02.04.2026 vs Rakesh Kumar on 24 April, 2026

Himachal Pradesh High Court

Reserved On: 02.04.2026 vs Rakesh Kumar on 24 April, 2026

                                                                                               2026:HHC:13277




        IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                                Cr. Revision No. 432 of 2025
                                                Reserved on: 02.04.2026.




                                                                                      .
                                                Decided on: 24.04.2026





    Hoshiar Singh                                                             ....... Petitioner





                                      Versus
    Rakesh Kumar                                                              .... Respondent




                                                      of
    Coram

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

    For the Petitioner                           :        Mr G R Palsra, Advocate

    For the Respondent                          :         Mr Vinod Chauhan, Advocate


    Rakesh Kainthla, Judge

The present revision is directed against the

judgment dated 20.06.2025 passed by the learned Sessions

Judge, Mandi, District Mandi, H.P. (learned Appellate Court)

vide which judgment of conviction and order of sentence dated

24.12.2025 passed by the learned Additional Chief Judicial

Magistrate, Mandi, District Mandi, H.P. (learned Trial Court)

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

1
Whether the reporters of the local papers may be allowed to see the Judgment?Yes.

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manner as they were arrayed before the learned Trial Court for

convenience.)

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

.

revision 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 Negotiable

Instruments Act, 1881 (in short, ‘NI Act‘). It was asserted that

of
the parties were known to each other. The accused asked for

₹5,50,000 from
rt the complainant, and the complainant

advanced the amount to the accused. The accused issued a

cheque of ₹5,50,000 drawn on State Bank of India, Degree

College Mandi, District Mandi, to discharge his liability. The

complainant deposited the cheque in his bank, and it was

dishonoured with an endorsement “insufficient funds’. The

complainant issued a demand notice to the accused asking him

to pay the amount within 15 days. Notice was returned with an

endorsement of unclaimed, which is a deemed service. The

accused failed to pay the money despite the deemed service of

the notice. Hence, a complaint was filed before the learned Trial

Court against the accused for taking action as per law.

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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

.

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

not guilty and claimed to be tried.

4. The complainant examined himself (CW1) to prove

his complaint.

of

5. The accused, in his statement recorded under

section 313 Cr. P.C. denied the complainant’s case in its entirety.

rt
He stated that he had taken a loan from Kashmir Singh and had

issued a security cheque to him. Kashmir Singh did not return

the cheque, and the complainant misused the cheque. He

examined Bhavdev (DW1) and himself (DW2) to prove his

defence.

6. Learned Trial Court held that the cheque carries with

it a presumption that it was issued for consideration to

discharge debt/liability. The accused failed to rebut the

presumption. The plea taken by him that the cheque was

handed over to Kashmir Singh, as security was not proved by

producing any satisfactory evidence. The accused failed to show

any relationship between the complainant and Kashmir Singh.

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The cheque was dishonoured with endorsement “insufficient

funds”, and the notice was served upon the accused. 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 six months,

of
pay a compensation of ₹11,00,000/- and in default of the

payment of compensation to undergo further simple
rt
imprisonment for 5 months.

7. Being aggrieved by the judgment and order passed

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

was decided by the learned Sessions Judge, Mandi (learned

Appellate Court). The learned Appellate Court concurred with

the findings recorded by the learned Trial Court that a cheque

carries with it a presumption that it was issued for

consideration to discharge the debt/liability. The plea taken by

the accused that he had issued the cheque as security to

Kashmir Singh was not proved. Even if the cheque was issued as

a security, it would attract the provisions of section 138 of the

NI Act. The cheque was dishonoured with the endorsement

“insufficient funds”. Notice of demand was served upon the

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accused, and he failed to repay the amount despite receipt of a

valid notice of demand. The learned Trial Court had rightly

convicted the accused. The sentence imposed by the learned

.

Trial Court was adequate, and no inference was required with it.

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

of
revision asserting that the learned Courts below erred in

appreciating the material placed before them. The complainant
rt
failed to prove the existence of a legally enforceable

debt/liability. The returning memo was issued on 28/02/2018,

and a legal notice was issued on 19/03/2018. The complaint was

filed on 07/07/2018, which is beyond the period of limitation.

The complainant admitted in his cross-examination that

Kashmir Singh was known to him, the accused had borrowed

the money from Kashmir Singh, and Kashmir Singh had taken

two security cheques from the accused. These admissions

probablised the defence taken by the accused. The complainant

claimed that he had given money to the accused in the presence

of Dr Sanjeev, but Dr Sanjeev was not examined by the

complainant, and an adverse inference should have been drawn

against the complainant. Therefore, it was prayed that the

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present revision be allowed and the judgments and order passed

by the learned Courts below be set aside.

9. I have heard Mr G. R. Palsara, learned counsel for the

.

petitioner/accused and Mr Vinod Chauhan, learned counsel for

the respondent/complainant.

10. Mr G. R. Palsara, learned counsel for the

petitioner/accused, submitted that the learned Courts below

of
erred in appreciating the material placed before them. The

complaint was barred by limitation. The plea taken by the
rt
accused that the cheque was handed over to Kashmir Singh as

security was made probable by the cross-examination of the

complainant and the defence evidence produced by the accused.

