Joginder Sharma Vs M/S Goyal Plywood and Glass House

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Criminal Revision No.363 of 2022 Date of Decision: 11.05.2026

_________________________________________________________________________ Joginder Sharma ……...Petitioner Versus M/s Goyal Plywood and Glass House …....Respondent Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? For the Petitioner: Mr. Abhinav Mohan Goel, Advocate. For the Respondent: Mr. Ashok Kumar, Advocate.

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Sandeep Sharma, J. (Oral)

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Instant criminal revision petition filed under Section 397 Cr.P.C read with Section 401 Cr.P.C., lays challenge to judgment dated 11.05.2022 passed by the learned Sessions Judge, Solan, District Solan, Himachal Pradesh, in Criminal Appeal No.25-S/10 of 2020/2019, affirming the judgment of conviction dated 17.09.2019 and order of sentence dated 25.09.2019, passed by the learned Additional Chief Judicial Magistrate, Kasauli, District Solan, Himachal Pradesh, in Criminal Complaint No.458/3 of 2018, whereby the learned Court below, while holding the petitioner-accused (hereinafter "accused") guilty of having committed offence punishable under Section 138 of the Negotiable Instruments Act (in

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short the "Act”) , convicted and sentenced him to undergo simple imprisonment for a period of three months and pay compensation to the tune of Rs.1,50,000/- to the respondent-complainant (hereinafter "complainant") .

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

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that complainant instituted a complaint under Section 138 of the Act before the competent Court of law, alleging therein that he is the sole proprietor of M/s Goyal Plywood and Glass House, Subathu road at Dharampur, District Solan, Himachal Pradesh, which deals in hardware. He alleged that accused purchased hardware goods valuing Rs.1,20,000/from the afore shop on 01.08.2018 and 02.08.2018 on credit basis. He alleged that though with a view to discharge his lawful liability, accused issued cheque bearing No.258297 dated 02.08.2018 amounting to Rs.1,20,000/-, drawn on Bhagat Urban Co-operative Bank Limited, Rabon Branch, Solan, but aforesaid cheque on its presentation to bank concerned was returned back vide memo dated 04.08.2018 with the remarks “Funds Insufficient”. Since accused failed to make the payment good within the stipulated period despite his having received legal notice dated 11.07.2019,

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complainant had no option, but to initiate proceedings under Section 138 of the Act in the competent Court of law.

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Learned trial Court on the basis of material adduced on record by the respective parties, vide judgment/order dated 17.09.2019/ 25.09.2019, held the accused guilty of his having committed offence punishable under Section 138 of the Act and accordingly, convicted and sentenced him as per the description given herein above.

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Being aggrieved and dissatisfied with the aforesaid judgment of conviction recorded by learned Additional Chief Judicial Magistrate, Kasauli, District Solan, Himachal Pradesh, accused preferred an appeal before the learned Sessions Judge, Solan, District Solan, Himachal Pradesh, but same was dismissed vide judgment dated 11.05.2022. In the aforesaid background, accused has approached this Court in the instant proceedings, seeking therein for his acquittal after setting-aside the judgment of conviction and order of sentence recorded by the learned Court below.

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Vide order dated 18.08.2022, this Court suspended the substantive sentence imposed by the learned Court below subject to accused depositing 50% of the cheque amount and furnishing personal

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bond in the sum of Rs.25,000/- with one surety in the like amount within a period of four weeks. Though aforesaid order was complied with, but thereafter repeatedly time was granted to the petitioner to deposit the remaining amount, but in vain. Case file clearly reveals that matter was repeatedly adjourned, enabling the accused to make the balance payment, but in vain.

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6. Today, during the proceedings of the case, learned counsel for the accused submitted that since accused is not coming forward to impart instructions, this Court may proceed to decide the case on its own merits. 7. Having heard learned counsel for the parties and perused material available on record vis-a-vis reasoning assigned in the impugned judgment passed by the learned Sessions Judge, Solan, District Solan, Himachal Pradesh, whereby judgment of conviction and order of sentence recorded by the learned trial Court came to be upheld, this Court is not persuaded to agree with Mr. Abhinav Mohan Goel, learned counsel for the petitioner, that learned Courts below have failed to appreciate the evidence in its right perspective, rather this Court finds that both the Courts below have dealt with each and every aspect of the matter meticulously and there is no scope left for this Court to interfere.

