[Cites 30, Cited by 0]

Himachal Pradesh High Court

Reserved On: 08.01.2026 vs Nettar Singh on 23 February, 2026

                                                                                    2026:HHC:3556

     IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                              Cr. Revision No. 746 of 2024
                                              Reserved on: 08.01.2026




                                                                                   .
                                              Date of Decision: 23.02.2026






    Arvind Bhardwaj                                                              ...Petitioner
                                          Versus
    Nettar Singh                                                                 ...Respondent




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

    For the Petitioner                :         Mr Virender Verma, Advocate.
    For the Respondent                :         Mr Surinder K. Saklani, Advocate.



    Rakesh Kainthla, Judge

The present revision is directed against the judgment

dated 18.07.2024 passed by learned Additional Sessions Judge,

Paonta Sahib, District Sirmaur, H.P. (learned Appellate Court),

vide which the judgment of conviction and order of sentence

dated 09.01.2024 passed by learned Additional Chief Judicial

Magistrate, Paonta Sahib, District Sirmaur, H.P. (learned Trial

Court) were upheld. (Parties shall hereinafter be referred to in the

same manner as they were arrayed before the learned Trial Court for

convenience.)

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

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

revision are that the complainant filed a complaint against the

accused before the learned Trial Court for the commission of an

offence punishable under Section 138 of the Negotiable

Instruments Act (in short 'NI' Act). It was asserted that the

accused agreed to sell a machine to the complainant for a

of consideration of ₹15,00,000/-. The complainant paid

₹9,36,000/- as an advance to the accused. The accused failed to rt deliver possession of the machine to the complainant, and he

agreed to return ₹9,36,000/- so taken by him from the

complainant. He issued a cheque of ₹3,00,000/- to the

complainant towards the partial discharge of his liability. He

agreed to pay the remaining amount after some time. The

complainant presented the cheque to his bank, but it was

dishonoured with an endorsement 'funds insufficient'. The

complainant told this fact to the accused, and the accused

requested the complainant to present the cheque again. The

complainant presented the cheque again, but the bank

dishonoured the cheque with the remarks 'stop payment'. The

complainant sent a legal notice to the accused asking him to

repay the amount. The notice was served upon the accused, but

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he failed to repay the amount. Hence, the complaint was filed

before the learned Trial Court for taking action against the

accused as per the law.

3. Learned Trial Court found sufficient reasons to

summon the accused. When the accused appeared, a notice of

accusation was put to him for the commission of an offence

of punishable under Section 138 of the NI Act, to which he pleaded

not guilty and claimed to be tried.

4. rt The complainant examined himself (CW1) to prove his

complaint.

5. The accused, in his statement recorded under Section

313 of Cr.P.C., denied the complainant's case in its entirety. He

claimed that Raju Chauhan had approached him to purchase the

machine, and he had issued a cheque to the complainant and

Raju Chauhan. He admitted that the cheque was dishonoured

with an endorsement 'funds insufficient'. He also admitted that

he had requested the complainant to present the cheque again,

and it was dishonoured with the remarks 'payment stopped'. He

admitted that the notice was served upon him. He stated that he

had paid the entire cheque amount to the complainant by bank

draft. He stated that he wanted to lead defence evidence but

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failed to produce any evidence, and learned Trial Court closed the

right to lead defence evidence on 15.09.2022.

6. Learned Trial Court held that the issuance of the

cheque was not disputed by the accused, and a presumption

arose under Section 118(a) and 139 of the NI Act that the cheque

was issued for consideration to discharge the debt/liability. The

of accused failed to rebut the presumption attached to the cheque.

The cheque was dishonoured with the endorsement 'payment rt stopped'. The notice was served upon the accused, and the

accused failed to repay the amount despite the receipt of the

notice of demand. Therefore, all the ingredients of the

commission of an offence punishable under Section 138 of the NI

Act were duly satisfied. Hence, the learned Trial Court convicted

the accused of the commission of an offence punishable under

Section 138 of the NI Act and sentenced him to undergo simple

imprisonment for one year, pay a fine of ₹5,00,000/-, and to

undergo simple imprisonment for one month in case of default

in the payment of the fine. The fine amount was ordered to be

disbursed as compensation to the complainant.

