Dheeraj Kumar Vs Asha Devi

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Revision No.700 of 2024 Date of Decision: 21.07.2026

____________________________ Dheeraj Kumar	______________________ Versus	________________________ ……...Petitioner
Asha Devi		…....Respondent

¶4

Coram

¶5

Hon’ble Mr. Justice Sandeep Sharma, Judge.

¶6

Whether approved for reporting?

¶7

For the Petitioner: Mr. Lakshay Parihar, Advocate.

¶8

For the Respondent: Mr. Pranshul Sharma, Advocate.

¶9

Sandeep Sharma, J. (Oral)

¶10

Instant criminal revision petition filed under Section 438 of Bharatiya Nagarik Suraksha Sanhita, 2023, lays challenge to judgment dated 23.05.2024, passed by the learned Sessions Judge, Una, District Una, Himachal Pradesh, in Criminal Appeal No.51 of 2024, titled as Dheeraj Kumar Vs. Asha Devi, affirming judgment of conviction and order of sentence dated 23.11.2023, passed by learned Additional Chief Judicial Magistrate, Court No.1, Una, District Una, Himachal Pradesh, in Complaint Case No.73II-2022, whereby the learned trial Court 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 sentenced him to undergo simple imprisonment for a period

¶11

2 -

¶12

of one year and pay compensation to the tune of ₹3,72,000/- to the respondent-complainant.

¶13

Precisely, the facts of the case, as emerge from the record are that respondent-complainant (hereinafter, ‘complainant’) instituted a complaint under Section 138 of the Act, in the competent Court of law, alleging therein that in the month of November, 2021, accused, Dheeraj Kumar, purchased potatoes from her for total consideration of ₹3,15,000/-, and to discharge his aforesaid legal liability, issued Cheque bearing No.760670 dated 20.11.2021, for a sum of ₹3,00,000/-. However, fact remains that aforesaid Cheque, on its presentation to the Bank concerned, was dishonored vide return memo dated 07.02.2022 with the remarks "Drawers Signatures Differs." Immediately after receipt of the aforesaid return memo, complainant served accused with legal notice dated 21.02.2022, thereby calling upon him to make the payment good within the stipulated time, but since needful was not done, complainant had no option but to institute proceedings under Section 138 of the Act in the competent Court of law.

¶14

Learned trial Court on the basis of material adduced on record by respective parties, vide judgment/order dated 23.11.2023, held the petitioner-accused guilty of having committed offence under Section 138 of the Act and accordingly, convicted and sentenced him, as per the description given hereinabove.

¶15

3 -

¶16

Though, at first instance, accused preferred an appeal in the Court of learned Sessions Judge, Una, District Una, Himachal Pradesh, however, same was dismissed vide judgment dated 23.05.2024. In the aforesaid background, petitioner-accused has approached this Court by way of instant proceedings, seeking therein his acquittal after setting aside the judgments of conviction recorded by the Courts below.

¶17

Vide order dated 29.10.2024, this Court suspended the substantive sentence imposed by the Court below, subject to his furnishing personal bond and depositing 50% of the compensation amount within a period of four weeks. Though aforesaid order was partially complied with, whereby petitioner-accused besides furnishing personal bonds, only deposited sum of ₹1,50,000/-. Repeatedly matter was adjourned, enabling petitioner to deposit the remaining amount, but in vain. Court file reveals that more than 10 opportunities came to be granted to the petitioner to do the needful, but every time on one pretext or another, petitioner-accused failed to do the needful. Yesterday, case was listed twice on the request of learned counsel representing the petitioner, who repeatedly assured this Court that money is being deposited. However, in the evening, this Court came to be apprised by learned counsel representing the petitioner that on account of some technical glitch, amount is not being transferred, but same shall be deposited tomorrow. Since morning, learned counsel for the petitioner has tried his best to contact his client, but neither he is picking up

¶18

4 -

¶19

his calls, nor has he complied with the order passed by this Court and as such, learned counsel representing the petitioner fairly stated that this Court may proceed to decide the petition on its own merits.

¶20

Having heard learned counsel for the parties and perused material adduced on record, vis-a-vis reasoning assigned in the impugned judgments, this Court sees no reason to agree with learned counsel representing the petitioner, that Courts below have fallen in grave error while appreciating the evidence, 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.

