Kamlesh Chand Vs State of Hp and Anr.

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Criminal Revision No.675 of 2025 Date of Decision: 20.03.2026

_________________________________________________________________________ Shri Kamlesh ……...Petitioner Versus State of Himachal Pradesh & Anr.

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…....Respondents

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Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? For the Petitioner: Mr. Pranav Sharma, Advocate. For the Respondent: Mr. Rajan Kahol & Mr. Vishal Panwar, Additional Advocates General with Mr. Ravi Chauhan & Mr. Anish Banshtu, Deputy Advocates General, for the respondent-State. Mr. Maan Singh, Advocate, for respondent No.2.

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Sandeep Sharma, J. (Oral)

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Instant criminal revision petition filed under Section 438 of Bharatiya Nagrik Suraksha Sanhita, lays challenge to judgment dated 24.03.2025 passed by the learned Sessions Judge, District Kullu, Himachal Pradesh, in Criminal Appeal No.48/2024, affirming the judgment of conviction and order of sentence dated 27.02.2024, passed by the learned Judicial Magistrate First Class, Manali, District Kullu, H.P. in criminal complaint No.154/2021, whereby the learned Court below, while holding

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the petitioner-accused (in short the "accused") guilty of having committed offence punishable under Section 138 of the Negotiable Instruments Act (in short the "Act”), convicted and sentenced him to undergo simple imprisonment for a period of six months and pay compensation to the tune of Rs.4,10,000/- to respondent No.2-complainant (in short the "complainant").

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Precisely, the facts of the case, as emerge from the pleadings as

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well as other material adduced on record by the respective parties are that complainant instituted a complaint under Section 138 of the Act before the learned Judicial Magistrate First Class, Manali, District Kullu, H.P., alleging therein that in the month of May, 2021, the accused approached the complainant for financial help and represented that he was in urgent need of money to the extent of Rs.3,50,000/- for his business purpose and requested him to lend and advance the aforesaid amount. Complainant alleged that on the request made by the accused, he lent sum of Rs.3,50,000/- to the accused in two installments for a short term. With a view to discharge his liability, accused had issued cheque bearing No.217468 dated 02.08.2021 for a sum of Rs.3,50,000/- in favour of the complainant, but aforesaid cheque on its presentation was dishonoured on

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account of insufficient funds in the bank account of the accused. Since accused failed to make the payment good within the stipulated period despite his having received legal notice dated 10.08.2021, 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 27.02.2024, 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 the learned Court below, accused preferred an appeal before the learned Sessions Judge, District Kullu, Himachal Pradesh, but same was dismissed vide judgment dated 24.03.2025. In the aforesaid background, accused has approached this Court in the instant proceedings, praying 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 04.12.2025, this Court suspended the substantive sentence imposed by the learned Court below subject to accused 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 deposit the amount, 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 Sessions Judge, District Kullu, 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. Pranav Sharma, learned counsel for the accused, 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

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scope left for this Court to interfere. Evidence led on record by the parties, especially statement of accused under Section 313 Cr.P.C. clearly reveals that there is no denial, if any, on the part of accused with regard to issuance of cheque as well as his signatures thereupon. Since factum of issuance of cheque as well as signatures thereupon never came to be refuted at the behest of accused, both the learned Courts below rightly invoked Sections 118 and 139 of the Act, which talk about presumption in favour of holder of cheque that cheque in question was issued towards discharge of lawful liability.

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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. In his statement recorded under Section 313 Cr.P.C., accused admitted that he received legal notice, but maintained that neither had given the cheque to the complainant nor there was any transaction with him. Accused nowhere denied his signatures on the cheque, rather admitted the same. As has been noticed hereinabove, if the defence taken by the accused during the cross-examination of CW-1, is taken into consideration, then onus was upon the accused to prove on

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record that the cheque in question was given to Gaurav and such onus could have been discharged by examining Gaurav in his defence, but neither Gaurav was examined as witness nor any record was produced to establish that he had already discharged his liability.

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To the contrary, complainant successfully proved on record cheque amounting to Rs.3,50,000/- dated 02.08.2021 Ext.C-2/CW-1, its dishonour vide memo dated 03.08.2021 Ext.C-3/CW-1 with the remarks “funds insufficient”, legal notice dated 10.08.2021 Ext.C-4/CW-1, postal receipt dated 11.08.2021 Ext.C-5/CW-1. Factum with regard to receipt of legal notice by the accused was duly proved by placing on record acknowledgment due Ext.C-6/CW-1, which bears the signature of the accused. Though there is ample evidence adduced on record by the complainant to prove factum of lawful liability of the accused towards him, but even otherwise he has nowhere disputed factum with regard to his having issued cheque.

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10. 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.

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11. 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 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 would be prof f i table 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

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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

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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 examined himself as CW-1 and tendered his affidavit Ext.C-1/CW-1 in his examination-in-chief, wherein he reiterated the facts as averred in the complaint. 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-inchief. In his cross-examination, CW-1 denied that he had neither any acquaintance with the accused nor any transaction took place with him. Though he admitted that he does not know the family members of the accused, but he stated that accused demanded money on the premise that his father was ill. He admitted that he did not enquire about the ailment of the father of the accused, but categorically stated that factum of issuance of cheque in his favour. He denied that accused given the cheque to one Gaurav and Gaurav gave this cheque to him. He denied that he had no money transaction with the accused and he had filed a false complaint against him. Pattern of the cross-examination conducted by the accused

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itself suggests that cheque in question was issued, but not in the name of the complainant, rather in the name of Gaurav.

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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

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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

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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

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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 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. 17. 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 15 days to serve the sentence as awarded by the learned trial Court, if not already served. Interim direction, if any, stands vacated. Bail bonds, if any, are discharged. Pending applications, if any, also stand disposed of.

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March 20, 2026 (sunil)

Kamlesh Chand v. State of Hp and Anr.

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Kamlesh Chand v. State of Hp and Anr.

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