Dismissed

Ashok Kumar v. Himachal Pradesh Gramin Bank

Himachal Pradesh HC1 Apr 2026CR.R/287/2022

Case brief

AI extract

What is this about?

Conviction under Section 138 NI Act for dishonour of a ₹5 lakh cheque issued to a bank was challenged in revision after failure of settlement under an OTS scheme. The Court held statutory presumptions under Sections 118 and 139 stood unrebutted, a security cheque is not excepted from Section 138, found no error in the courts below, dismissed the revision and directed surrender.

What did the court decide?

None; revision dismissed, petitioner directed to surrender to serve remaining sentence, bail bonds cancelled, interim order vacated.

Ashok Kumar Vs Himachal Pradesh Gramin Bank — Cheque Dishonour | Himachal Pradesh HC (2026)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. Revision No.287 of 2022

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Date of Decision: 01.04.2026

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__________________________________________________________________________ Ashok Kumar ……...Petitioner Versus Himachal Gramin Bank Paunta …....Respondent

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Coram Hon’ble Mr. Justice Sandeep Sharma, Judge.

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Whether approved for reporting?

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_____________________________________________________________________________ For the Petitioner: Mr. Mukul Sood, Advocate. For the Respondent: Ms. Devyani Sharma, Sr. Advocate, with Mr. Anirudh Sharma, Advocate. __________________________________________________________________________ Sandeep Sharma, J. (Oral)

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Instant criminal revision petition filed under Section 397 of the Cr.P.C., lays challenge to judgment dated 05.03.2022, passed by the learned Additional Sessions Judge, Sarkaghat, District Mandi, Himachal Pradesh, in Criminal Appeal No.13/21/19, titled Ashok Kumar Vs. Himachal Gramin Bank Paunta, affirming judgment of conviction and order of sentence dated 20.05.2019/27.06.2019, passed by the learned Additional Chief Judicial Magistrate, Court No.1, Sarkaghat, District Mandi, Himachal Pradesh, in case No.309/2013, 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

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him to undergo simple imprisonment for a period of one year and pay compensation to the tune of Rs.7,70,000/- to the respondent-complainant.

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Precisely, the facts of the case, as emerge from the record are that respondent-complainant (hereinafter, ‘complainant’) instituted a complaint under Section 138 of the Act, in the competent Court of law, alleging therein that accused availed loan of ₹20,00,000/- for purchasing AWM Tipper, but failed to pay the installment regularly. However, subsequently with a view to discharge the lawful liability and regularise his loan account, accused issued Cheque dated 14.01.2013, amounting to ₹5,00,000/-. However, fact remains that afore Cheque on its presentation to the Bank concerned, was dishonoured with the remarks “Funds Insufficient”. After receipt of aforesaid return memo, complainant served accused with a legal notice calling upon him to make the payment good well within stipulated time. However, since petitioner-accused failed to make the payment good within the time stipulated in the legal notice, respondent/complainant was compelled to initiate proceedings under Section 138 of the Act in the Court of learned Additional Chief Judicial Magistrate, Court No.1, Sarkaghat, District Mandi, Himachal Pradesh.

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Learned trial Court on the basis of material adduced on record

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by the respective parties, vide judgment/order dated 20.05.2019/27.06.2019, held the petitioner-accused guilty of having

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committed offence under Section 138 of the Act and accordingly, convicted and sentenced him, as per the description given hereinabove.

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Though, at the first instance, accused preferred an appeal in the Court of learned Additional Sessions Judge, Sarkaghat, District Mandi, Himachal Pradesh, however, same was dismissed vide judgment dated 05.03.2022. In the aforesaid background, petitioner-accused has approached this Court by way of instant proceedings, seeking therein his acquittal after setting aside the judgments of conviction recorded by the Courts below.

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This Court vide order dated 16.03.2023, passed the following

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order:

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“Learned counsel representing the petitioner(s) states that during the pendency of the case matter has been settled under OTS scheme. As per OTS scheme, some amount has been paid, whereas remaining amount shall be paid after sanction of Board of Directors. He states that since petitioner has already paid substantial amount, coupled with the fact that he has already served the sentence for 11 months, this Court while exercising power under Section 147 of the Act, may compound the offence and acquit him of the charge.