¶21

In his statement recorded under Section 313 Cr.P.C., accused admitted that though Cheque was of his account, but claimed that it does not bear his signature. However, during his cross-examination, no such suggestion ever came to be put to the complainant, rather, suggestion came to be put to the complainant that accused had paid some amount in cash to her husband, but he failed to take defence in cross-examination that Cheque had not been signed by him. Leaving everything aside, Cheque was of the account of the accused, which fact he himself admitted. There is no explanation as to how complainant came into possession of the said Cheque. Since factum with regard to issuance of Cheque as well as signatures thereupon stood duly proved, no illegality can be said to have been committed by the learned Courts below while invoking Sections 118 and 139 of the Act,

¶22

5 -

¶23

which speak about presumption in favour of the holder of the Cheque that Cheque was issued towards discharge of a 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.

¶24

8. 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:-

¶25

“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

¶26

6 -

¶27

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.

¶28

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.

¶29

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

¶30

7 -

¶31

sufficiency of funds and whether the same would be a sufficient ground to proceed in the matter, would be extremely heavy.”

¶32

Complainant, with a view to prove her case, examined herself as CW-1 and tendered evidence by way of affidavit Ex.CW-1/A, reiterating therein contents of the complaint. Besides above, she also tendered documentary evidence i.e. Cheque Ex.C1, return memo Ex.C2, postal receipts Ex.C5 and Ex.C6 and legal notice Ex.C4. Cross-examination conducted upon aforesaid witness nowhere suggests that accused was able to extract anything contrary to what this witness stated in her examinationin-chief. During her cross-examination, she stated that they had given potatoes to accused on 16.11.2021. She also stated that 400 bags of potatoes were given, and the price of one bag was ₹830/-. She specifically denied suggestion put to her that accused had paid ₹1,50,000/- to her husband. She also stated that Cheque was filled in by the accused himself. While stating that accused was not having any legal liability towards her, she categorically denied factum of her husband having received sum of ₹1,50,000/- through her husband. As has been noticed hereinabove, accused attempted to set up a case that the Cheque did not bear his signature and he had already paid partial amount to the complainant, but such defence otherwise attempted to be put up never came to be probabilised by leading cogent and convincing evidence. Though opportunity was afforded to accused to lead evidence, but he failed to avail that opportunity.

¶33

- 8 -

¶34

If the evidence led on record by the respective parties is read in conjunction, this Court sees no reason to differ with the findings returned by the Courts below that complainant successfully proved on record that accused had issued Cheque towards discharge of his lawful liability. Defence otherwise attempted to set up could not be proved by the accused by leading cogent and convincing evidence.

¶35

Having scanned 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. Since Cheque issued by accused towards discharge of his lawful liability was returned unpaid with the remarks ‘Drawers Signature Differs’ and he despite having received legal notice failed to make the payment good within the stipulated time, complainant had no option but to institute proceedings under Section 138 of the Act, which subsequently rightly came to be decided by both the Courts below on the basis of pleadings as well as evidence adduced on record by the respective parties.

¶36

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 relied upon 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

¶37

9 -

¶38

Namboodiri (1999) 2 Supreme Court Cases 452, wherein it has been held

¶39

as under:-

¶40

“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.”

¶41

Since after having carefully examined the evidence in the 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.

¶42

True it is that the Hon’ble Apex Court in Krishnan and another

¶43

Versus Krishnaveni and another, (1997) 4 Supreme Court Case 241 ; has

¶44

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

¶45

- 10 -

¶46

evidence and as such, this Court sees no reason to interfere with the wellreasoned judgments passed by the Courts below.

¶47

Consequently, in view of the discussion made hereinabove 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.

¶48

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, if any, are cancelled. Interim order dated 29.10.2024 stands vacated. Amount, if any, deposited by the petitioner-accused with the learned trial Court as well as Registry of this Court is ordered to be released in favour of complainant by remitting the same in her bank account, detail whereof, shall be furnished by her counsel within a period of one week.

¶49

Pending applications, if any, shall also stand disposed of.

¶50

(Sandeep Sharma), Judge

¶51

July 21, 2026 (Rajeev Raturi)

Dheeraj Kumar v. Asha Devi

Case brief

What is this about?

What did the court decide?

Dheeraj Kumar v. Asha Devi

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

M/s Svs Enterprises and Anr. Vs M/s Bennet Pharmaceuticals Limited

Aahi Chand Vs the State of Hp

Dhyan Singh Vs Kewal Kumar

Parkash Chauhan Vs Bhupinder Singh

Hasmukh K Chudgar Vs State of Hp and Anr.

Joginder Singh Vs State of Hp