The learned courts below erred in convicting 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.

11. Mr Vinod Chauhan, Ld. counsel for the

respondent/complainant, submitted that the complaint was

filed within the period of limitation. The accused admitted his

signature on the cheque, and a presumption that the cheque

was issued in discharge of the debt/liability would be attracted.

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The accused had failed to rebut the presumption. Both the

learned Courts below had rightly convicted and sentenced the

accused, and this Court should not interfere with the concurrent

.

findings of facts recorded by the learned Courts below. Hence,

he prayed that the present revision be dismissed.

12. I have given a considerable thought to the

submissions made at the bar and have gone through the records

of
carefully.

13. It was laid down by the Hon’ble Supreme Court in
rt
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

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

207-

“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

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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.

14. 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:

of
“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
rt
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:

(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
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

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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 routine
manner. One of the inbuilt restrictions is that it

of
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
rt 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
much-advanced stage in the proceedings under

CrPC.”

15. It was held in Kishan Rao v. Shankargouda, (2018) 8

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

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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
treated even as a second appellate jurisdiction.

of
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
rt 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 Court exceeded its

jurisdiction in interfering with the conviction of
the respondent by 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

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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 decision is sought
to be revised, is shown to be perverse or untenable
in law or is grossly erroneous or glaringly

of
unreasonable or where the decision is based on no
material or where the material facts are wholly
ignored or where the judicial discretion is
rt exercised arbitrarily or capriciously, the courts
may not interfere with the decision in exercise of
their revisional jurisdiction.”

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

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

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

“16. It is well settled that in the exercise of revisional

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.”

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

parameters laid down by the Hon’ble Supreme Court.

18. 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: –

5.1.1. In K.R. Indira v. Dr. G. Adinarayana (2003) 8 SCC 300,

of
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
rt
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 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 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.

19. It was asserted in the memorandum of revision that

the complaint is barred by limitation because the returning

memo was issued on 28/02/2018, legal notice was served on

19/03/2018, but the complaint was filed on 07/07/2018. It was

rightly submitted on behalf of the accused that this is a positive

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mis-statement because the complaint was filed on 26/04/2018

and not on 07/07/2018. Therefore, the very basis of the

submission that the complaint was filed on 07/07/2018 is

.

factually incorrect, and it cannot be said that the complaint as

barred by limitation

20. The accused claimed that he had issued the cheque

in favour of Kashmir Singh. This shows that the issuance of the

of
cheque and the signature of the accused are not disputed. The

learned Courts below had rightly held that once the signatures
rt
on the cheque and issuance of the cheque are not disputed, a

presumption would be triggered that the cheque was issued in

discharge of the debt/liability. 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 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
considering the fact that 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 exists a legally enforceable debt or

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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 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

of
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
rt
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.”

21. It was laid down 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 defence.”

22. A similar view was taken in Sanjabij Tari v. Kishore S.

Borcar, 2025 SCC OnLine SC 2069, wherein it was observed:

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“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

of
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).

rt

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 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].

23. Thus, the Court has to start with the presumption

that the cheque was issued in discharge of the liability for

consideration, and the burden is upon the accused to rebut this

presumption.

24. The accused, Hoshiar Singh (DW2), stated that he

had taken the loan of ₹ 2 Lacs from Kashmir Singh to start his

business and handed over 4 cheques to him. He stated in his

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cross-examination that he had not made any complaint to the

police regarding the non-return of the cheque.

25. Bhavdev (DW1) stated that the accused had taken a

.

loan of ₹ 2 Lacs from Kashmir Singh and handed over 4 cheques

to him, out of which two were in the name of Hoshiar Singh,

and two were in the name of Rohit. The accused had returned

the amount within 20-25 days, but Kashmir Singh had not

of
returned the cheques. He stated in his cross-examination that

he was not aware of any transaction that took place between the
rt
parties in the year 2018. He was not aware of any cheque issued

by the accused in favour of the complainant.

26. The learned Courts below had rightly rejected the

defence taken by the accused. The accused had not reported the

fact to any person that his cheques were not returned by

Kashmir Singh. He had not even made any complaint to the

bank asking it to stop the payment to secure his interest. The

accused has not explained why the name of Kashmir Singh did

not appear on the cheques if they were handed over to Kashmir

Singh. Statement of the Bhavdev (DW1) is highly vague, and he

could not deny the transaction between the complainant and

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the accused. Hence, the learned Courts below were justified in

rejecting the defence version.

27. The complainant denied in his cross-examination

.

that the accused had taken the loan from Kashmir Singh. He

volunteered to say that the accused had taken the loan from him

(the complainant). He admitted that Kashmir Singh had taken

two security cheques from the accused. However, this

of
admission will not help the accused because the cheque in the

present case was not connected to the cheque handed over as
rt
security to Kashmir Singh. Therefore, the cross-examination of

the complainant does not help the case of the accused.

