[Cites 8, Cited by 0]
Himachal Pradesh High Court
Rajinder Mishra vs J.C.C.Bank Arki And Anr on 27 February, 2026
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.R No.488 of 2025
Date of Decision: 27.2.2026
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_____________________________________________________________________
Rajinder Mishra
.........Petitioner
Versus
J.C.C.Bank Arki and Anr.
.......Respondents
Coram
of
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?
For the Petitioner:
rt Mr. Manohar Lal Sharma, Advocate.
For the Respondents: Mr. Arvind Sharma, Advocate, for respondent No.1.
Mr. Rajan Kahol & Mr. Vishal Panwar, Additional
Advocates General and Mr. Ravi Chauhan & Mr.
Anish Banshtu, Deputy Advocates General, for the
State.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
Instant criminal revision petition, lays challenge to judgment
dated 24.5.2025, passed by the learned Additional Sessions Judge (II),
Solan, District Solan, Himachal Pradesh (Camp at Arki), in Criminal Appeal
No. 16-AK/10 of 2024, affirming the judgment of conviction and order of
sentence dated 3.4.2024, in Criminal Complaint No. 117/3 of 2016, passed
by the learned Judicial Magistrate 1st Class, Arki, District Solan, Himachal
Pradesh, whereby the learned trial Court while holding the petitioner-
accused guilty of having committed offence punishable under Section 138
of the Negotiable Instruments Act (in short the "Act"), convicted and
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sentenced him to undergo simple imprisonment for a period of six months
and pay compensation to the tune of Rs. 6,00,000/- to the complainant.
2. Precisely, the facts of the case, as emerge from the record are
that respondent/complainant lodged complaint under Section 138 of the
of
Act before the competent court of law, stating therein that accused had
applied for Dudh-Ganga Scheme (Diary Farm) loan to the tune of Rs.
3,15,000/- from the complainant-Bank, which was duly sanctioned by the
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bank on 31.1.2011. Loan was disbursed to the accused on 30.3.2011 after
execution of term loan agreement and hypothecation deed, between mother
of the accused and the bank as per agreement, but accused failed pay back
the loan amount and made default in paying the regular monthly
installments.
3. Accused with a view to discharge his liability issued cheque
bearing No. 868699 dated 21.4.2016 amounting to Rs. 5,60,000/- in favour
of the complainant-bank, however fact remains that aforesaid cheque on its
presentation to the bank concerned, was dishonoured on account of
"insufficiency of funds". Since accused failed to make the payment good
within the stipulated period despite having received legal notice issued to
him, complainant had no option but to initiate proceedings under Section
138 of the Act in the competent court of law.
.
4. Learned trial Court on the basis of material adduced on record
by the respective parties, vide judgment/order dated 3.4.2024, held the
petitioner-accused guilty of having committed offence punishable under
Section 138 of the Act and accordingly, convicted and sentenced him as per
of
the description given herein above.
5. Being aggrieved and dissatisfied with the aforesaid judgment of
conviction recorded by the court below, petitioner-accused preferred an
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appeal before the learned first appellate Court, but the same was dismissed
vide judgment dated 24.5.2025. In the aforesaid background, accused has
approached this Court in the instant proceedings, praying therein to set-
aside the judgment of conviction and order of sentence recorded by the
court below.
6. Vide order dated 29.8.2025, this Court suspended the
substantive sentence imposed by the court below subject to deposit of 30%
of the cheque amount with the trial court, but fact remains that despite
repeated opportunities, aforesaid order never came to be complied with.
7. Today, during the proceedings of the case, learned counsel for
the petitioner fairly stated that since petitioner is not coming forward to
deposit the amount, this Court may proceed to decide the petition on its
own merits.
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8. Having heard learned counsel for the parties and perused
material available on record vis-à-vis reasoning assigned in the judgment
impugned in the instant proceedings, this Court is not persuaded to agree
with learned counsel appearing for the petitioner that courts below have
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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 very meticulously and there is no scope of interference.