7. Being aggrieved by the judgment and sentence passed

by the learned Trial Court, the accused filed an appeal which was

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decided by the learned Additional Sessions Judge, Paonta Sahib,

District Sirmaur (learned Appellate Court). Learned Appellate

Court concurred with the findings recorded by the learned Trial

Court that the issuance of the cheque was not disputed, and the

presumption arose that the cheque was issued for consideration

to discharge the debt/liability. The accused failed to rebut the

of presumption attached to the cheque. The cheque was

dishonoured with an endorsement 'stop payment'. The notice rt was duly served upon the accused. A payment of ₹3,00,000/- was

made during the pendency of the proceedings. However, this

would not make any difference because the total liability was of

₹6,36,000/-. There was no infirmity in the judgment and order

passed by the learned Trial Court. Hence, the appeal was

dismissed.

8. Being aggrieved by the judgments and order passed

by the learned Courts below, the accused has filed the present

revision asserting that the learned Trial Court failed to

appreciate that the entire cheque amount was paid to the

complainant. The accused did not have any legally enforceable

debt, and the learned Courts below erred in holding otherwise.

Therefore, it was prayed that the present revision be allowed and

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the judgments and order passed by the learned Courts below be

set aside.

8. I have heard Mr Virender Verma, learned counsel for

the petitioner/accused, and Mr Surinder K. Saklani, learned

counsel for the respondent/complainant.

9. Mr Virender Verma, learned counsel for the

of petitioner/accused, submitted that the learned Courts below

failed to appreciate that the payment was made to the rt complainant during the pendency of the proceedings and the

accused had no subsisting liability towards the complainant. The

learned Courts below erred in convicting and sentencing the

accused. Hence, he prayed that the present revision be allowed

and the judgments and order passed by the learned Courts below

be set aside.

10. Mr Surinder K. Saklani, learned counsel for the

respondent/complainant, submitted that the learned Courts

below have concurrently held the accused guilty of the

commission of an offence punishable under Section 138 of the NI

Act. This Court should not interfere with the concurrent findings

of fact recorded by the learned Trial Court. Therefore, he prayed

that the present revision be dismissed.

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11. I have given considerable thought to the submissions

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

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

Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204:

(2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that a revisional

court is not an appellate court and it can only rectify the patent

of defect, errors of jurisdiction or the law. It was observed at page

207-

rt "10. Before adverting to the merits of the contentions, at the outset, it is apt to mention that there are concurrent

findings of conviction arrived at by two courts after a detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against

conviction is not supposed to exercise the jurisdiction like the appellate court, and the scope of interference in revision is extremely narrow. Section 397 of the Criminal Procedure Code (in short "CrPC") vests jurisdiction to

satisfy itself or himself as to the correctness, legality or

propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court. The object of the provision is to set right a

patent defect or an error of jurisdiction or law. There has to be a well-founded error which is to be determined on the merits of individual cases. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings.

13. This position was reiterated in State of Gujarat v.

Dilipsinh Kishorsinh Rao, (2023) 17 SCC 688: 2023 SCC OnLine SC

1294, wherein it was observed at page 695:

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"14. The power and jurisdiction of the Higher Court under Section 397 CrPC, which vests the court with the power to call for and examine records of an inferior court, is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The

object of this provision is to set right a patent defect or an

error of jurisdiction or law or the perversity which has crept in such proceedings.

15. It would be apposite to refer to the judgment of this Court in Amit Kapoor v. Ramesh Chander [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460: (2012) 4 SCC (Civ) 687:

of (2013) 1 SCC (Cri) 986], where scope of Section 397 has been considered and succinctly explained as under: (SCC p. 475, paras 12-13) "12. Section 397 of the Code vests the court with rt the power to call for and examine the records of an inferior court for the purposes of satisfying

itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a

well-founded error, and it may not be appropriate for the court to scrutinise the orders, which, upon the face of it, bear a token of careful

consideration and appear to be in accordance

with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions

under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored, or judicial discretion is exercised arbitrarily or perversely.

These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.

