Vijay Kumar Vs Manoj Kumar Sharma

2026:HHC:26587

THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Revision No.367 of 2025 Date of Decision: 03.07.2026

_______________________________________________________ Vijay Kumar …….Petitioner Versus
Manoj Kumar Sharma … Respondent
_______________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting?¹
For the Petitioner : Mr. T.S. Chauhan, Senior Advocate with Mr. Surya Chauhan and Ms. Abhidha Bhardwaj, Advocates.
For the Respondent: Ms. Shrutika Chauhan, Advocate.
_______________________________________________________ Sandeep Sharma, Judge (oral):

¶5

Instant Criminal Revision petition filed under Section 438

¶6

of the Bharatiya Nagarik Suraksha Sanhita, lays challenge to judgment dated 08.05.2025, passed by learned Sessions Judge, Una, District Una, Himachal Pradesh, in Criminal Appeal CIS Registration No.109 of 2024, affirming judgment of conviction and order of sentence dated 13.06.2024/17.06.2024, passed by learned Judicial Magistrate, First Class, Court No.III, Una, District Una, Himachal Pradesh, in Criminal complaint No.327 of 2021, titled as Manoj Kumar Sharma vs. Vijay Kumar, whereby learned trial Court, while holding petitioner-accused (hereinafter referred to as the

¶7

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

¶8

2

¶9

2026:HHC:26587

¶10

‘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.1,50 000/- to the respondent-complainant.

¶11

Precisely, the facts of the case, as emerge from the pleadings as well as other documents adduced on record by the respective parties, are that the respondent-complainant (hereinafter referred to as the ‘complainant’) filed a complaint under Section 138 of the Act in the competent Court of law, alleging therein that on 11.07.2021, accused approached him and requested for sum of Rs. 1, 35,000/- for his business purposes. He alleged that since at the relevant time, he had an amount of Rs. 1, 35,000/- lying in cash at his house, he advanced the said amount to the accused. Accused, with a view to discharge his lawful liability, issued two post dated cheques bearing Nos. 045459 & 045460 dated 190.7.2021, drawn on Bank of India, Branch Office Una, for sum of Rs.1,00,000/- and Rs.35,000/-, respectively. However fact remains that aforesaid cheques on their presentation to the bank concerned were returned unpaid vide memo dated 21.07.2021 with the endorsement “ Exceeds Arrangement ”. Immediately, after receipt of return memo, complainant served accused with legal notice, thereby calling upon him to make payment

¶12

3

¶13

2026:HHC:26587

¶14

good within stipulated time, but since he failed to make the payment good within stipulated time, 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 the 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.

¶15

Being aggrieved and dissatisfied with aforesaid judgment of conviction and order of sentence recorded by learned trial Court, present petitioner-accused preferred an appeal in the Court of learned Sessions Judge, Una, District Una, Himachal Pradesh, but same also came to be dismissed vide judgment dated 08.05.2025. In the aforesaid background, petitioner-accused has approached this Court in the instant proceedings, praying therein for his acquittal after quashing and setting aside the impugned judgments of conviction and order of sentence recorded by Courts below.

¶16

Vide order dated 10.07.2025, this Court suspended the substantive sentence imposed by Court below, subject to petitioneraccused depositing 30% of the compensation amount and furnishing personal bonds in the sum of Rs. 50,000/- with one surety in the like amount to the satisfaction of learned trial Court within a period of four

¶17

4

¶18

2026:HHC:26587

¶19

weeks. However, fact remains that aforesaid order never came to be complied with. On 30.04.2026, it came to be stated before this Court that petitioner is ready and willing to pay the amount of compensation, provided he is given some reasonable time. Accordingly, this Court adjourned the matter for today’s date, with the direction to the petitioner to come present and deposit the amount. However, fact remains that neither the petitioner has come present nor amount has been deposited. In the aforesaid background, this Court has no option, but to decide the petition on its own merit.

¶20

Having heard learned counsel representing the parties and perused material available on record vis-à-vis reasoning assigned in the judgment passed by learned Sessions Judge, Una, affirming the judgment of conviction and order of sentence recorded by learned trial, Court this Court is not persuaded to agree with learned counsel for the petitioner-accused that both the Courts below have failed to appreciate the evidence in its right perspective, 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. 6. Interestingly, in the case at hand, factum with regard to issuance of cheques as well as signatures thereupon never came to be disputed and as such, no illegality can be said to have been committed by the Courts below while, invoking Sections 118 and 139

¶21

5

¶22

2026:HHC:26587

¶23

of the Act, which speak about presumption in favour of the holder of the cheque that cheque was issued towards discharge of 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 instant case, despite sufficient opportunities, no evidence ever came to be led record at the behest of the petitioner-accused to probablize his defence, which he attempted to set up while cross-examining the witness of the complainant.

