Criminal revision against conviction under Section 138 of the Negotiable Instruments Act for a dishonoured cheque of Rs.10 lakh. The High Court found the accused failed to rebut statutory presumptions and declined to re-appreciate evidence in view of concurrent findings, dismissing the petition and directing surrender to serve the sentence.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No.224 of 2025
Date of Decision: 10.04.2026
__________________________________________________________________________ Mahesh Kumar ……...Petitioner Versus Tilak Raj …....Respondent
Coram
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?
_____________________________________________________________________________ For the Petitioner: Ms. Mamta, Advocate, vice Mr. Rajeev Sharma, Advocate. For the Respondent: Mr. Rajat Kumar, Advocate. __________________________________________________________________________ Sandeep Sharma, J. (Oral)
Instant criminal revision petition filed under Section 438 read with Section 442 of the Bharatiya Nagrik Suraksha Sanhita, 2023, lays challenge to judgment dated 24.01.2025, passed by the learned Additional Sessions Judge, Rohru, Camp at Theog, District Shimla, Himachal Pradesh, in Criminal Appeal No.301 of 2024, titled Mahesh Kumar Vs. Tilak Raj, affirming judgment of conviction and order of sentence dated 24.12.2019/09.10.2023, passed by the learned Additional Chief Judicial Magistrate, Theog, District Shimla, Himachal Pradesh, in complaint No.306-3 of 2015, whereby the learned trial Court while holding the petitioner-accused (hereinafter, “ accused” ) guilty of having committed offence punishable under Section 138 of the Negotiable Instruments Act (in short the “Act"), convicted and sentenced him to undergo simple
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imprisonment for a period of one year and pay compensation to the tune of Rs.20,00,000/- to the respondent-complainant.
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error while appreciating the evidence, rather this Court finds that both the Courts below have meticulously dealt with each and every aspect of the matter and there is no scope left for interference.
9 . The Hon’ble Apex Court in M/s Laxmi Dyechem V. State of Gujarat , 2013(1) RCR(Criminal), has categorically held that if the accused
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is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. To raise probable defence, accused can rely on the materials submitted by the complainant. Needless to say, if the accused/drawer of the Cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability, statutory presumption under Section 139 of the Negotiable Instruments Act, regarding commission of the ofence f comes into play. It would be proftable to reproduce relevant paras No.23 to i 25 of the judgment herein:-
“23. Further, a three judge Bench of this Court in the matter of Rangappa vs. Sri Mohan [3] held that Section 139 is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies the strong criminal remedy in relation to the dishonour of the cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. The Court however, further observed that it must be remembered that the offence made punishable by Section 138can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose money is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant accused cannot be expected to
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discharge an unduly high standard of proof”. The Court further observed that 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 all preponderance of probabilities.
24. Therefore, if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is inconceivable that in some cases the accused may not need to adduce the evidence of his/her own. If however, the accused/drawer of a cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability, obviously statutory presumption under Section 139 of the NI Act regarding commission of the offence comes into play if the same is not rebutted with regard to the materials submitted by the complainant.
25. It is no doubt true that the dishonour of cheques in order to qualify for prosecution under Section 138 of the NI Act precedes a statutory notice where the drawer is called upon by allowing him to avail the opportunity to arrange the payment of the amount covered by the cheque and it is only when the drawer despite the receipt of such a notice and despite the opportunity to make the payment within the time stipulated under the statute does not pay the amount, that the said default would be considered a dishonour constituting an ofence, hence punishable. But f even in such cases, the question whether or not there was
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lawfully recoverable debt or liability for discharge whereof the cheque was issued, would be a matter that the trial court will have to examine having regard to the evidence adduced before it keeping in view the statutory presumption that unless rebutted, the cheque is presumed to have been issued for a valid consideration. In view of this the responsibility of the trial judge while issuing summons to conduct the trial in matters where there has been instruction to stop payment despite suf fi ciency of funds and whether the same would be a suf fi cient ground to proceed in the matter, would be extremely heavy.”
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that he went to see the land of the accused and paid 5,00,000/- in₹ advance. He further stated that the accused called him in the month of November and informed that he was in need of 5,00,000/-. He further₹ stated that he had paid 5,00,000/- to the accused in between September₹ and November, but he did not remember the date of handing over the money. He stated that he had given all the aforesaid amount to the accused at his house. He stated that he had earned 10,00,000/- from the sale of₹ apples in the year 2013-14. He stated that he was having 7-8 bighas of land and apple orchard existed there. He stated that when he demanded his money back from the accused, he informed that he had spent the money and will return the same when his plot will be sold. He stated that the accused had given Cheque dated 10.05.2015 to him at that time.
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Court in case “State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri” ( 1999) 2 Supreme Court Cases 452, wherein it has been held as under:-
“In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court
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nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice.”
the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order, but learned counsel representing the accused has failed to point out any material irregularity committed by the Courts below while appreciating the evidence and as such, this Court sees no reason to interfere with the well reasoned judgments passed by the Courts below.
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(Sandeep Sharma), Judge
April 10, 2026 (Rajeev Raturi)
2 issues framed by the court
Whether the revisional court could interfere with concurrent findings convicting the accused under Section 138 NI Act for cheque dishonour.
Whether the accused rebutted the statutory presumption under Sections 118 and 139 NI Act that the cheque was issued towards a lawful liability.
Colour shows how this judgement treated each authority
M/s Laxmi Dyechem V. State of GujaratRelied on¶9
M/s Laxmi Dyechem V. State of Gujarat, 2013(1) RCR(Criminal)
State of Kerala Vs. Puttumana Illath Jathavedan NamboodiriRelied on¶13
(1999) 2 Supreme Court Cases 452
Krishnan and another Versus Krishnaveni and anotherReferred¶15
(1997) 4 Supreme Court Case 241
5 provisions across 3 enactments
Mahesh Kumar
Tilak Raj
Sandeep Sharma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