13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a

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routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where

the Court is dealing with the question as to

whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in the exercise of its

revisional jurisdiction unless the case substantially falls within the categories aforestated. Even the framing of the charge is a

of much-advanced stage in the proceedings under CrPC."

14. It was held in Kishan Rao v. Shankargouda, (2018) 8 rt SCC 165: (2018) 3 SCC (Cri) 544: (2018) 4 SCC (Civ) 37: 2018 SCC

OnLine SC 651 that it is impermissible for the High Court to

reappreciate the evidence and come to its conclusions in the

absence of any perversity. It was observed at page 169:

"12. This Court has time and again examined the scope of Sections 397/401 CrPC and the grounds for exercising the

revisional jurisdiction by the High Court. In State of Kerala v. Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC 452: 1999 SCC (Cri) 275], while considering the scope of the

revisional jurisdiction of the High Court, this Court has laid down the following: (SCC pp. 454-55, para 5)

5. ... In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings to satisfy 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 a miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court, nor can it be

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treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its conclusion on the same when the evidence has already been appreciated by the

.

Magistrate as well as the Sessions Judge in

appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise amount to a gross miscarriage of

justice. On scrutinising the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation in concluding that the High

of Court exceeded its jurisdiction in interfering with the conviction of the respondent by rt reappreciating the oral evidence. ..."

13. Another judgment which has also been referred to and relied on by the High Court is the judgment of this Court in

Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke, (2015) 3 SCC 123: (2015) 2 SCC (Cri) 19]. This Court held that the High Court, in the exercise of revisional jurisdiction, shall not interfere with the order of the Magistrate unless

it is perverse or wholly unreasonable or there is non- consideration of any relevant material, the order cannot be set aside merely on the ground that another view is

possible. The following has been laid down in para 14: (SCC p. 135)

"14. ... Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly

unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose

2026:HHC:3556

decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised

arbitrarily or capriciously, the courts may not interfere

with the decision in exercise of their revisional jurisdiction."

15. This position was reiterated in Bir Singh v. Mukesh

Kumar, (2019) 4 SCC 197: (2019) 2 SCC (Cri) 40: (2019) 2 SCC (Civ)

of 309: 2019 SCC OnLine SC 13, wherein it was observed at page 205:

"16. It is well settled that in the exercise of revisional rt jurisdiction under Section 482 of the Criminal Procedure Code, the High Court does not, in the absence of

perversity, upset concurrent factual findings. It is not for the Revisional Court to re-analyse and re-interpret the evidence on record.

17. As held by this Court in Southern Sales & Services v.

Sauermilch Design and Handels GmbH, (2008) 14 SCC 457, it is a well-established principle of law that the Revisional Court will not interfere even if a wrong order is passed by a

court having jurisdiction, in the absence of a jurisdictional

error. The answer to the first question is, therefore, in the negative."

16. The present revision has to be decided as per the

parameters laid down by the Hon'ble Supreme Court

17. The ingredients of an offence punishable under

Section 138 of the NI Act were explained by the Hon'ble Supreme

Court in Kaveri Plastics v. Mahdoom Bawa Bahrudeen Noorul, 2025

SCC OnLine SC 2019 as under: -

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5.1.1. In K.R. Indira v. Dr. G. Adinarayana (2003) 8 SCC 300, this Court enlisted the components, aspects and the acts, the concatenation of which would make the offence under Section 138 of the Act complete, to be these (i) drawing of the cheque by a person on an account maintained by him

.

with a banker, for payment to another person from out of

that account for discharge in whole/in part of any debt or liability, (ii) presentation of the cheque by the payee or the holder in due course to the bank, (iii) returning the cheque

unpaid by the drawee bank for want of sufficient funds to the credit of the drawer or any arrangement with the banker to pay the sum covered by the cheque, (iv) giving

of notice in writing to the drawer of the cheque within 15 days of the receipt of information by the payee from the bank regarding the return of the cheque as unpaid rt demanding payment of the cheque amount, and (v) failure of the drawer to make payment to the payee or the holder in due course of the cheque, of the amount covered by the

cheque within 15 days of the receipt of the notice.

