Allowed

Bhagirath v. Yoginder Sharma

Himachal Pradesh HC15 Jul 2026CR.R/358/2025

Case brief

AI extract

What is this about?

Conviction under Section 138 of the Negotiable Instruments Act was challenged as based on a premature complaint filed before expiry of the statutory period following presumptive service of demand notice. Following Subodh S. Salaskar, the High Court held the complaint premature, quashed the convictions and acquitted the accused.

What did the court decide?

Revision petitions allowed; judgments of conviction and sentence by trial Court and Sessions Judge set aside; petitioner-accused acquitted.

Bhagirath Vs Yoginder Sharma — Cheque Dishonour | Himachal Pradesh HC (2026)

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THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. Revision No.358 of 2025 with

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Cr. Revision No.325 of 2025

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Date of Decision: 15.07.2026

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_______________________________________________________ 1. Cr. Revision No.358of 2025
Bhagirath …….Petitioner
Versus
Yoginder Sharma … Respondent
2. Cr. Revision No.325 2025
Bhagirath …….Petitioner Versus
Yoginder Sharma … Respondent
_______________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting?¹
For the Petitioner(s) : Mr. Maan Singh, Advocate.
For the Respondent(s) : Mr. Deepak Sharma, Advocate.
_______________________________________________________ Sandeep Sharma, Judge (oral):
Since common questions of law and facts are involved in
both the petitions and the petitioners_( hereinafter referred to as the_
_‘accused’)_in both the cases, are aggrieved of common judgment
dated 24.05.2025, passed by learned Sessions Judge, Solan, District
Solan, Himachal Pradesh, in Cr. Appeal No.01-SS/10 of 2024 and Cr.
Appeal No.30-S/10 of 2024, affirming judgment of conviction and
order of sentence dated 19.04.2024, passed by learned Judicial

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1 Whether the reporters of the local papers may be allowed to see the judgment?

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Magistrate, First Class, Kandaghat, District Solan, Himachal Pradesh, in Criminal case No.28/3 of 2015, titled Yoginder Sharma vs. Bhagirath Sharma , this Court, after having clubbed both the petitions, heard the same together and now same are being disposed of by this common order. However, for the sake of clarity, the facts of Cr. Revision No.358 of 2025, titled as Bhagirath vs. Yoginder Sharma, are being discussed herein below.

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2. Instant Criminal Revision petitions filed under Section 438 read with Section 442 of the Criminal Procedure Code, lays challenge to judgment dated 24.05.2025, passed by learned Sessions Judge, Solan, District Solan, Himachal Pradesh, in Cr. Appeal No.01SS/10 of 2024, affirming judgment of conviction and order of sentence dated 19.04.2024, passed by learned Judicial Magistrate, First Class, Kandaghat, District Solan, Himachal Pradesh, in Criminal case No.28/3 of 2015, titled Yoginder Sharma vs. Bhagirath Sharma, whereby learned trial Court, while holding petitioner-accused (hereinafter referred to as the ‘accused’) guilty of his having committed an offence punishable under Section 138 of the Negotiable Instruments Act ( for short ‘Act’), convicted and sentenced him to undergo simple imprisonment for a period of three months and pay compensation to the tune of Rs. 2,80,000/- to the respondentcomplainant (hereinafter referred to as the ‘complainant’).

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Precisely, the facts of the case, as emerge from the

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pleadings as well as other documents adduced on record by the respective parties, are that the respondent-complainant instituted a complaint under Section 138 of the Act in the competent Court of law, alleging therein that he is owner of two tippers and accused engaged both of his tippers for carrying out construction work on the ShoghiAkhbarachowki- Paoghat-Kot Bodhan road for Rs. 3,400/- per day per tipper. Complainant claimed that he, along with his son, had been running business and he supplied construction materials such as stone, sand, grit, etc., to the accused on his demand from 07.09.2013 and 25.09.2014. Accused with a view to discharge his lawful liability, issued cheque of Rs. 2,00,000/-, dated 05.06.2014 in favour of the complainant, cheque of Rs. 2,06,170/-, dated 20.06.2014 and cheque of Rs. 2,00,000/-, dated 10.08.2014 in the name of the complainant's son, Dinesh Sharma, but same were dishonored on account of "insufficient funds" in the bank account of the accused. Subsequently accounts were settled between complainant and the accused on 30.09.2014 at Solan and thereafter, Ikrarama was reduced into writing. Through, this writing accused agreed to pay a sum of Rs. 5,50,000/- and in order to discharge his liability, issued two post-dated cheques of Rs. 3,00,000/- and Rs. 2,50,000/- drawn on Syndicate Bank at Solan. However, cheque bearing No.038440,

