Yog Raj vs Bodh Raj @ Bitu
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Himachal Pradesh High Court

Yog Raj vs Bodh Raj @ Bitu on 1 May, 2025

( 2025:HHC:11932 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No. 488 of 2015 Reserved on: 22.4.2025 Date of Decision: 01.5.2025.

    Yog Raj                                                                       ...Appellant

                                          Versus

    Bodh Raj @ Bitu                                                              ...Respondent


    Coram

Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No.

For the Petitioner : Mr. Debender Ghosh, Advocate. For the Respondent : Mr. K.D. Sood, Senior Advocate, with Mr. Vivek Sharma, Advocate.

Rakesh Kainthla, Judge

The present appeal is directed against the judgment

dated 13.7.2015, passed by learned Judicial Magistrate First

Class, Manali, District Kullu, H.P. (learned Trial Court), vide

which the respondent (accused before learned Trial Court) was

acquitted of the commission of an offence punishable under

Section 138 of Negotiable Instruments Act, 1881 (NI Act). (Parties

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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shall hereinafter be referred to in the same manner as they were

arrayed before the learned Trial Court for convenience.)

2. Briefly stated, the facts giving rise to the present

appeal are that the complainant filed a complaint before the

learned Trial Court against the accused for the commission of an

offence punishable under Section 138 of the NI Act. It was

asserted that the complainant and the accused were known to

each other. The accused required money in August 2010. He

approached the complainant for the financial assistance of

₹10.00 lacs. The complainant advanced ₹10.00 lacs, and the

accused promised to repay the amount within three months. The

complainant demanded the money, and the accused issued a

cheque of ₹10.00 lacs for discharging his legal liability. The

complainant presented the cheque before Punjab National Bank,

Mandi, which forwarded it to the bank of the accused, however,

the bank of the accused returned the cheque with the

endorsement 'Payment Stopped by the Drawer'. Memo

(Ex.CW1/D) was issued. The cheque and the memo were returned

by Punjab National Bank to the complainant vide memo

(Ex.CW1/C). The complainant issued notice (Ex.CW1/E) asking

the accused to pay the amount of ₹10.00 lacs within 15 days from

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the date of receipt of the notice. This notice was sent by

registered post, and the receipt (Ex.CW1/F) was obtained from

the Postal Department. Notice was delivered to the accused, and

an acknowledgement (Ex.CW1/G) was signed by the accused. The

accused failed to pay the amount within the stipulated period.

Hence, the complainant filed a complaint before the Court to

take action against the accused as per the law.

3. The learned Trial Court found sufficient reasons to

summon the accused for the commission of an offence

punishable under Section 138 of the NI Act. When the accused

appeared, notice of accusation was put to him, to which he

pleaded not guilty and claimed to be tried.

4. The complainant examined himself (CW1) in support

of his complaint. The accused, in his statement recorded under

Section 313 of Cr.P.C., stated that he had borrowed a sum of

₹1,50,000/-, which was returned by him. He admitted that the

cheque was signed by him. He stated that he was innocent and

that nothing was payable to the complainant. He examined Nand

Lal (DW1) in defence.

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5. Learned Trial Court held that the complainant

mentioned different dates in his statement on oath, which was

omitted by him from his complaint. The complainant failed to

show that he had the financial capacity to lend ₹10.00 lacs to the

accused. No document was produced in support of the

transaction. The amount of ₹10.00 lacs advanced by the

complainant was more than the limit of ₹20,000/- prescribed in

Section 269(b) of the Income Tax Act. All these aspects made the

complainant's case doubtful. Hence, the accused was acquitted

of the commission of an offence punishable under Section 138 of

the NI Act.

6. Being aggrieved from the judgment passed by the

learned Trial Court, the complainant filed the present appeal,

asserting that the learned Trial Court erred in acquitting the

accused. It was wrongly held that the cheque was issued as

security. The cheque was issued by the accused to discharge

legal liability to repay the money taken by him from the

complainant. The accused admitted the signatures on the

cheque, and presumptions under Sections 118 and 139 of the NI

Act would apply to the present case. The amount stated to have

been paid in the statement of account (Ex.DW1/A) was never

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paid to the complainant. The accused had initially issued the

instructions to the bank to stop payments. The accused had filed

a reply to the demand notice served upon him. Therefore, it was

prayed that the present appeal be allowed and the judgment

passed by the learned Trial Court be set aside and the accused be

convicted of the commission of an offence punishable under

Section 138 of the NI Act.