18. The accused stated in his statement recorded under

Section 313 of Cr.P.C. that Raju Chauhan had approached him to

purchase the machine. He stated that he had issued a cheque to

the complainant and Raju Chauhan. He stated that he had paid

the entire cheque amount to the complainant by means of a bank

draft. Thus, the statement of the accused shows that he has not

disputed the issuance of the cheque and his signature. It was laid

down by the Hon'ble Supreme Court in APS Forex Services (P) Ltd.

v. Shakti International Fashion Linkers (2020) 12 SCC 724, that

when the issuance of a cheque and signature on the cheque are

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not disputed, a presumption would arise that the cheque was

issued in discharge of the legal liability. It was observed: -

"9. Coming back to the facts in the present case and

.

because the accused has admitted the issuance of the

cheques and his signature on the cheque and that the cheque in question was issued for the second time after the

earlier cheques were dishonoured and that even according to the accused some amount was due and payable, there is a presumption under Section 139 of the NI Act that there

of exists a legally enforceable debt or liability. Of course, such a presumption is rebuttable. However, to rebut the presumption, the accused was required to lead evidence that the full amount due and payable to the complainant rt had been paid. In the present case, no such evidence has been led by the accused. The story put forward by the

accused that the cheques were given by way of security is not believable in the absence of further evidence to rebut the presumption, and more particularly, the cheque in question was issued for the second time after the earlier

cheques were dishonoured. Therefore, both the courts below have materially erred in not properly appreciating and considering the presumption in favour of the

complainant that there exists a legally enforceable debt or liability as per Section 139 of the NI Act. It appears that

both the learned trial court as well as the High Court have committed an error in shifting the burden upon the complainant to prove the debt or liability, without

appreciating the presumption under Section 139 of the NI Act. As observed above, Section 139 of the Act is an example of reverse onus clause and therefore, once the issuance of the cheque has been admitted and even the signature on the cheque has been admitted, there is always a presumption in favour of the complainant that there exists legally enforceable debt or liability and thereafter, it is for the accused to rebut such presumption by leading evidence."

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19. A similar view was taken in N. Vijay Kumar v.

Vishwanath Rao N., 2025 SCC OnLine SC 873, wherein it was held as

under:

.

"6. Section 118 (a) assumes that every negotiable instrument is made or drawn for consideration, while Section 139 creates a presumption that the holder of a

cheque has received the cheque in discharge of a debt or liability. Presumptions under both are rebuttable, meaning they can be rebutted by the accused by raising a probable

of defence."

20. This position was reiterated in Sanjabij Tari v. Kishore rt S. Borcar, 2025 SCC OnLine SC 2069, wherein it was observed:

"ONCE EXECUTION OF A CHEQUE IS ADMITTED, PRESUMPTIONS UNDER SECTIONS 118 AND 139 OF THE NI ACT ARISE

15. In the present case, the cheque in question has admittedly been signed by the Respondent No. 1-Accused. This Court is of the view that once the execution of the

cheque is admitted, the presumption under Section 118 of the NI Act that the cheque in question was drawn for

consideration and the presumption under Section 139 of the NI Act that the holder of the cheque received the said cheque in discharge of a legally enforceable debt or

liability arises against the accused. It is pertinent to mention that observations to the contrary by a two-Judge Bench in Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54, have been set aside by a three-Judge Bench in Rangappa (supra).

16. This Court is further of the view that by creating this presumption, the law reinforces the reliability of cheques as a mode of payment in commercial transactions.

17. Needless to mention that the presumption contemplated under Section 139 of the NI Act is rebuttable.

However, the initial onus of proving that the cheque is not

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in discharge of any debt or other liability is on the accused/drawer of the cheque [See: Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197].

21. Thus, the learned Courts below were justified in

raising the presumption that the cheque was issued in discharge

of the liability for consideration.

22. The accused did not examine any person to prove the

of plea taken by him that he had issued a cheque in favour of Raju

Chauhan. He relied upon his statement recorded under Section rt 313 of Cr.P.C. to prove his defence. It was held in Sumeti Vij v.