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dated 10.04.2015, amounting to Rs.2,50,000/- of Syndicate Bank Solan, on its presentation to the bank concerned was dishonoured by the Jogindra Central Cooperative Bank (JCCB), Kandaghat vide intimation dated 23.04.2015 alongwith returning memo dated 21.04.2015 on account of "insufficient funds. Immediately after receipt of aforesaid return memo, complainant issued legal notice dated 11.05.2015 through registered post sent on 13.05.2015, thereby calling upon the accused to make the payment good within stipulated time. Since despite service, accused did not pay the cheque amount, complainant had no option, but to initiate proceedings under Section 138 of the Act in the competent Court of law, which subsequently, on the basis of evidence adduced on record by the respective parties, held accused guilty of his having committed offence punishable under S. 138 of the Act and accordingly, convicted and sentenced him as per description given herein above.

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Being aggrieved and dissatisfied with the aforesaid judgment of conviction and order of sentence passed by the learned trial Court, the petitioner-accused preferred an appeal before the Court of the learned Sessions Judge, Solan, Himachal Pradesh, but the said appeal also came to be dismissed vide judgment dated 24.05.2025. At the same time, the appeal preferred by the respondent-complainant seeking enhancement of the compensation

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amount was allowed, whereby the compensation was enhanced from Rs.2,80,000/- to Rs.3,85,000/-. After adjusting sum of Rs.10,000/already paid during the course of the trial, the petitioner-accused was directed to pay a total compensation of Rs.3,75,000/-. In the aforesaid background, petitioner-accused has approached this Court in the instant proceedings by way of filing two revision petitions, as detailed hereinabove, praying therein for his acquittal after quashing and setting aside the impugned judgment of conviction and order of sentence recorded by Courts below.

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Precisely, the grouse of the petitioner, as has been highlighted in the petitions and further canvassed by Mr. Maan Singh, learned counsel representing the petitioner(s), is that both the courts below have fallen into grave error inasmuch as entertaining the complaint under Section 138 of the Act, despite its being filed prematurely. Mr. Maan Singh, learned counsel representing the petitioner-accused, vehemently argued that in the case at hand return memo was received on 23.04.2015 and thereafter, within a period of thirty days, legal notice (Ex. CW1/E), dated 11.03.2015 was sent through registered post on 13.05.2015, thereby calling upon the petitioner-accused to make the payment good within a period of fifteen days. He further submitted that since no evidence, worth credence, ever came to be led on record with regard to actual service

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of the aforesaid legal /demand notice, the complainant ought to have waited for a period of forty-five days before filing complaint in the competent Court of law. He further submitted that it is by now wellsettled that where there is no proof of service, but the complainant is able to establish that legal notice was sent on the correct address, the same shall be presumed to have been served on the correct address after a period of thirty days. He submitted that a further fifteen days' period is also required to be given to the petitioner-accused for making the payment, if any. However, in the instant case, the complainant proceeded to file complaint prematurely on 23.06.2015. Mr. Maan Singh, learned counsel representing the petitioner, during his submissions, fairly stated that he does not intend to raise any other ground, save and except with regard to the complaint being premature, and as such, this Court need not go into other aspects of the matter.