7. I have heard Mr. Debender Ghosh, learned counsel

for the appellant/complainant and Mr. K.D. Sood, learned Senior

Counsel, assisted by Mr. Vivek Thakur, learned counsel for the

respondent/accused.

8. Mr. Debender Ghosh, learned counsel for the

appellant/complainant, submitted that the learned Trial Court

erred in acquitting the accused. It was duly proved on record

that the accused had issued the cheque. There is a presumption

that the cheque was issued in discharge of legal liability, and the

burden was upon the accused to rebut this presumption by

leading satisfactory evidence. The learned Trial Court had erred

in holding that since the payment was not made by means of a

cheque, therefore, such a payment could not be recognised by

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the Court. The complainant was not supposed to lead any

evidence regarding his financial capacity in view of the

presumption, and the accused had to rebut the presumption

regarding the construction. Learned Trial Court erred in shifting

the burden of proof upon the complainant, and this vitiated the

findings recorded by the learned Trial Court. Therefore, he

prayed that the present appeal be allowed and the judgment

passed by the learned Trial Court be set aside. He relied upon the

judgment of this Court in Amar Chand Bhutail and Sons v. Yash

Pal Ranta, Cr. Appeal No. 137 of 2011, decided on 29.12.2023 in

support of his submission.

9. Mr. K.D. Sood, learned Senior Counsel for the

respondent/accused, submitted that the complainant admitted

in his cross-examination that he had not advanced any other

loan to the accused. The accused had returned ₹1,50,000/-,

which fact was proved by the statement of Nand Lal (DW1). The

cheque could not have been presented for a sum of ₹10.00 lacs,

and the learned Trial Court had rightly held that the accused had

no subsisting liability to pay the amount of ₹10.00 lacs. This was

a reasonable view taken by the learned Trial Court, and this

Court could not interfere with it while deciding the appeal

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against acquittal. He relied upon the judgment of Bhupatbhai

Bachubhai Chavda v. State of Gujarat, 2024 SCC OnLine SC 523 in

support of his submission.

10. I have given considerable thought to the submissions

made at the bar and have gone through the records carefully.

11. The present appeal has been filed against a judgment

of acquittal. It was laid down by the Hon'ble Supreme Court in

Surendra Singh v. State of Uttarakhand, 2025 SCC OnLine SC 176:

(2025) 5 SCC 433 that the Court can interfere with a judgment of

acquittal if it is patently perverse, is based on

misreading/omission to consider the material evidence and no

reasonable person could have recorded the acquittal based on

the evidence led before the learned Trial Court. It was observed:

"11. Recently, in the case of Babu Sahebagouda Rudragoudar v. State of Karnataka 2024 SCC OnLine SC 4035, a Bench of this Court to which one of us was a Member (B.R. Gavai, J.) had an occasion to consider the legal position with regard to the scope of interference in an appeal against acquittal. It was observed thus:

"38. First of all, we would like to reiterate the principles laid down by this Court governing the scope of interference by the High Court in an appeal filed by the State for challenging the acquittal of the accused recorded by the trial court.

39. This Court in Rajesh Prasad v. State of Bihar [Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471: (2022) 2 SCC

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(Cri) 31] encapsulated the legal position covering the field after considering various earlier judgments and held as below : (SCC pp. 482-83, para 29) "29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: (Chandrappa case [Chandrappa v. State of Karnataka, (2007) 4 SCC 415: (2007) 2 SCC (Cri) 325], SCC p. 432, para 42) '42. From the above decisions, in our considered view, the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on the exercise of such power and an appellate court, on the evidence before it, may reach its own conclusion, both on questions of fact and law.

(3) Various expressions, such as "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc., are not intended to curtail the extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with an acquittal than to curtail the power of

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the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

40. Further, in H.D. Sundara v. State of Karnataka [H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581: (2023) 3 SCC (Cri) 748] this Court summarised the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378CrPC as follows: (SCC p. 584, para 8) "8. ... 8.1. The acquittal of the accused further strengthens the presumption of innocence. 8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence;

8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;

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8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible."

41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate court for reversing the judgment of acquittal recorded by the trial court in favour of the accused has to be exercised within the four corners of the following principles:

41.1. That the judgment of acquittal suffers from patent perversity;

41.2. That the same is based on a misreading/omission to consider material evidence on record; and 41.3. That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record."