Paramount Tech Fab Industries, (2022) 15 SCC 689: 2021 SCC

OnLine SC 201 that the accused has to lead defence evidence to

rebut the presumption and mere denial in his statement under

Section 313 of Cr.PC is not sufficient. It was observed at page 700:

"20. That apart, when the complainant exhibited all these

documents in support of his complaints and recorded the statement of three witnesses in support thereof, the appellant recorded her statement under Section 313 of the

Code but failed to record evidence to disprove or rebut the presumption in support of her defence available under Section 139 of the Act. The statement of the accused recorded under Section 313 of the Code is not substantive evidence of defence, but only an opportunity for the accused to explain the incriminating circumstances appearing in the prosecution's case against the accused. Therefore, there is no evidence to rebut the presumption that the cheques were issued for consideration." (Emphasis supplied)"

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23. Therefore, the statement of the accused recorded

under Section 313 of Cr.P.C. was not a legally admissible

statement, and the accused cannot derive any advantage from it.

24. The cheque (Ext.CW1/B) is in the name of Nettar

Singh Chauhan and does not mention the name of Raju Chauhan.

The complainant denied in his cross-examination that he had

of filled the cheque. It was not suggested to the complainant that

the cheque was issued in the name of Raju Chauhan. Thus, the rt plea taken by the accused that he had issued the cheque to Raju

Chauhan was not proved on record, and the learned Courts below

had rightly held that the accused had failed to rebut the

presumption attached to the cheque.

25. The complainant admitted in his cross-examination

that the money was deposited in his account by means of a

demand draft. The accused also stated this fact in his statement

recorded under Section 313 of Cr.P.C.; however, the copy of the

demand draft and the statement of account were not brought on

record to substantiate this defence. Thus, there is nothing to

show that payment was made before the filing of the complaint.

It was laid down by the Hon'ble Supreme Court in Rajneesh

Aggarwal v. Amit J. Bhalla, (2001) 1 SCC 631, that any payment

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made after the cause of action had arisen would not wipe out the

offence. It was observed:-

7. So far as the question of deposit of the money during the

.

pendency of these appeals is concerned, we may state that

in course of hearing the parties wanted to settle the matter in Court and it is in that connection, to prove the bona

fides, the respondent deposited the amount covered under all the three cheques in the Court, but the complainant's counsel insisted that if there is going to be a settlement,

of then all the pending cases between the parties should be settled, which was, however not agreed to by the respondent and, therefore, the matter could not be settled. So far as the criminal complaint is concerned, once the rt offence is committed, any payment made subsequent thereto will not absolve the accused of the liability of

criminal offence, though in the matter of awarding of sentence, it may have some effect on the court trying the offence. But by no stretch of imagination, a criminal proceeding could be quashed on account of the deposit of

money in the court or that an order of quashing of a criminal proceeding, which is otherwise unsustainable in law, could be sustained because of the deposit of money in

this Court. In this view of the matter, the so-called deposit of money by the respondent in this Court is of no

consequence.

26. Thus, the amount of ₹3,00,000/- deposited in the

complainant's account could not have been used to dismiss the

complaint.

27. The accused admitted in his statement recorded

under Section 313 of Cr.P.C. that the cheque was dishonoured

with an endorsement 'stop payment'. It was laid down by the

Hon'ble Supreme Court in Laxmi Dyechem v. State of Gujarat,

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(2012) 13 SCC 375: (2012) 4 SCC (Cri) 283: 2012 SCC OnLine SC 970

that the dishonour of a cheque on the ground that the drawer

stopped the payment will attract the provisions of Section 138 of

the NI Act. It was observed at page 388:

12. In Modi Cements Ltd. [(1998) 3 SCC 249: 1999 SCC (Cri)

252], a similar question had arisen for the consideration of this Court. The question was whether dishonour of a cheque on the ground that the drawer had stopped

of payment was a dishonour punishable under Section 138 of the Act. Relying upon two earlier decisions of this Court in Electronics Trade & Technology Development Corpn. Ltd. v.

rt Indian Technologists and Engineers (Electronics) (P) Ltd. [(1996) 2 SCC 739: 1996 SCC (Cri) 454] and K.K. Sidharthan v. T.P. Praveena Chandran [(1996) 6 SCC 369: 1996 SCC (Cri)