¶24

In his statement recorded under Section 313 Cr.P.C, accused admitted factum of his having issued cheques in question, but he claimed that same had been issued as a security.

¶25

Complainant, with a view to prove its case, examined himself as CW-1 and tendered his evidence by way of affidavit Ex. CW1/A, wherein he reiterated the averments contained in the complaint. He also tendered in evidence cheques Ex.CW-1/B and Ex.CW-1/D as well as return memos Ex.CW-1/C and Ex.CW-1/E, evidencing that the cheques were dishonoured on account of insufficient funds in the bank account of the accused. He also successfully proved on record that before initiating proceedings under Section 138 of the Act, he had served accused with legal notice,

¶26

6

¶27

2026:HHC:26587

¶28

calling upon him to make the payment good, but he failed to do the needful. If the cross-examination conducted upon afore witness is perused its entirety, it nowhere suggests that accused was able to extract anything contrary to what this witness stated in his examination-in-chief. In his cross-examination, while stating that he is a private contractor, he stated that he used to do the construction work. Though, he admitted that accused was running a shop of cement and saria, but denied that he purchased cement and iron rod from the accused, rather stated that accused had been known to him for considerable period and had approached him on 11.07.2021 to lend him sum of Rs. 1, 35,000/-, which was advanced to him on the same day. While feigning ignorance with regard to denomination of the currency notes given by him, he further stated that his brother Rajesh Kumar was present at the time of lending money to the accused. He also deposed that accused had brought the filled cheques and had given to him on 11.07.2021. He denied that he was having transactions in lakhs with the accused and the accused was having the bills with him. He denied that accused had not given the cheques to him on 11.07.2021. He also denied that entire amount of the material used by him in the construction work is credited to the business account of the accused.

¶29

7

¶30

2026:HHC:26587

¶31

Though, accused attempted to carve out a defence that

¶32

he had not issued the cheques in question to the complainant, but he was not able to probablize aforesaid defence by leading cogent and convincing evidence. In his statement recorded under Section 313 Cr.P.C, as has been taken note hereinabove, he specifically admitted factum with regard to his having issued cheques as well as signatures thereupon, but claimed that cheques were issued as a security. .

¶33

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 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 offence comes into play. It would be profitable to reproduce relevant paras No.23 to 25 of the judgment herein:-

¶34

“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

¶35

8

¶36

2026:HHC:26587

¶37

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.

¶38

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.

¶39

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 offence, 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 the trial in matters where there has been instruction to stop payment despite sufficiency of funds and whether the same would be a sufficient

¶40

9

¶41

2026:HHC:26587

¶42

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

¶43

By now it is well settled that dishonour of cheque issued as “security” can also attract offence under Section 138 of the Negotiable Instruments Act. Hon’ble Apex Court in case titl ed Sripati

¶44

Singh v. State of Jharkhand , Criminal Appeal No. 1269-1270 of

¶45

2021, decided on 28.10.2021, has held as under:

¶46

“16. A cheque issued as security pursuant to a financial 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 fulfilment of an obligation to 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 specified timeframe and issues a 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,

¶47

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 flow.

¶48

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 Instruments Act does not per se carve out an exception in

¶49

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

¶50

10

¶51

2026:HHC:26587

¶52

in respect whereof the cheque in question is issued, same would attract provision of Section 138 of the Act in case of its dishonour.

¶53

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. Similarly, factum with regard to signatures and issuance of cheque by the accused towards discharge of lawful liability stands duly established on record.

¶54

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 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:-

¶55

“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.”

¶56

11

¶57

2026:HHC:26587

¶58

Since after having carefully examined the evidence in the

¶59

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.

¶60

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.

¶61

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 valid reason to interfere with the well reasoned judgments recorded by the Courts below, which otherwise, appear to be based

¶62

12

¶63

2026:HHC:26587

¶64

upon proper appreciation of evidence available on record and as such, same are upheld.

¶65

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 within a period of six weeks to serve the sentence as awarded by the learned trial Court, if not already served. Bail bonds of the petitioner are cancelled. Interim direction, if any, stands vacated. Pending applications, if any, also stand disposed of.

¶66

(Sandeep Sharma), Judge

¶67

July 03, 2026 (shankar)

Vijay Kumar v. Manoj Kumar Sharma

Case brief

What is this about?

What did the court decide?

Vijay Kumar v. Manoj Kumar Sharma

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

All orders in this case

Similar cases

Bhupender Vs Jogindra Central Cooperative Bank Arki

Sachin Chauhan Vs Sania Chauhan and Others

Raja Ram alias Dhan Raj Vs State of Hp

Dinesh Thakur Vs State of Hp and Others

Sanyogita Devi Vs Nirmal Singh and Anr.

Omkar Vs Girja Nand