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In the case at hand, complainant, with a view to prove its case, examined Sh. Akash Goyal as CW-1, who by way of tendering affidavit Ext.CW-1/A, reiterated the facts as averred in the complaint. He specifically deposed that accused had purchased hardware goods from his shop on 01.08.2018 and 02.08.2018 for the sum of Rs.1,20,000/- and the cheque was issued by the accused to discharge his lawful liability. He successfully proved on record SPA Ext.CW-1/B, return memo Ext.CW-1/C, cheque Ext.CW-1/D, legal notice Ext.CW-1/E, receipt Ext.CW-1/F, Track report Mark C-1 and copies of bills Ext.CW-1/G, Ext.CW-1/H, Ext.CW1/J. If the cross-examination conducted upon this witness is perused in its entirety, it can be safely concluded that opposite party was unable to extract anything contrary to what this witness stated in his examination-in-chief. In crossexamination, suggestion came to be put to the complainant that though accused had purchased goods less in value but inflated bills were issued to him. By putting aforesaid suggestion, accused admitted factum with regard to his having purchased hardware items from the shop of the complainant. In his statement under Section 313 Cr.P.C, accused nowhere denied factum with regard to issuance of cheque as well as signatures thereupon, rather he attempted to carve out a case that he was only a guarantor and the

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cheque was issued in that capacity, but no explanation ever came to be put forth on his behalf for whom he stood guarantor and in what context, he had issued cheque in question. Name of the principal debtor never came to be revealed by way of statement of the accused and suggestion in that regard was never put to Akash Goyal (CW-1) in his cross-examination. Since factum with regard to issuance of cheque as well as signatures thereupon never came to be disputed, no illegality otherwise can be said to have been committed by learned Courts below, while invoking Section 118 and 139 of the Act.

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No doubt, aforesaid presumption is rebuttable, but to rebut such presumption person seeking to rebut such presumption is expected to raise probable defence. However, in the instant case, no probable defence ever came to be raised.

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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, besides leading evidence in defence, can rely on the materials produced by the complainant. Needless

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to say, if the accused/drawer of the cheque in question neither raises a probable defence nor is 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 comes into play. It f would be prof i table to reproduce relevant paras 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 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 of f ence, hence punishable. But 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

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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 sufcient ground to proceed in the matter, would be extremely heavy.” fi

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Having scanned pleadings as well as evidence adduced on record by the complainant, this Court finds that complainant successfully proved all the ingredients of Section 138 of the Act. Similarly, factum with regard to signatures and issuance of cheque by the accused towards discharge of lawful liability stands duly established on record.

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Moreover, this Court has a very limited jurisdiction under Section 397 of the Cr.PC, to re-appreciate the evidence, especially, in view of the concurrent findings of fact and law recorded by the Courts below. In this regard, reliance is placed upon the judgment passed by Hon’ble Apex Court in case “State of Kerala Vs. Puttumana Illath Jathavedan 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

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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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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 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 herein above as well as law laid down by the Hon’ble Apex Court, this Court sees no 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.

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Accordingly, the present criminal revision petition is dismissed being devoid of any merit. The accused is directed to surrender before the learned trial Court within 15 days to serve the sentence as awarded by the learned trial Court, if not already served. Interim direction, if any, stands vacated. Pending applications, if any, also stand disposed of. Bail bonds, if any, furnished by the accused are cancelled.

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Amount, if any, lying deposited by the accused with the Registry of this court as well as learned trial Court is ordered to be released in favour of the complainant by remitting the same in its saving bank account, detail whereof, shall be furnished within a period of one week.

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May 11, 2026 (Sandeep Sharma), (sunil) Judge

Joginder Sharma v. M/S Goyal Plywood and Glass House

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Joginder Sharma v. M/S Goyal Plywood and Glass House

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