1340], it was contended by the drawer of the cheque that if the payment was stopped by the drawer, the dishonour of the cheque could not constitute an offence under Section

138 of the Act. That contention was specifically rejected by this Court. Not only that, the decision in Electronics Trade & Technology Development Corpn. Ltd. [(1996) 2 SCC 739:

1996 SCC (Cri) 454] to the extent that the same held that dishonour of the cheque by the bank after the drawer had

issued a notice to the holder not to present the same would not constitute an offence, was overruled. This Court observed: (Modi Cements Ltd. case [(1998) 3 SCC 249: 1999

SCC (Cri) 252], SCC pp. 257-58, paras 18 & 20) "18. The aforesaid propositions in both these reported judgments, in our considered view, with great respect, are contrary to the spirit and object of Sections 138 and

139 of the Act. If we are to accept this proposition, it will make Section 138 a dead letter, for, by giving instructions to the bank to stop payment immediately after issuing a cheque against a debt or liability, the drawer can easily get rid of the penal consequences, notwithstanding the fact that a deemed offence was committed. Further, the following observations in para

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6 in Electronics Trade & Technology Development Corpn. Ltd. [(1996) 2 SCC 739: 1996 SCC (Cri) 454] (SCC p. 742) Section 138 is intended to prevent dishonesty on the part of the drawer of a negotiable instrument to

draw a cheque without sufficient funds in his

account maintained by him in a bank and induce the payee or holder in due course to act upon it. Section 138 draws the presumption that one commits the

offence if one issues the cheque dishonestly. In our opinion, do not also lay down the law correctly.

***

20. On a careful reading of Section 138 of the Act, we are unable to subscribe to the view that Section 138 of the Act draws a presumption of dishonesty against the rt drawer of the cheque if he without sufficient funds to his credit in his bank account to honour the cheque

issues the same and, therefore, this amounts to an offence under Section 138 of the Act. For the reasons stated hereinabove, we are unable to share the views expressed by this Court in the above two cases, and we

respectfully differ with the same regarding the interpretation of Section 138 of the Act to the limited extent as indicated above." (emphasis in original)

13. We may also, at this stage, refer to the decisions of this

Court in M.M.T.C. Ltd. v. Medchl Chemicals and Pharma (P) Ltd. [(2002) 1 SCC 234: 2002 SCC (Cri) 121], where to this Court considering an analogous question held that even in

cases where the dishonour was on account of "stop- payment" instructions of the drawer, a presumption regarding the cheque being for consideration would arise under Section 139 of the Act. The Court observed: (SCC p. 240, para 19) "19. Just such a contention has been negatived by this Court in Modi Cements Ltd. v. Kuchil Kumar Nandi [(1998) 3 SCC 249: 1999 SCC (Cri) 252]. It has been held that even though the cheque is dishonoured by reason of a 'stop-payment' instruction, an offence under Section 138 could still be made out. It is held that the

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presumption under Section 139 is also attracted in such a case. The authority shows that even when the cheque is dishonoured by reason of 'stop-payment' instructions by virtue of Section 139, the court has to presume that the cheque was received by the holder for

the discharge, in whole or in part, of any debt or

liability. Of course, this is a rebuttable presumption. The accused can thus show that the 'stop-payment' instructions were not issued because of insufficiency or

paucity of funds. If the accused shows that in his account there were sufficient funds to clear the amount of the cheque at the time of presentation of the cheque

of for encashment at the drawer bank and that the stop- payment notice had been issued because of other valid reasons, including that there was no existing debt or rt liability at the time of presentation of a cheque for encashment, then offence under Section 138 would not be made out. The important thing is that the burden of

so proving would be on the accused. Thus, a court cannot quash a complaint on this ground."