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Ms. Devyani Sharma, learned Senior Counsel representing the respondent states that though balance amount, as agreed under OTS scheme, has not been paid by the petitioner, but since some amount has been paid and he has already behind the bars for the last 11 months, this Court may enlarge him on bail at this stage. In view of the aforesaid fair

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stand taken by learned Senior Counsel representing the respondent-bank, petitioner is ordered to be enlarged on bail, subject to his furnishing personal bond in the sum of Rs.10,000/- with one surety in the like amount to the satisfaction of learned trial Court. However, it is made clear that in case amount, as agreed to be paid under OTS scheme, is not paid, bail granted in favour of the petitioners(s) would be cancelled and he would surrender himself to undergo remaining sentence.

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List on 28.3.2023, on which date, petitioner(s) shall remain present in Court.”

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Thereafter, repeatedly matter came to be adjourned, enabling petitioner to settle the matter with the respondent-Bank under the OTS Scheme, however, fact remains that needful has not been done till date and as such, this Court has no option, but to decide the petition on its own merits.

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Having heard learned counsel for the parties and perused material adduced on record, vis-a-vis reasoning assigned in the impugned judgments, this Court sees no reason to agree with Mr. Mukul Sood, learned counsel representing the petitioner, that Courts below have fallen in grave error while appreciating the evidence, rather this Court finds that both the Courts below have meticulously dealt with each and every aspect of the matter and there is no scope left for interference.

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Though, Mr. Sood, learned counsel representing the petitioner, while making this Court peruse evidence adduced on record, attempted to

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argue that both the Courts below failed to appreciate the evidence in its right perspective, but such submission of his deserves outright rejection, being contrary to the record. Since in the case at hand, there is no dispute with regard to issuance of Cheque as well as his signatures thereupon, no illegality can be said to have been committed by both the Courts below while invoking Sections 118 and 139 of the Act, which speak about presumption in favour of the holder of the Cheque that Cheque was issued towards discharge of a lawful liability. No doubt, aforesaid presumption is rebuttable, but to rebut such presumption, accused either can refer to the documents and evidence led on record by the complainant or presumption can be rebutted by leading positive evidence, if any. However, in the case at hand, accused was unable to point out from the documents as well as evidence adduced on record by the complainant that Cheque issued by him was not issued towards discharge of lawful liability.

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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 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

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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:-

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“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 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.

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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

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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.

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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 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

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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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In the case at hand, complainant-Bank examined Mr. D.R. Premi, Branch Manager, as CW-1. In his examination-in-chief, he tendered evidence by way of affidavit Ex.CW1/A, reiterating therein averments contained in the complaint. Apart from above, he also tendered documentary evidence such as Cheque Ex.CW1/B, memorandum Ex.CW1/C, legal notice Ex.CW1/D, postal receipt Ex.CW1/E, acknowledgment Ex.CW1/F and General Power of Attorney Ex.CW1/X. If the cross-examination conducted upon this witness is perused in its entirety, it can be safely concluded that accused was unable to extract anything contrary to what this witness stated in his examination-in-chief. He specifically denied suggestion put to him that Cheque Ex.CW1/B was blank and it was kept as a security.

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In the statement recorded under Section 313 Cr.P.C., accused admitted factum of his having availed loan from the complainant-Bank, but denied that Cheque was issued in faovur of the complainant-Bank. No cogent and convincing evidence ever came to be led on record that Cheque in question was not issued towards discharge of lawful liability. He was unable to prove the circumstances under which Cheque in question came in the possession of complainant-Bank. Though accused attempted to carve out a case that Cheque was misused and it was given as a security,

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however, despite opportunity, he failed to lead any evidence to probabilise aforesaid defence. If the evidence led on record by the respective parties is read in conjunction, this Court sees no reason to differ with the findings returned by the Courts below that complainant successfully proved on record that accused had issued Cheque towards discharge of his lawful liability. Similarly, accused by way of taking defence of issuance of Cheque as security, virtually accepted factum of his having issued the Cheque as well as his signatures thereupon and as such, both the Courts below rightly held accused guilty of the offence punishable under Section 138 of the Act, especially when Cheque in question issued by him was dishonoured on account of insufficient funds.

