Mahinder Singh Vs Anish Thakur and Anr.

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Criminal Revision No.846 of 2024 Date of Decision: 15.06.2026

_________________________________________________________________________ Mahinder Singh ……...Petitioner Versus Anish Thakur & Anr. …....Respondents

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Coram

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Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? For the Petitioner: Mr. A.K. Sharma, Advocate.

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For the Respondents: Mr. K.S. Gill, Advocate, for respondent No.1.

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Mr. Rajan Kahol & Mr. Vishal Panwar, Additional Advocates General with Mr. Ravi Chauhan & Mr. Anish Banshtu, Deputy Advocates General, for respondent No.2-State.

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Sandeep Sharma, J. (Oral)

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Cr.MP No.2182 of 2026

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For the reasons stated in the application, the same is allowed. Application stands disposed of.

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Criminal Revision No.846 of 2024

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Instant criminal revision petition filed under Section 438 read

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with Section 442 of Bharatiya Nagrik Suraksha Sanhita, lays challenge to judgment dated 26.09.2024 passed by the learned Additional Sessions

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Judge, Hamirpur, Himachal Pradesh, in Criminal Appeal No.87 of 2022, affirming the judgment of conviction and order of sentence dated 21.11.2022, passed by the learned Additional Chief Judicial Magistrate, Nadaun, District Hamirpur, H.P. in Criminal complaint No.157-I-18, whereby the learned Court below, while holding 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 eight months and pay compensation to the tune of Rs.7,00,000/- to respondent No.1-complainant (in short the "complainant").

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Precisely, the facts of the case, as emerge from the pleadings as well as other material adduced on record by the respective parties are that complainant instituted a complaint under Section 138 of the Act in the competent Court of law, alleging therein that on 13.07.2018, the accused approached him with a proposal to sell his vehicle bearing registration No. HP-55-A-7064 for a consideration of Rs.4,55,000/-, to which the complainant agreed and an agreement to sell dated 13.07.2018 was executed inter se parties and was duly attested by the Notary Public, SubDivision Hamirpur, Himachal Pradesh. He states that as per agreement,

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accused paid Rs.1,00,000/- in cash to him and remaining amount of Rs.3,55,000/- had been paid by the accused through post-dated cheque bearing No.007200 dated 04.09.2018 to him at the time of agreement. However, aforesaid cheque on its presentation to the bank concerned was received back unpaid with return memo dated 14.09.2018 with remarks “funds insufficient”. Since accused failed to make the payment good within the stipulated period despite his having received legal notice, complainantbank 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 21.11.2022, 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 Additional Sessions Judge, Hamirpur, Himachal Pradesh, but same was dismissed vide judgment dated 26.09.2024. In the aforesaid background, accused has approached this Court in the instant

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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 27.12.2024, this Court stayed the substantive sentence imposed by the learned Court below subject to the 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 eight weeks. Though aforesaid order was complied with, but thereafter matter was repeatedly adjourned, enabling the accused to deposit the remaining amount, but fact remains that remaining amount has not been paid till date. Hence, this Court has no option, but to decide the petition on its own merits.

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7. Having heard learned counsel for the parties and perused material available on record vis-a-vis reasoning assigned in the impugned judgment passed by the learned Additional Sessions Judge, Hamirpur, 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. A.K. Sharma, learned counsel for the accused, that learned Courts below have failed to appreciate the evidence in its right

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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. Interestingly, in the case at hand, factum with regard to issuance of cheque as well as signatures thereupon never came to be disputed by the accused. In his statement recorded under Section 313 of Cr.P.C, accused, while answering to question Nos.2, 3 & 4, fairly admitted factum with regard to his having issued cheque in favour of the complainant to discharge his lawful liability and dishonour of cheque on its presentation in the bank. If it is so, no illegality otherwise can be said to have been committed by courts below, while invoking 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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8. 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 case at hand, despite sufficient opportunities, accused failed to lead cogent and convincing evidence to probablize defence otherwise attempted to be set up by him while getting his statement recorded under Section 313 Cr.P.C.

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9. 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 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 f comes into play. It would be prof 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 138 can 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

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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

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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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10. To the contrary, complainant, with a view to prove his case, examined himself as CW-1, who by way of tendering affidavit Ex.CW-1/A, reiterated the facts as averred in the complaint. Besides above, he also proved on record the documents i.e. cheque Ext.CW-1/B, return memos Ext.CW-1/C and Ext.CW-1/D, legal notice Ext.CW-1/E, postal receipt Ext.CW-1/F, registered letter with acknowledgment Ext.CW-1/G & Ext.CW-1/H, presentation form Ext.CW-1/I and agreement Ext.CW-1/J. If the cross-examination conducted upon this witness is perused in its entirety, it can be safely concluded that accused was unable to extract anything contrary to what this witness stated in his examination-in-chief. During cross-examination, complainant, while admitting agreement Ext. CW-1/J is photocopy, stated that accused gave Rs.1,00,000/- in cash along with cheque to him. He categorically stated that he gave NOC of vehicle to the accused. He denied that his vehicle was not in working condition and accused had asked him to take back his vehicle. He denied that accused

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issued another cheque, which was encashed on presentation in the bank. While denying that accused had made entire payment in cash to him, he further denied that he had himself used the cheque. Pattern of crossexamination conducted upon the complainant clearly proves factum with regard to issuance of cheque as well as signatures thereupon, as such, this Court sees no illegality or infirmity in the impugned judgment of conviction and order of sentence recorded by the Court below, while holding the accused guilty of his having committed offence punishable under Section 138 of the Act.

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11. Though accused attempted to set up a defence that he had paid the entire amount in cash, but yet complainant misused the cheque issued by him at the time of his entering into agreement with the complainant, but such defence of him was never probablized by leading cogent and convincing evidence.

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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

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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

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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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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.

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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 one month 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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Amount, if any, lying deposited by the accused with the Registry of this court as well as learned trial Court is ordered to be released in favour of the complainant by remitting the same in its saving bank account, detail whereof, shall be furnished within a period of one week.

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June 15, 2026 (Sandeep Sharma), (sunil) Judge

Mahinder Singh v. Anish Thakur and Anr.

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Mahinder Singh v. Anish Thakur and Anr.

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