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On the other hand, Mr. Deepak Sharma, learned counsel representing the respondent-complainant, while fairly admitting the factum with regard to the complainant having been filed the complaint on 23.06.2015, submitted that since it could be safely presumed that legal / demand notice sent by the complainant through registered post on 13.05.2015 was received within a period of seven days, no illegality can be said to have been committed by the complainant by

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filing complaint under Section 138 of the Negotiable Instruments Act on 23.06.2015. In support of his aforesaid submission, he placed reliance upon the judgment passed by the Hon'ble Punjab and Haryana High Court in the case titled " Vee Kay Concast Private Limited vs. M/s Stanley Products and others" in CRM-A -1920-MA of 2016(O&M), dated 29.01.2025

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Careful perusal of the record clearly reveals that though legal notice (Ex. CW1/E) was prepared on 11.03.2015, but same was sent through registered post on 13.05.2015. Admittedly, no proof of service of the aforesaid notice ever came to be led on record by the complainant and as such, service of the legal /demand notice could have been only presumed, as has been held by the Hon'ble Apex Court in case titled Subodh S. Salaskar v. Jayprakash M. Shah & Anr., (2008) 13 SCC 689, wherein it came to be ruled that where there is no proof of service of notice, but complainant is able to establish on record that the he had sent legal/ demand notice on the correct address, a period of 30 days ordinarily must be held to be sufficient for the service of such notice. Admittedly, in the case at hand, no cogent and convincing evidence with regard to service of notice ever came to be on record by the complainant. Neither the registered acknowledgment was placed on record, nor any official from the postal department ever came to be examined to prove the

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service of legal/ demand notice sent through registered post and as such, in afore situation, service, if any, of the legal/ demand notice could have been presumed, but after expiry of 30 days from the date of issuance of legal notice. Admittedly, legal notice in the case at hand was sent through registered post on 13.05.2015 and same could be presumed to be served upon the accused on 11.06.2015 i.e. after expiry of 30 days, whereafter further 15 days time was required to be given to the accused for making the payment, if any, in terms of legal/demand notice.

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At this stage, it would be profitable to take note of the judgment passed by Hon'ble Apex Court in Subodh S. Salaskar case (supra), which reads as under:-

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“21. In Jindal Steel and Power Ltd. v. Ashoka Alloy Steel Ltd. [(2006) 9 SCC 340 : (2006) 2 SCC (Cri) 540] this Court held: (SCC p. 341, para 2)

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“ 2 . By the impugned order, the High Court has quashed the prosecution under Section 138 of the Negotiable Instruments Act, 1881 (for short “the Act”) and Section 420 of the Penal Code, on the sole ground that the complaint was filed two days after the expiry of limitation. In the present case, notice was sent under Section 138 of the Act on 4-1-1997, which was served on the accused on 101-1997, giving him 15 days' time for making payment, which expired on 25-1-1997. Cause of action to file the complaint accrued on 26-1-1997, which day has to be excluded in computing the period of limitation, as required under Section 12(1) of the Limitation Act, 1963. Therefore, the limitation would be counted from 27-1-1997 and the complaint was filed on 26-2-1997, within a period of one month from that date, as such, the same was filed well within time. We find that the point is concluded by a judgment of this Court in Saketh India Ltd. v. India Securities Ltd. [(1999) 3 SCC 1 : 1999 SCC (Cri) 329] in which case taking into consideration the provisions of Section 12(1) of

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the Limitation Act, it was laid down that the day on which cause of action had accrued has to be excluded for reckoning the period of limitation for filing a complaint under Section 138 of the Act. In the present case, after excluding the day when cause of action accrued, the complaint was filed well within time; as such the High Court was not justified in holding that there was two days' delay in filing the complaint. For the foregoing reasons, we are of the view that the High Court was not justified in quashing prosecution of the respondents.”

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22. In terms of the provisions of the General Clauses Act, a notice must be deemed to have been served in the ordinary course subject to the fulfilment of the conditions laid down therein. Section 27 of the General Clauses Act reads as under:

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“27. Meaning of service by post .—Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression ‘serve’ or either of the expression ‘give’ or ‘send’ or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.”

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23. Thirty days' time ordinarily must be held to be sufficient for service of notice. In fact when the service of notice is sought to be effected by speed post, ordinarily the service takes place within a few days. Even under Order 5 Rule 9(5) of the Code of Civil Procedure, 1908, summons is presumed to be served if it does not come back within thirty days. In a situation of this nature, there was no occasion for the Court to hold that service of notice could not be effected within a period of thirty days.