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9. Perusal of evidence clearly reveals that complainant
successfully proved on record that cheque in question was issued towards
discharge of lawful liability, but same was dishonored vide return memo
Ext.CW1/E on account of insufficient finds. Since despite having received
legal notice, accused failed to make the payment good, complainant had no
option but to institute proceedings under Section 138 of the Act. If evidence
led on record at the behest of the complainant is read in its entirety, it
suggests that he successfully proved all the ingredients of 138 of the Act.
Besides providing lawful liability of accused, complainant also proved that
cheque in question was issued towards discharge of lawful laibility, but
same was dishonoured on account of insufficient funds and thereafter,
despite having received legal notice, accused failed to make the payment
good. Interestingly, at no point of time, factum with regard to issuance of
cheque towards discharge of lawful liability as well as signature thereupon
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ever came to be disputed by the petitioner-accused. If it is so, court below
rightly invoked Sections 118 and 139 of the Act, which clearly provide that
there shall be a presumption available in favour of the holder of the cheque
that same was issued in discharge of some lawful liability. No doubt,
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aforesaid presumption is rebuttable, but for that purpose, accused is/was
under obligation to raise probable defence. Probable defence could be
raised by the accused by referring to the documents adduced on record by
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the complainant or by leading some cogent and convincing evidence.
However, in the case at hand, accused, despite ample opportunities, failed
to raise probable defence.
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.
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 offence
comes into play. It would be profitable 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
of
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
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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
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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 ground to proceed
in the matter, would be extremely heavy."
of
11. Though in his statement recorded under Section 313 CrPC,
petitioner-accused denied the case of the complainant in toto, but despite
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repeated opportunities, he failed to lead the evidence. To the contrary, Sh.
B.R. Kaushal, Branch Manager, JCC Bank, appeared as CW-1 and
tendered his evidence by way of affidavit Ext.CW-1/A, thereby successfully
proving contents of the complaint. Alongwith his affidavit, afore witness
tendered in evidence Postal Receipt (Ext CW-1/B), Legal Notice (Ext. CW-
1/C), Acknowledgement (Ext. CW-1/D), Returning Memo (Ext. CW-1/E),
Original Cheque (Ext. CW-1/F), copy of creation of charge (Ext. C-1/CW-1),
copy of Jamabandi for the 2002-03 (Ext. C-2/CW-1), copy of Power of
Attorney (Ext. C3/CW-1), copy of Affidavit of accused (Ext. C4/CW-1), copy
of Loan Application (Ext. C-5/CW-1), Loan Agreement (Ext. C6/CW-1), copy
of Hypothecation Deed (Ext. C7/CW-1) and copy of Authority Letter (Ext.
C8/CW-1). Cross-examination conducted upon this witness, if perused in
entirety, clearly reveals that accused was unable to extract something
contrary to what this witness stated in his Examination-in-Chief.
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12. Having scanned the 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. Similarly, factum with regard to
signatures and issuance of cheque by the accused towards discharge of
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lawful liability stands duly established on record.
13. Moreover, this Court has a very limited jurisdiction under
Section 397 of the Cr.PC, to re-appreciate the evidence, especially, in view
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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:-
"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."
14. 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
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any, committed by the courts below while passing impugned judgments,
there is no occasion, whatsoever, to exercise the revisional power.
15. True it is that the Hon'ble Apex Court in Krishnan and
another Versus Krishnaveni and another, (1997) 4 Supreme Court
of
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
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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.
16. 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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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 forthwith to serve the sentence as awarded by
the learned trial Court, if not already served. Interim direction, if any,
of
stands vacated. Learned court below is also directed to release the amount,
if any, deposited before it by the accused, on filing appropriate application
by the complainant. Pending applications, if any, also stand disposed of.
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18. Needless to say, complainant shall always be at liberty to
initiate appropriate proceedings for recovery of amount of compensation.
February 27, 2026 (Sandeep Sharma),
(manjit) Judge