12. It could thus be seen that it is a settled legal position that the interference with the finding of acquittal recorded by the learned trial judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record."

12. A similar view was taken in Bhupatbhai Bachubhai

Chavda (supra), wherein it was observed:-

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"6. It is true that while deciding an appeal against acquittal, the Appellate Court has to reappreciate the evidence. After re-appreciating the evidence, the first question that needs to be answered by the Appellate Court is whether the view taken by the Trial Court was a plausible view that could have been taken based on the evidence on record. Perusal of the impugned judgment of the High Court shows that this question has not been adverted to. The Appellate Court can interfere with the order of acquittal only if it is satisfied after reappreciating the evidence that the only possible conclusion was that the guilt of the accused had been established beyond a reasonable doubt. The Appellate Court cannot overturn the order of acquittal only on the ground that another view is possible. In other words, the judgment of acquittal must be found to be perverse. Unless the Appellate Court records such a finding, no interference can be made with the order of acquittal. The High Court has ignored the well-settled principle that an order of acquittal further strengthens the presumption of innocence of the accused.

After having perused the judgment, we find that the High Court has not addressed itself on the main question."

13. The present appeal has to be decided as per the

parameters laid down by the Hon'ble Supreme Court.

14. The complainant stated in his cross-examination

that he had paid ₹3.00 lacs on 20.8.2011. He had paid ₹3.00 lacs

on 5th September and ₹4.00 lacs on 21st September, 2011. He had

not paid any money to the accused before August 2010. He had

also not advanced any other money to the accused except ₹10.00

lacs.

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15. The cross-examination of the complainant shows

that he had only advanced ₹10.00 lacs to the accused on

different dates and not any other amount. Nand Lal (DW1)

proved that as per the statement of account (Ex.DW1/A), the

accused had issued Cheque No. 28792 to the complainant for

₹50,000/- and Cheque No. 28793 to the complainant for ₹1.00

lac. This statement is duly corroborated by the statement of

account wherein the entries of payment made to Yog Raj by

means of cheque Nos. 28792 and 28793 have been recorded.

Thus, it is duly proved that the accused had paid ₹1.5 lacs to the

complainant.

16. It was submitted that this payment was made in July

2011 and is regarding some other transaction between the

parties, however, this submission is not acceptable in view of

the categorical statement made by the complainant that he had

not advanced any other amount except ₹10.00 lacs. The

complainant denied in his cross-examination that ₹1.50 lacs

were returned by the accused to him. Therefore, he did not

provide any explanation for the amount of ₹1.50 lacs received by

him, and the plea that the payment might have been regarding

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some other transaction cannot be accepted without any

explanation from the complainant.

17. Therefore, even if the version of the complainant is

accepted as correct that he had advanced ₹10.00 lacs to the

accused, the accused has returned ₹1.50 lacs to the complainant.

Hence, the cheque could not have been presented for a sum of

₹10.00 lacs. It was laid down by Hon'ble Supreme Court in

Dashrathbhai Trikambhai Patel v. Hitesh Mahendrabhai Patel,

(2023) 1 SCC 578: 2022 SCC OnLine SC 1376 that when the amount

is paid, the cheque cannot be presented for the whole amount

and the payment received by the complainant has to be endorsed

on the cheque. It was observed: -

"16. Based on the above analysis of precedent, the following principles emerge:

16.1. Where the borrower agrees to repay the loan within a specified timeline and issues a cheque for security but defaults in repaying the loan within the timeline, the cheque matures for presentation.

When the cheque is sought to be encashed by the debtor and is dishonoured, Section 138 of the Act will be attracted.

16.2. However, the cardinal rule when a cheque is issued for security is that between the date on which the cheque is drawn to the date on which the cheque matures, the loan could be repaid through any other mode. It is only where the loan is not repaid through any other mode within the due date

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that the cheque would mature for presentation. 16.3. If the loan has been discharged before the due date or if there is an "altered situation", then the cheque shall not be presented for encashment.