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24. Presumption of service, under the statute, would arise not only when it is sent by registered post in terms of Section 27 of the General Clauses Act but such a presumption may be raised also under Section 114 of the Evidence Act. Even when a notice is received back with an endorsement that the party has refused to accept, still then a presumption can be raised as regards the valid service of notice. Such a notice, as has been held by a three-Judge Bench of this Court in C.C. Alavi Haji v. Palapetty Muhammed [(2007) 6 SCC 555 : (2007) 3 SCC (Cri) 236] should be construed liberally, stating: (SCC p. 565, para 17)

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“ 17 . It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of criminal law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the GC Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran case [ K. Bhaskaran v. Sankaran Vaidhyan Balan , (1999) 7 SCC 510 : 1999 SCC (Cri) 1284] if the ‘giving of notice’ in the context of clause (b) of the proviso was the same as the ‘receipt of notice’ a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act. ”

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25. The complaint petition admittedly was filed on 20-4-2001. The notice having been sent on 17-1-2001, if the presumption of service of notice within a reasonable time is raised, it should be deemed to have been served at best within a period of thirty days from the date of issuance thereof i.e. 16-2-2001. The accused was required to make payment in terms of the said notice within fifteen days thereafter i.e. on or about 2-3-2001. The complaint petition, therefore, should have been filed by 2-4-2001.”

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The Hon'ble High Court of Punjab and Haryana in case

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titled M/s Vee Kay Concast Private Limited vs. M/s Stanley Products and Ors., held that though there is presumption of service by notice when sent under registered post, however, in case the registered cover containing the notice is not received back as undelivered, no time limit is provided within which service of notice

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upon the addressee is to be presumed. Taking note of Rule 99 of the Indian Post Office Rules, 1933, Hon’ble High Court of Punjab and Haryana arrived at a conclusion that in case the addressee of the article omits to take delivery thereof within 7 days following date of presentation, the article is to be returned to the sender on the 8^th day, unless the addressee has applied within next seven days for its detention. Interestingly, in the afore case, Hon’ble High Court of Punjab and Haryana has taken note of the judgments passed by Hon'ble Apex Court in C.C. Alavi Haji v. Palapetty Muhammed and Anr ., (2007) 6 SCC 555, Subodh S. Salaskar v. Jayprakash M. Shah & Anr., (2008) 13 SCC 689 and M/s Madan & Company vs. Wazir Jaivir Chand, 1989(1) SCC 264, but no attempt has been made to distinguish the same. There is no discussion with regard to the judgment rendered by Hon’ble Apex Court in Subodh S. Salaskar (supra), wherein it has been categorically held that where there is no proof of service, ordinarily notice shall be deemed to be served after expiry of 30 days from the date of issuance of notice. No doubt, judgment rendered by Hon'ble Punjab and Haryana High Court carries persuasive value, but in view of the definite law laid down by the Hon'ble Apex Court in Subodh S. Salaskar ( supra), this Court is not persuaded to consider the law laid by the High Court of Punjab Haryana, as detailed hereinabove.

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Consequently, in view of the detailed discussion made herein above as well as law laid down by the Hon’ble Apex Court, this Court finds merit in the present petitions and the same are accordingly allowed. Since the complaint under Section 138 of the Negotiable Instruments Act, was filed prematurely, the same could not have been entertained by the competent trial Court. Resultantly, the judgment of conviction and order of sentence passed by learned trial Court and subsequently upheld by learned Sessions Judge, Solan, H.P, are hereby quashed and set-aside. The petitioner-accused is acquitted of the charge framed against him.

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Needless to say, on account of dismissal of the complaint on the ground of its being filed prematurely, the complainant cannot be left remediless. Rather, in that situation, the remedy available to him/her is to satisfy the court under the proviso to Section 142(1)(b) for condoning the intervening delay and entertaining the fresh complaint on merits. In this regard, explicit reliance is placed upon the landmark dictum of the Hon’ble Supreme Court in Yogendra Pratap Singh versus Savitri Pandey and another, (2014) 10 SCC 713 , wherein the Apex Court categorically held that the period consumed in pursuing a premature litigation constitutes "sufficient cause," thereby entitling the complainant to satisfy the court under the proviso to

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Section 142(1)(b) for condoning the intervening delay and entertaining

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the fresh complaint on merits .

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(Sandeep Sharma),

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Judge

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July 15, 2026 (shankar)