14. To the same effect is the decision of this Court in

Goaplast (P) Ltd. v. Chico Ursula D'Souza [(2003) 3 SCC 232:

2003 SCC (Cri) 603: 2003 Cri LJ 1723] where this Court held that "stop-payment instructions" and consequent

dishonour of a post-dated cheque attract the provision of Section 138. This Court observed: (SCC pp. 232g-233c)

"Chapter XVII, containing Sections 138 to 142, was introduced in the Act by Act 66 of 1988 with the object

of inculcating faith in the efficacy of banking operations and giving credibility to negotiable instruments in business transactions. The said provisions were intended to discourage people from not honouring their commitments by way of payment through cheques. The court should lean in favour of an interpretation which serves the object of the statute. A post-dated cheque will lose its credibility and acceptability if its payment can be stopped routinely. The purpose of a post-dated cheque is to provide some accommodation to the drawer of the cheque. Therefore, it is all the more

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necessary that the drawer of the cheque should not be allowed to abuse the accommodation given to him by a creditor by way of acceptance of a post-dated cheque. In view of Section 139, it has to be presumed that a

.

cheque is issued in the discharge of any debt or other

liability. The presumption can be rebutted by adducing evidence, and the burden of proof is on the person who wants to rebut the presumption. This presumption,

coupled with the object of Chapter XVII of the Act, leads to the conclusion that by countermanding payment of a post- dated cheque, a party should not be allowed to get away

of from the penal provision of Section 138 of the Act. A contrary view would render Section 138 a dead letter and will provide a handle to persons trying to avoid payment under legal obligations undertaken by them through their rt own acts, which, in other words, can be said to be taking advantage of one's own wrong." (emphasis

supplied)

28. It was submitted that the cheque was presented

initially and was dishonoured with an endorsement 'funds

insufficient'. It was again presented and was dishonoured with

an endorsement 'payment stopped by the drawer'. The cause of

action was complete after the first dishonour of the cheque, and

it could not be revived by the subsequent presentation of the

cheque. This submission is not acceptable. It was laid down by

the Hon'ble Supreme Court in MSR Leathers v. S. Palaniappan

(2013) 1 SCC 177 that there is nothing in the NI Act to prevent the

repeated presentation of the cheque or issuance of successive

notices. It was observed:

2026:HHC:3556

"33. Applying the above rule of interpretation and the provisions of Section 138, we have no hesitation in holding that a prosecution based on a second or successive default in payment of the cheque amount should not be

.

impermissible simply because no prosecution based on the

first default, which was followed by a statutory notice and a failure to pay, had not been launched. If the entire purpose underlying Section 138 of the Negotiable

Instruments Act is to compel the drawers to honour their commitments made in the course of their business or other affairs, there is no reason why a person who has

of issued a cheque which is dishonoured and who fails to make payment despite statutory notice served upon him should be immune to prosecution simply because the holder of the cheque has not rushed to the court with a rt complaint based on such default or simply because the drawer has made the holder defer prosecution promising

to make arrangements for funds or any other similar reason. There is, in our opinion, no real or qualitative difference between a case where default is committed, and

prosecution immediately launched and another where the prosecution is deferred till the cheque presented again gets dishonoured for the second or successive time.

*****

35. In the result, we overrule the decision in the Sadanandan case [(1998) 6 SCC 514: 1998 SCC (Cri) 1471] and hold that the prosecution based upon second or successive

dishonour of the cheque is also permissible so long as the same satisfies the requirements stipulated in the proviso to Section 138 of the Negotiable Instruments Act. The reference is answered accordingly. The appeals shall now be listed before the regular Bench for hearing and disposal in light of the observations made above."

29. This position was reiterated in Kamlesh Kumar v. State

of Bihar (2014) 2 SCC 424, and it was held that the complainant

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can present the cheque repeatedly and issue the notices

successively. It was observed:

.

"8. In the present case, the complainant had not filed the

complaint on the dishonour of the cheque in the first instance, but presented the said cheque again for encashment. This right of the complainant in presenting

the same very cheque for the second time is available to him under the aforesaid provision."

