Sandeep Kumar Vs Mohan Lal

THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Revision No.549 of 2024

Date of Decision: 01.04.2026

___________________ Sandeep Kumar	__________________ Versus	__________________ …….Petitioner
Mohan Lal		… Respondent
___________________ Coram:	__________________	__________________

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Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting?¹

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For the Petitioner	:	Mr. Lakshay Thakur, Advocate.
For the Respondent	:	Mr. Bhupinder Singh Kanwar, Advocate.
___________________ Sandeep Sharma, Jud	___ ge (o	_________________________________ ral):

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Instant Criminal Revision petition filed under Section 442 of the Bharatiya Nagarik Suraksha Sanhita, lays challenge to judgment dated 25.05.2024 passed by learned Additional Sessions Judge-1, Shimla, District Shimla, Himachal Pradesh, in Criminal Appeal No.27-S/10 of 2022, affirming the judgment of conviction dated 06.04.2022 and order of sentence dated 07.04.2022 passed by learned Judicial Magistrate, First Class, Chopal, District Shimla, Himachal Pradesh, in Criminal Case No.07-III of 2015, titled Mohan Lal vs. Sandeep Kumar , whereby learned trial Court, while holding petitioner-accused ( hereinafter referred to as the ‘accused’) guilty

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

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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 one year and seven months and pay compensation to the tune of Rs.7,50,000/- to the respondent-complainant( hereinafter referred to as the ‘complainant’).

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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 complainant filed a complaint under Section 138 of the Act in the competent Court of law, alleging therein that on account of his acquaintance with the accused, he lent sum of Rs.7,00,000/- to the accused on his request, who at that juncture, was in need of money to clear his business liabilities. Though, accused promised to repay the said amount after few months, but since he failed to pay amount within stipulated time, accused issued cheque bearing No.822088, dated 10.10.2014, amounting to Rs. 7,00,000/- drawn on UCO Bank, Nerwa in favour of the complainant. However, fact remains that aforesaid cheque on its presentation to the bank concerned was returned with the remark “insufficient funds ” in account of the accused vide memo dated 29.10.2014. Immediately, after receipt of return memo, complainant served legal notice upon the accused, calling upon him to make the payment good within

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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 accused guilty of 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 recorded by learned trial Court, present petitioner-accused preferred an appeal in the Court of learned Additional Sessions Judge-I, Shimla, District Shimla, Himachal Pradesh, but same also came to be dismissed vide judgment dated 25.05.2024. In the aforesaid background, petitioneraccused has approached this Court in the instant proceedings, 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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Vide order dated 24.09.2024, 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. 25,000/- with one surety in the like amount each to the satisfaction of learned trial Court within a period of

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four weeks. However, fact remains that aforesaid order never came to be complied with. Repeatedly, matter was adjourned, enabling petitioner to comply with the aforesaid order or settle the matter with the complainant, but in vain, and as such, this Court has no option, but to decide the case at hand on its own merits.

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Having heard learned counsel representing the parties and perused material available on record vis-à-vis reasoning assigned in the impugned judgments of conviction and order of sentence recorded by Courts below, 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.

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Complainant, with a view to prove his case, examined himself as CW-1 and tendered his evidence by way of affidavit Ex. CW1/A, wherein he specifically reiterated the averments contained in the complaint. He also successfully proved on record cheque Ex.CW1/B, cheque returning memo Ex.CW1/C, postal receipt Ex. CW1/D, copy of legal notice Ex. CW1/E, copy of pass book of complainant Ex. CW1/F and Ex.CW1/G and copy of account statement of complainant Ex. CW2/A and Ex.CW2/B. Cross-

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examination conducted upon this witness, nowhere suggests that accused was able to extract anything contrary to what this witness stated in his examination-in-chief. In his cross-examination, afore witness deposed that he retired from Army in the year, 2009 and he is having 37-38 bighas of land, upon which he has apple orchard. While admitting that notice was issued on 21.11.2014, this witness admitted that in notice he had not mentioned that earlier also accused had borrowed money from him. He stated that he had given Rs.7, 00,000/to the accused, out of which Rs. 5, 00,000/- were withdrawn from his bank at Nerwa. He deposed that money was withdrawn on 29.03.2014 and accused had demanded money from him on 28.03.2014. While feigning ignorance with regard to filling of cheque Ex. CW1/B, he stated that accused had given this cheque duly filled. He admitted that he had filed 5-6 cases under Section 138 of the Act against the different persons. He denied that he had not given any cash payment to the accused on 29.03.2014. He specifically denied suggestion put to him that blank cheque was given by the accused to him. He also denied that all columns of the cheque were filled by him. Pattern of cross-examination conducted upon complainant clearly established factum with regard to issuance of cheque as well as signatures of accused thereupon.

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CW-2, Sh. Jitender Chauhan, deposed that he was

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posted as Assistant Manager in UCO Bank, Nerwa and he has brought the record. He deposed that cheque Ex.CW1/B was presented in the bank on 29.10.2014, but same was dishonoured due to insufficient funds and regarding same bank issued memo Ex.CW1/C. He deposed that on the same date i.e. 29.10.2014 bank had made entry in cheque returning registered. This witness deposed that on the day of presentation of the cheque, only Rs. 3587/- was in the account of the accused. He also produced on record statement of account Ex. CW2/A. He also stated that on 29.03.2014, sum of Rs. 5,00,000/- was withdrawn from the account of Mohan Lal i.e. accused. Cross-examination conducted upon this witness is of no help to the accused. He admitted that cheque book was issued on 3.4.2010 to accused bearing serial numbers 882081 to 882100. He also admitted that Ex.CW1/C did not bear his signature.

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Accused in his statement recorded under Section 313 Cr.P.C though denied the case of the complainant in toto and claimed himself to be innocent, but despite sufficient opportunities, he failed to lead evidence.

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In the instant case, at no point of time, factum with regard to issuance of cheque as well as signatures thereupon came to be refuted by the petitioner. Accused in his statement recorded

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under Section 313 Cr.P.C, though denied the case of the complainant in toto and claimed that cheque was issued as a security, but to probablize aforesaid defence, no evidence, worth credence, ever came to be led on record despite sufficient opportunities. Once factum with regard to issuance of cheque as well as signatures thereupon never came to be disputed, no illegality can be said to have been committed by 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 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, petitioner-accused failed to lead any evidence and as such, he otherwise failed to probablize the defence, sought to be raised by him, while deposing under Section 313 Cr.P.C.

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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 can rely on the materials submitted by the complainant. Needless to say, if the

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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:-

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

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By now it is well settled that dishonour of cheque issued

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as “security” can also attract offence under Section 138 of the Negotiable Instruments Act. Hon’ble Apex Court in case titl ed Sripati

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

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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,

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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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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 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. 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.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:-

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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

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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

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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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17. Consequently, in view of the discussion made herein

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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 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 himself before the learned trial Court within a period of 15 days 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.

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(Sandeep Sharma), Judge

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April 01, 2026

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(shankar)

Sandeep Kumar v. Mohan Lal

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Sandeep Kumar v. Mohan Lal

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