bazar, Shimla-171001. Thus, it is apparent from the bare perusal of the cash credit memo that it has not been issued in the name of Mahalaxmi Jeweller, owned by complainant Mrs. Usha Goel.

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The Cash Credit Memo mentions the licence No.GS/SML/88, dated 4.1.1988, whereas the registration certificate mentions the Central Sales Tax Registration No. SIM/CST3128, which was issued on 18.5.1987. Therefore, the numbers mentioned in the certificate of registration (Ex.CW1/B) and the cash credit memo (Ex.CW1/C) do not tally each other. Karan Goel (CW1) denied in his cross-examination that the name of the shop was mentioned as Goel’s Mahaluxmi Jewellers in the bill book/memo. He volunteered to say that the bill book mentioned Goel’s Mahaluxmi. The shop is in the name of Mahaluxmi Jewellers and belongs to Goel. This explanation is no explanation. Not only are the spellings of Mahaluxmi Jewellers different, but the registration number is also different. There is nothing to connect the complainant, Usha Goel, to Goel’s Mahaluxmi Jewellers, which had effected the sale.

¶119

The cheque (Ex.CW1/D) was issued in the name of Mahalaxmi Jewellers. However, the evidence on record does not show that Mahalaxmi Jewellers, owned by the complainant and Goel’s Mahaluxmi Jewellers, which had sold the jewellery to the accused vide Cash Credit Memo (Ex.CW1/C), are the same entities. Therefore, the evidence on record is insufficient to

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show that the cheque was issued in favour of the complainant in discharge of the legal liability.

¶123

It was submitted that the accused is taking advantage of the fact that the word ‘Goel’ has not been mentioned in the cheque, and the explanation provided by Karan Goel that Mahaluxmi Jewellers is owned by Goel, therefore, Goel’s Mahaluxmi Jewellers has been mentioned in the cash memo is a reasonable explanation. This submission will not help the complainant. The complainant has to prove her case beyond a reasonable doubt, and any doubt in her case would go to the benefit of the accused. The matter would have been different had the registration number been the same; however, in the present case, the registration number is different, the name is different, and the date of registration is different. Therefore, a reasonable doubt arises whether Goel’s Mahaluxmi Jewellers and Mahalaxmi Jewellers are the same concerns owned by the same person or not, and the benefit of such doubt has to be given to the accused.

¶124

Both the learned Courts below proceeded on the basis that the issuance of the cheque was not disputed, and a

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presumption would arise that the cheque was issued in discharge of the legal liability for valuable consideration. There can be no dispute with the proposition of law that when the issuance of the cheque is not disputed, a presumption would arise that the cheque was issued in discharge of the legal liability. However, the presumption is rebuttable. When the evidence of the complainant itself shows that the liability was towards Goel’s Mahaluxmi Jewellers, having a different licence number, a cheque issued in the name of Mahalaxmi Jewellers owned by the complainant cannot be said to be in the discharge of the legal liability.

¶128

It was submitted that no plea was taken before the learned Trial Court or the learned Appellate Court, that the Mahalaxmi Jewellers and Goel’s Mahaluxmi Jewellers are two distinct entities. This submission is not acceptable. It was stated by Karan Goel (CW1) that the bill book was in the name of Goel’s Mahaluxmi Jewellers, and the liability towards Mahalaxmi Jewellers was specifically disputed. Further, the existence of the legally enforceable debt is a jurisdictional fact and can be assailed in the revision. The cheque has to be issued in discharge of the legal liability before a person can be convicted of the

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commission of an offence punishable under Section 138 of the NI Act, and when there is no legally enforceable debt, the Courts do not acquire a jurisdiction to try and convict the accused. Therefore, there is no bar to raise the jurisdictional question during the revisional jurisdiction.

¶132

Both the learned Courts below did not advert to this aspect of the case. Learned Trial Court erred in convicting and sentencing the accused, and learned Appellate Court erred in upholding the judgment and order passed by learned Trial Court.

¶133

In view of the above, the present revision is allowed, and the judgment of conviction and order of sentence dated 1.7.2024, passed by the learned Trial Court, affirmed by the learned Appellate Court in Criminal Appeal No. 262 of 2024, dated 27.9.2024, are ordered to be set aside.

¶134

In view of the provisions of Section 437-A of the Code of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha Sanhita, 2023) the petitioner is directed to furnish bail bonds in the sum of ₹25,000/-with one surety in the like amount to the satisfaction of the learned Trial Court within four weeks, which shall be effective for six months with stipulation that in the

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event of Special Leave Petition being filed against this judgment,

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or on grant of the leave, the petitioner on receipt of notice thereof, shall appear before the Hon’ble Supreme Court.

¶139

A copy of this judgment, along with the record of the learned Courts below, be sent back forthwith. Pending applications, if any, also stand disposed of.

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( Rakesh Kainthla) Judge

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18^th August 2025 (Chander)

Pushpa Devi Thapa v. Usha Goel and Another

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Pushpa Devi Thapa v. Usha Goel and Another

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Ajay Kumar Vs State of Hp

Virender Singh Alias Gullu Vs State of Hp

Saurav Negi Vs State of Hp

Surya Rashmi Rawat Vs the State of Hp and Others