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Since factum of issuance of Cheque by the accused as well as his signatures thereupon was never disputed, presumption as available under Section 118 and 139 of the Act rightly came to be invoked in the case of the petitioner that Cheque in question was issued in discharge of lawful liability. Since no evidence worth credence ever came to be led on record to rebut the presumption, no illegality can be said to have been committed by the Courts below while holding petitioner/accused guilty for the commission of offence punishable under Section 138 of the Act. Though, defence came to be taken at the behest of the petitioner/accused that Cheque in question was issued as a security, but the same may not be of any help to the accused, for the reason that by now, it is well-settled that

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Cheque, even if issued as a ‘security’ can also be presented for encashment, if amount taken or promised to be repaid is not paid.

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Hon’ble Apex Court in case titled Sripati Singh v. State of Jharkhand, Criminal Appeal No. 1269-1270 of 2021, decided on 28.10.2021, has held as under:

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“16. A cheque issued as security pursuant to a fnancial i transaction cannot be considered as a worthless piece of paper under every circumstance. ‘Security’ in its true sense is the state of being safe and the security given for a loan is something given as a pledge of payment. It is given, deposited or pledged to make certain the fulflment of an obligation to i 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 specifed timeframe and issues a i cheque as security to secure such repayment; if the loan amount is not repaid in any other form before the due date or if there is no other understanding or agreement between the parties to defer the payment of amount, the cheque which is issued as security would mature for presentation and the drawee of the cheque would be entitled to present the same. On such presentation, if the same is dishonoured, the consequences contemplated under Section 138 and the other provisions of N.I. Act would f l ow.”

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Needless to say, expression “Security cheque” is not a statutorily defined expression in the Negotiable Instruments Act, rather same is to be inferred from the pleadings as well as evidence, if any, led on record with regard to issuance of security cheque. The Negotiable

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Instruments Act does not per se carve out an exception in respect of a “security cheque” to say that a complaint in respect of such a cheque would not be maintainable as there is a debt existing in respect whereof the cheque in question is issued, same would attract provision of Section 138 of the Act in case of its dishonour.

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Having scanned the entire evidence adduced on record by the respective parties, this Court finds that all the basic ingredients of Section 138 of the Act are met in the case at hand. Since Cheque issued by accused towards discharge of his lawful liability was returned on account of insufficient funds in the bank account of accused and he despite having received legal notice failed to make the payment good within the stipulated time, complainant had no option but to institute proceedings under Section 138 of the Act, which subsequently rightly came to be decided by both the Courts below on the basis of pleadings as well as evidence adduced on record by the respective parties.

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Moreover, this Court has a very limited jurisdiction under Section 397 of the Cr.P.C to re-appreciate the evidence, especially in view of the concurrent findings of fact and law relied upon by the Courts below. In this regard, reliance is placed upon the judgment passed by Hon’ble Apex

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Court in case “State of Kerala Vs. Puttumana Illath Jathavedan

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Namboodiri” ( 1999) 2 Supreme Court Cases 452, wherein it has been held as under:-

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“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 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.”

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Since after having carefully examined the evidence in the present case, this Court is unable to find any error of law as well as fact, if any, committed by the Courts below, while passing impugned judgments, there is no occasion, whatsoever, to exercise the revisional power.

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True it is that the Hon’ble Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court Case 241; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its

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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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Consequently, in view of the discussion made hereinabove as well as law laid down by the Hon’ble Apex Court, this Court sees no valid reason to interfere with the well reasoned judgments recorded by the Courts below, which otherwise, appear to be based upon proper appreciation of evidence available on record and as such, same are upheld. 20. Accordingly, the present criminal revision petition is dismissed being devoid of any merit. The petitioner is directed to surrender himself before the learned trial Court forthwith to serve the sentence as awarded by the learned trial Court, if not already served. Bail bonds of the petitioner, if any, are cancelled. Interim order dated 16.03.2023 stands vacated. Pending applications, if any, also stand disposed of.

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(Sandeep Sharma), Judge

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April 01, 2026 (Rajeev Raturi)

Ashok Kumar v. Himachal Pradesh Gramin Bank

Case brief

What is this about?

What did the court decide?

Ashok Kumar v. Himachal Pradesh Gramin Bank

Case brief

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