17. In Sunil Todi v. State of Gujarat [Sunil Todi v. State of Gujarat, (2022) 16 SCC 762: 2021 SCC OnLine SC 1174], a two-Judge Bench of this Court expounded the meaning of the phrase "debt or other liability". It was observed that the phrase takes within its meaning a "sum of money promised to be paid on a future day by reason of a present obligation". The Court observed that a post-dated cheque issued after the debt was incurred would be covered within the meaning of "debt". The Court held that Section 138 would also include cases where the debt is incurred after the cheque is drawn but before it is presented for encashment. In this context, it was observed: (SCC para 30) "30. The object of the NI Act is to enhance the acceptability of cheques and inculcate faith in the efficiency of negotiable instruments for the transaction of business. The purpose of the provision would become otiose if the provision is interpreted to exclude cases where debt is incurred after the drawing of the cheque but before its encashment. In Indus Airways [Indus Airways (P) Ltd. v. Magnum Aviation (P) Ltd., (2014) 12 SCC 539: (2014) 5 SCC (Civ) 138: (2014) 6 SCC (Cri) 845], advance payments were made but since the purchase agreement was cancelled, there was no occasion of incurring any debt. The true purpose of Section 138 would not be fulfilled if "debt or other liability" is interpreted to include only a debt that exists as on the date of drawing of the cheque. Moreover, Parliament has used the expression "debt or other liability". The expression "or other liability" must have a meaning of its own, the legislature having used two distinct phrases. The expression "or other liability"

has a content which is broader than "a debt" and cannot be equated with the latter. In the present case, the cheque was issued in close proximity to the commencement of the power supply. The issuance of the cheque in the context of a commercial transaction must be understood

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in the context of business dealings. The issuance of the cheque was followed close on its heels by the supply of power. To hold that the cheque was not issued in the context of a liability which was being assumed by the company to pay for the dues towards power supplied would be to produce an outcome at odds with the business dealings. If the company were to fail to provide a satisfactory LC and yet consume power, the cheques were capable of being presented for the purpose of meeting the outstanding dues."

18. It was further held that when the payments were

made after taking of debt, the presentation of the cheque for the

whole amount of the debt is bad. It was observed: -

20. The judgments of this Court on post-dated cheques, when read with the purpose of Section 138, indicate that an offence under the provision arises if the cheque represents a legally enforceable debt on the date of maturity. The offence under Section 138 is tipped by the dishonour of the cheque when it is sought to be encashed.

Though a post-dated cheque might be drawn to represent a legally enforceable debt at the time of its drawing, for the offence to be attracted, the cheque must represent a legally enforceable debt at the time of encashment. If there has been a material change in the circumstances such that the sum in the cheque does not represent a legally enforceable debt at the time of maturity or encashment, then the offence under Section 138 is not made out.

24. It was the contention of the first respondent that the cheque was not dated. On the other hand, it was the contention of the appellant that the cheque was dated 17- 3-2014. The courts below did not record a finding on whether the cheque was undated or was dated 17-3-2014. However, it was conclusively held that the cheque was issued by the first respondent for security on the date

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when the loan was borrowed. It was also categorically recorded by the courts below that a sum of Rs 4,09,315 that was paid by the first respondent was paid to partly fulfil the debt of rupees twenty lakhs. The appellant, in his cross-examination, has stated that a "cheque against a cheque" was given when he loaned the sum of rupees twenty lakhs. Thus, it can be concluded that the cheque was given as a security to discharge the loan, either undated or dated as 17-3-2014. Merely because the sum of Rs 4,09,315 was paid between 8-4-2012 and 30-12- 2013, which was after 17-3-2014, it cannot be concluded that the sum was not paid in discharge of the loan of rupees twenty lakhs. The sum of Rs 4,09,315 was paid after the loan was lent to the first respondent. The appellant, in his cross-examination, has not denied the receipt of the payments. He has also stated it was not received as a "gift or reward". In view of the above discussion, at the time of the encashment of the cheque, the first respondent did not owe a sum of rupees twenty lakhs as represented in the cheque at the time of encashment of the cheque that was issued for security.

34. In view of the discussion above, we summarise our findings below:

34.1. For the commission of an offence under Section 138, the cheque that is dishonoured must represent a legally enforceable debt on the date of maturity or presentation.

34.2. If the drawer of the cheque pays a part or whole of the sum between the period when the cheque is drawn and when it is encashed upon maturity, then the legally enforceable debt on the date of maturity would not be the sum represented on the cheque.

34.3. When a part or whole of the sum represented on the cheque is paid by the drawer of the cheque, it must be endorsed on the cheque as prescribed in Section 56 of the Act. The cheque endorsed with the

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payment made may be used to negotiate the balance, if any. If the cheque that is endorsed is dishonoured when it is sought to be encashed upon maturity, then the offence under Section 138 will stand attracted.

