Criminal revision against conviction under Section 138 NI Act for dishonour of a Rs.6,10,000 cheque towards loan repayment. The High Court found the presumptions under Sections 118 and 139 unrebutted, declined to re-appreciate evidence in revision, upheld the concurrent findings, dismissed the revision and directed surrender.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No.619 of 2025 Date of Decision: 02.04.2026
| _______________________________________________________ Smt. Sushma …….Petitioner Versus |
|---|
| Jammu & Kashmir Bank Ltd. … Respondents |
| _______________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting?1 |
| For the Petitioner : Ms. Pooja Thakur, Advocate. |
| For the Respondent: Mr. Sudhir Bhatnagar, Advocate |
| _______________________________________________________ Sandeep Sharma, Judge (oral): |
Instant Criminal Revision petition filed under Section 438
read with Section 442 of the Bharatiya Nagarik Suraksha Sanhita, lays challenge to judgment dated 02.07.2025 passed by learned Sessions Judge, Kullu, District Kullu, Himachal Pradesh, in Criminal Appeal No.13 of 2023, affirming the judgment of conviction dated 03.03.2023 and order of sentence dated 06.03.2023 passed by learned Chief Judicial Magistrate, Kullu, District Kullu, Himachal Pradesh in Complaint No.72-I/2014 titled Jammu & Kashmir Bank Ltd versus Smt. Sushma , whereby learned trial Court, while holding petitioner-accused ( hereinafter referred to as the ‘accused’) guilty of her having committed an offence punishable under Section 138 of
1 Whether the reporters of the local papers may be allowed to see the judgment?
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the Negotiable Instruments Act( for short ‘Act’), convicted and sentenced her to undergo simple imprisonment for a period of one year and pay compensation to the tune of Rs.12,20,000/- to the respondent-complainant (hereinafter referred to as the ‘complainant’).
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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 having committed offence punishable under S. 138 of the Act and accordingly, convicted and sentenced her as per description given herein above.
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extended, enabling petitioner-accused to deposit the amount, but in vain.
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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 opportunity, accused failed to lead any evidence.
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that he is not aware that particulars written in the cheque are different,
he self stated that same is in the writing of the accused. He also denied the suggestion that accused did not issue the cheque and no notice was issued prior to filing complaint. He also stated that five recovery cases have been filed against the accused, but denied that he has no authority letter given by the bank to file this case.
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19.07.2014 along with AD Ext. C-6 , coupled with the fact that accused neither replied the notice nor paid the cheque amount, Court below rightly allowed the complaint filed under Section 138 of the Act. 12. In the cross-examination of CW-1, a suggestion in the shape of admission was put on behalf of the accused that the cheque in question has been handed over by her duly filled. Similarly, defence put to CW-1, by way of suggestions that the cheque in question is given as security and was misused by the bank, further establishes factum with regard to issuance of cheque as well as signatures thereupon. In her statement recorded under Section 313 Cr.P.C accused admitted that she had availed loan to the tune of Rs.4,75,000/- on 10.10.2011 and an outstanding amount of Rs. 6, 10,000/- was due against her till 17.04.2014. 13. 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.
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However, in the instant case, despite sufficient opportunities, petitioner-accused failed to lead any evidence and as such, she otherwise failed to probablize the defence, sought to be raised by her, while deposing under Section 313 Cr.P.C.
“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
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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.
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.
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
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ground to proceed in the matter, would be extremely heavy.
as “security” can also attract offence under Section 138 of the Negotiable Instruments Act. Hon’ble Apex Court in case titl ed Sripati
Singh v. State of Jharkhand , Criminal Appeal No. 1269-1270 of
2021, decided on 28.10.2021, has held as under:
“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.
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
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in respect whereof the cheque in question is issued, same would
attract provision of Section 138 of the Act in case of its dishonour.
“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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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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upon proper appreciation of evidence available on record and as such, same are upheld.
(Sandeep Sharma), Judge
April 02, 2026
(shankar)
2 issues framed by the court
Whether the concurrent convictions under Section 138 NI Act by the trial court and Sessions Court were sustainable despite the accused's claim that the cheque was misplaced/misused.
Whether the statutory presumptions under Sections 118 and 139 NI Act stood rebutted by the accused.
Colour shows how this judgement treated each authority
M/s Laxmi Dyechem V. State of Gujarat, 2013(1) RCR(Criminal)Relied on¶14
Sripati Singh v. State of Jharkhand, Criminal Appeal No. 1269-1270 of 2021Relied on¶15
State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri, (1999) 2 Supreme Court Cases 452Applied¶18
Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court Case 241Distinguished¶20
6 provisions across 3 enactments
Smt. Sushma
Jammu & Kashmir Bank Ltd.
Sandeep Sharma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
