Dismissed

Pravesh Kumar v. Om Prakash

Himachal Pradesh HC2 Mar 2026CR.R/433/2025

Case brief

AI extract

What is this about?

The High Court dismissed the petitioner's criminal revision petition challenging his conviction under Section 138 of the Negotiable Instruments Act for cheque dishonour. The Court held that the accused failed to rebut the statutory presumption of legally enforceable debt, and the concurrent findings of the lower courts were based on proper appreciation of evidence.

What did the court decide?

Criminal revision petition dismissed. Petitioner directed to surrender to serve sentence. Interim direction vacated. Bail bonds cancelled.

Pravesh Kumar Vs Om Prakash — Cheque Dishonour | Himachal Pradesh HC (2026)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Criminal Revision No.433 of 2025 Date of Decision: 02.03.2026

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_________________________________________________________________________ Pravesh Kumar ……...Petitioner Versus Om Prakash …....Respondent Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? For the Petitioner: Mr. Vinod Chauhan, Advocate. For the Respondent: Mr. Sumit Sharma, Advocate.

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Sandeep Sharma, J. (Oral)

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Instant criminal revision petition filed under Section 442 of Bharatiya Nagrik Suraksha Sanhita, 2023, lays challenge to judgment dated 06.03.2025 passed by the learned Additional Sessions Judge, Paonta Sahib, District Sirmaur, H.P., in Criminal Appeal No.46/2024, affirming the judgment of conviction and order of sentence dated 02.04.2024, passed by the learned Judicial Magistrate First Class, Court No.2 Paonta Sahib, District Sirmaur, H.P. in Criminal Complaint No.328 of 2021, 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 short the "Act”) , convicted and

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sentenced him to undergo simple imprisonment for a period of six months and pay compensation to the tune of Rs.3,00,000/- to the respondentcomplainant (hereinafter "complainant") .

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Precisely, the facts of the case, as emerge from the record are that complainant instituted a complaint under Section 138 of the Act before the competent Court of law, alleging therein that in the month of April 2020, accused borrowed sum of Rs.3,00,000/- from him for his domestic use with further assurance to pay the same within stipulated time. With a view to discharge his lawful liability, though accused issued post dated cheque bearing No.000033 (Ext.C2/CW1) dated 26.12.2020 amounting to Rs.3,00,000/-, drawn on HDFC Bank, Paonta Sahib, but aforesaid cheque on its presentation was returned back vide memo dated 19.03.2021 (Ext.C3/CW1) with the remarks “Funds Insufficient”. Since accused failed to make the payment good within the stipulated period despite his having received legal notice dated 23.04.2017 (Ext.C4/CW1), 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

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by the respective parties, vide judgment/order dated 02.04.2024, held the

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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 Judicial Magistrate First Class, Court No.2 Paonta Sahib, District Sirmaur, H.P., accused preferred an appeal before the learned Additional Sessions Judge, Paonta Sahib, District Sirmaur, H.P., but same was dismissed vide judgment dated 06.03.2025. In the aforesaid background, accused has approached this Court in the instant proceedings, praying therein to set-aside the judgment of conviction and order of sentence recorded by the learned Court below.

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Vide order dated 28.07.2025, this Court suspended the substantive sentence imposed by the learned Court below subject to petitioner’s depositing 30% of the compensation amount and furnishing personal bond in the sum of Rs.50,000/- with one surety in the like amount within a period of four weeks, however, fact remains that aforesaid order was never complied with. Repeatedly time was granted to the accused to comply with the aforesaid order, but in vain.

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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.

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Having heard learned counsel for the parties and perused material available on record vis-a-vis reasoning assigned in the impugned judgment passed by learned Additional Sessions Judge, Paonta Sahib, District Sirmaur, H.P., 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. Vinod Chauhan, 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. Careful perusal of evidence led on record by the complainant as well as statement of the accused recorded under Section 313 Cr.P.C clearly reveals that factum with regard to issuance of cheque as well as signatures thereupon never came to be disputed at the behest of the accused. In his statement recorded under Section 313 Cr.P.C, though he denied of his having borrowed a sum of Rs.3,00,000/- from the complainant, but stated that cheque was not

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issued to the complainant, rather to some other person having similar name as of the complainant and he misused the same. Interestingly, despite there being sufficient opportunities, accused failed to lead evidence to prove his aforesaid defence. Moreover, if the pattern of cross-examination conducted upon the complainant is perused in its entirety, it clearly reveals that sum of Rs. 3,00,000/- was borrowed by the accused from the complainant. Though he claimed that the said amount was returned, as noticed hereinabove, but such fact never came to be proved in accordance with law. 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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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 to say, if the accused/drawer of the cheque in question neither raises a probable

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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

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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 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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In the case at hand, complainant with a view to prove his case

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examined himself as CW-1 and tendered his evidence by way of affidavit Ext.C1/CW1. He categorically stated that accused had borrowed sum of Rs.3,00,000/- from him for domestic use owing to good relations inter se them and in order to discharge the aforesaid lawful liability, he had issued post dated cheque bearing No.000033 (Ext.C2/CW1) dated 26.12.2020 amounting to Rs.3,00,000/-. He also successfully proved that afore cheque on its presentation to the bank concerned was returned vide memo Ext.C3/CW1. Careful perusal of afore cheque (Ext.C2/CW1) shows that it was presented for collection within period of its validity, whereas cheque returning memo Ext. CW3/CW-1 suggests that it was returned to the complainant on 19.03.2021. CW-1 Om Parkash deposed that he got issued legal notice Ext.CW-4/CW-1 to the accused through counsel and the same was sent through registered post as per postal receipt Ext. C-5/CW-1, thereby calling upon him to make the payment of the cheque amount within 15 days from the receipt of the said notice. The Track Consignment Report relating to the registered parcel containing legal demand notice has been proved as Ext.C-6/CW-1, perusal whereof reveals that registered parcel was delivered to the accused on 23.04.2021, but yet he failed to

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make the payment of the cheque amount within stipulated time. Though accused, in his statement recorded under Scction 313 Cr.P.C, claimed that he had not received any notice but track Consignment Report Ext.C6/CW-1, clearly establishes that registered parcel containing legal demand notice was duly served upon the accused. Complaint under Section 138 of the Act came to be filed on 05.06.2021 i.e. within period of 30 days from the expiry of period of 15 days from 23.04.2021. Since accused failed to file reply to the legal notice and did not return the money, complainant otherwise can be said to have proved factum of lawful liability of the accused towards him. In his statement recorded under Section 313 Cr.P.C, accused, while admitting the factum with regard to his having borrowed sum of Rs.3,00,000/- from the complainant, nowhere disputed factum with regard to issuance of cheque in question. He deposed that he had not issued any cheque to the complainant, rather had issued the cheque to some other person of the same name. However, careful perusal of the crossexamination of the complainant conducted by the accused clearly belies his afore defence.

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10. By now it is well settled that dishonour of cheque issued as security can also attract offence under Section 138 of the Negotiable

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Instruments Act. 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 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, 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.”

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11. Needless to say, expression “Security cheque” is not a

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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

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record with regard to issuance of security cheque. The Negotiable 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 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 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

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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 petitioner 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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March 02, 2026 (Sandeep Sharma), (sunil) Judge

Pravesh Kumar v. Om Prakash

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Pravesh Kumar v. Om Prakash

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