34.4. The first respondent has made part-payments after the debt was incurred and before the cheque was encashed upon maturity. The sum of rupees twenty lakhs represented on the cheque was not the "legally enforceable debt" on the date of maturity.

Thus, the first respondent cannot be deemed to have committed an offence under Section 138 of the Act when the cheque was dishonoured for insufficient funds.

34.5. The notice demanding the payment of the "said amount of money" has been interpreted by judgments of this Court to mean the cheque amount. The conditions stipulated in the provisos to Section 138 need to be fulfilled in addition to the ingredients in the substantive part of Section 138. Since in this case, the first respondent has not committed an offence under Section 138, the validity of the form of the notice need not be decided."

19. Hence, the version of the complainant that accused

had a legal liability to pay an amount of ₹10.00 lacs on the date

of presentation of the cheque is not acceptable.

20. Even otherwise, the learned Trial Court had rightly

held that the version of the complainant was suspect and he had

failed to establish his version in the Court. The complainant had

specifically stated in para-2 of the complaint that the accused

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was in dire need of money in August 2010, and he approached

the complainant to seek financial assistance. The complainant

advanced money to him, and the accused agreed to repay the

amount within three months. These averments show that

money was advanced in the month of August, 2010. The

complainant, on the other hand, stated in his cross-

examination that the amount was advanced in August 2010 and

September 2010, therefore, he had changed his whole version on

oath, and the learned Trial Court was justified in doubting the

complainant's version. It was laid down by the Hon'ble Supreme

Court in Dattatraya v. Sharanappa, (2024) 8 SCC 573, that when

there were contradictions in the statement of the

complainant, mere proof of the signatures on the cheque is

not sufficient. It was observed: -

30. Admittedly, the appellant was able to establish that the signature on the cheque in question was of the respondent and in regard to the decision of this Court in Bir Singh [Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197:

(2019) 2 SCC (Civ) 309: (2019) 2 SCC (Cri) 40], a presumption is to ideally arise. However, in the above-

referred context of the factual matrix, the inability of the appellant to put forth the details of the loan advanced, and his contradictory statements, the ratio therein would not impact the present case to the effect of giving rise to the statutory presumption under Section 139 of the NI Act, 1881. The respondent has been able to shift the weight of

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the scales of justice in his favour through the preponderance of probabilities.

21. The complainant stated in the complaint that the

accused promised to repay the amount within three months

from the date of the advancement of money. He stated in para-3

that the complainant demanded the amount from the accused,

and the accused issued a cheque to discharge his liability. This

cheque was dated 21.9.2011. The complainant nowhere

mentioned in the complaint on which date the cheque was

issued. He only stated that the cheque was dated 21.9.2011,

however, he stated in his cross-examination that the cheque

was presented on 21.9.2011. The failure to mention the date of

issuance of the cheque and the mention of the same in the

cross-examination will make the complainant's version

suspect. Dealing with a similar situation, it was held in

Dattatraya (supra) as under: -

"29. Applying the aforementioned legal position to the present factual matrix, it is apparent that there existed a contradiction in the complaint made by the appellant as against his cross-examination relatable to the time of presentation of the cheque by the respondent, as per the statements of the appellant. This is to the effect that while the appellant claimed the cheque to have been issued at the time of advancing of the loan as a security, however, as per his statement during the cross-examination it was revealed that the same was presented when an alleged

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demand for repayment of alleged loan amount was raised before the respondent, after six months of advancement..."

22. Therefore, the learned Trial Court had taken a

reasonable view, which was possible based on the evidence led

before the learned Trial Court and no interference is required

with such a view while deciding an appeal against acquittal.

23. In Amar Chand Butail (supra), the Court had not

noticed any contradictions and relied upon the presumption

contained in Sections 118 and 139 of the NI Act, which is not

possible in the present case.

24. No other point was urged.

25. In view of the above, the present appeal fails, and

the same is dismissed.

26. A copy of the judgment and the record of the learned

Trial Court be sent back forthwith.

(Rakesh Kainthla) Judge 01st May, 2025 (Chander)

DN: C=IN, O=HIGH COURT OF HIMACHAL

KARAN PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone=e5d61f6599be410af7c5f0b57379e22 5878f23c9ea27b281046985b3b1fe0b75,

SINGH PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER=f72cf9165791d55ec93937 5291962d0d90d094876bd59591426c0b1ce6 51f01f, CN=KARAN SINGH GULERIA

GULERIA Reason: I am the author of this document Location:

Date: 2025-05-01 17:34:06