30. This position was reiterated in Bir Singh v. Mukesh

of Kumar, (2019) 4 SCC 197: (2019) 2 SCC (Cri) 40: (2019) 2 SCC (Civ)

309: 2019 SCC OnLine SC 138, wherein it was observed at page 203:

rt "7. Having regard to the object of Section 138 of the

Negotiable Instruments Act, a prosecution based on a second or successive default in payment of the cheque amount is not impermissible simply because no statutory notice had been issued after the first default and no

proceeding for prosecution had been initiated. As held by this Court in MSR Leathers v. S. Palaniappan [MSR Leathers v. S. Palaniappan, (2013) 1 SCC 177: (2013) 1 SCC

(Civ) 424 : (2013) 2 SCC (Cri) 458], there is no real or

qualitative difference between a case where default is committed and prosecution immediately launched and another where the prosecution is deferred till the cheque

presented again gets dishonoured for the second time or successive times."

31. Therefore, there is no bar in the successive

presentation of the cheque and issuance of the notice.

32. The accused admitted that the notice was served upon

him. He claimed that he had paid the amount, but there is no

proof of the fact that the payment was made before the filing of

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the complaint. Otherwise, the learned Courts below have rightly

held that the cheque was in partial discharge of the liability and

the total liability of the accused was ₹9,36,000/-; thus, any

payment of ₹3,00,000/- would not extinguish the liability of the

accused.

33. Thus, learned Courts below had rightly held that all

of the ingredients of the commission of an offence punishable

under Section 138 of the NI Act were duly satisfied.

34. rt Learned Trial Court sentenced the accused to undergo

simple imprisonment for one year and pay a fine of ₹5,00,000/-.

It was laid down by the Hon'ble Supreme Court in Bir Singh v.

Mukesh Kumar, (2019) 4 SCC 197: (2019) 2 SCC (Cri) 40: (2019) 2

SCC (Civ) 309: 2019 SCC OnLine SC 138 that the penal provision of

Section 138 of NI Act is a deterrent in nature. It was observed at

page 203:

"6. The object of Section 138 of the Negotiable Instru- ments Act is to infuse credibility into negotiable instru- ments, including cheques, and to encourage and promote the use of negotiable instruments, including cheques, in financial transactions. The penal provision of Section 138 of the Negotiable Instruments Act is intended to be a de- terrent to callous issuance of negotiable instruments such as cheques without serious intention to honour the prom- ise implicit in the issuance of the same."

2026:HHC:3556

35. Therefore, the sentence of one year cannot be said to

be excessive.

36. The cheque was issued for ₹3,00,000/- on 12.06.2010.

The sentence was imposed on 09.01.2024 after a lapse of more

than 14 years from the date of issuance of the cheque. The

learned Trial Court awarded a compensation of ₹5,00,000/-, out

of of which the cheque amount was ₹3,00,000/-, which means that

the learned Trial Court had only awarded ₹2,00,000/- as rt compensation on the cheque amount of ₹3,00,000/-. It was laid

down by the Hon'ble Supreme Court in Kalamani Tex v. P.

Balasubramanian, (2021) 5 SCC 283: (2021) 3 SCC (Civ) 25: (2021) 2

SCC (Cri) 555: 2021 SCC OnLine SC 75 that the Courts should

uniformly levy a fine up to twice the cheque amount along with

simple interest at the rate of 9% per annum. It was observed at

page 291: -

19. As regards the claim of compensation raised on behalf of the respondent, we are conscious of the settled princi-

ples that the object of Chapter XVII of NIA is not only puni- tive but also compensatory and restitutive. The provisions of NIA envision a single window for criminal liability for the dishonour of a cheque as well as civil liability for the realisation of the cheque amount. It is also well settled that there needs to be a consistent approach towards awarding compensation, and unless there exist special circum- stances, the courts should uniformly levy fines up to twice the cheque amount along with simple interest @ 9% p.a.

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[R. Vijayan v. Baby, (2012) 1 SCC 260, para 20: (2012) 1 SCC (Civ) 79: (2012) 1 SCC (Cri) 520]"

37. An amount of ₹2,00,000/- as compensation after the

lapse of merely 14 years is highly inadequate, but no appeal was

filed, and it is not possible to interfere with the sentence imposed

by the learned Trial Court.

38. No other point was urged.

39. In view of the above, the present revision fails, and

the same is dismissed.

40. Records of the learned Courts below be sent back

forthwith, along with a copy of this judgment.

(Rakesh Kainthla) Judge 23rd February, 2026