28. The complainant stated in his cross-

examination that the money was advanced in the presence of Dr

Sanjeev. It was submitted that Dr Sanjeev was not examined,

and the complainant’s case was not proved. This submission

will not help the accused. It was laid down by the Hon’ble

Supreme Court in Uttam Ram v. Devinder Singh Hudan, (2019) 10

SCC 287: 2019 SCC OnLine SC 1361, that a presumption under

Section 139 of the NI Act would obviate the requirement to

prove the existence of consideration. It was observed:

“20. Th
̨ e trial court and the High Court proceeded as if
the appellant was to prove a debt before the civil court,

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wherein the plaintiff is required to prove his claim on the
basis of evidence to be laid in support of his claim for the
recovery of the amount due. An dishonour of a cheque
carries a statutory presumption of consideration. The
holder of the cheque in due course is required to prove
that the cheque was issued by the accused and that when

.

the same was presented, it was not honoured. Since there
is a statutory presumption of consideration, the burden
is on the accused to rebut the presumption that the
cheque was issued not for any debt or other liability.”

29. This position was reiterated in Ashok Singh v. State of

U.P., 2025 SCC OnLine SC 706, wherein it was observed:

of
“22. The High Court while allowing the criminal revision
has primarily proceeded on the presumption that it was
rt
obligatory on the part of the complainant to establish his
case on the basis of evidence by giving the details of the
bank account as well as the date and time of the

withdrawal of the said amount which was given to the
accused and also the date and time of the payment made
to the accused, including the date and time of receiving
of the cheque, which has not been done in the present

case. Pausing here, such presumption on the
complainant, by the High Court, appears to be
erroneous. The onus is not on the complainant at the

threshold to prove his capacity/financial wherewithal to
make the payment in discharge of which the cheque is

alleged to have been issued in his favour. Only if an
objection is raised that the complainant was not in a
financial position to pay the amount so claimed by him

to have been given as a loan to the accused, only then
would the complainant would have to bring before the
Court cogent material to indicate that he had the
financial capacity and had actually advanced the amount
in question by way of loan. In the case at hand, the
appellant had categorically stated in his deposition and
reiterated in the cross-examination that he had
withdrawn the amount from the bank in Faizabad
(Typed Copy of his deposition in the paperbook wrongly

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mentions this as ‘Firozabad’). The Court ought not to
have summarily rejected such a stand, more so when
respondent no. 2 did not make any serious attempt to
dispel/negate such a stand/statement of the appellant.

Thus, on the one hand, the statement made before the
Court, both in examination-in-chief and cross-

.

examination, by the appellant with regard to
withdrawing the money from the bank for giving it to
the accused has been disbelieved, whereas the argument
on behalf of the accused that he had not received any

payment of any loan amount has been accepted. In our
decision in S. S. Production v. Tr. Pavithran Prasanth, 2024
INSC 1059, we opined:

of
‘8. From the order impugned, it is clear that though
the contention of the petitioners was that the said
amounts were given for producing a film and were not
rt by way of return of any loan taken, which may have
been a probable defence for the petitioners in the case,
but rightly, the High Court has taken the view that

evidence had to be adduced on this point which has
not been done by the petitioners. Pausing here, the
Court would only comment that the reasoning of the
High Court, as well as the First Appellate Court and

Trial Court, on this issue is sound. Just by taking a
counter-stand to raise a probable defence would not
shift the onus on the complainant in such a case, for

the plea of defence has to be buttressed by evidence,
either oral or documentary, which in the present case

has not been done. Moreover, even if it is presumed
that the complainant had not proved the source of the
money given to the petitioners by way of loan by

producing statement of accounts and/or Income Tax
Returns, the same ipso facto, would not negate such
claim for the reason that the cheques having being
issued and signed by the petitioners has not been
denied, and no evidence has been led to show that the
respondent lacked capacity to provide the amount(s)
in question. In this regard, we may make profitable
reference to the decision in Tedhi Singh v. Narayan
Dass Mahant, (2022) 6 SCC 735:

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’10. The trial court and the first appellate court
have noted that in the case under Section 138 of
the NI Act, the complainant need not show in the
first instance that he had the capacity. The
proceedings under Section 138 of the NI Act are not
a civil suit. At the time, when the complainant

.

gives his evidence, unless a case is set up in the
reply notice to the statutory notice sent, that the
complainant did not have the wherewithal, it
cannot be expected of the complainant to initially

lead evidence to show that he had the financial
capacity. To that extent, the courts in our view
were right in holding on those lines. However, the

of
accused has the right to demonstrate that the
complainant in a particular case did not have the
capacity and therefore, the case of the accused is
rt acceptable, which he can do by producing
independent materials, namely, by examining his
witnesses and producing documents. It is also

open to him to establish the very same aspect by
pointing to the materials produced by the
complainant himself. He can further, more
importantly, further achieve this result through

the cross-examination of the witnesses of the
complainant. Ultimately, it becomes the duty of
the courts to consider carefully and appreciate the

totality of the evidence and then come to a
conclusion whether, in the given case, the accused

has shown that the case of the complainant is in
peril for the reason that the accused has
established a probable defence.'(emphasis

supplied)’ (underlining in original; emphasis
supplied by us in bold).

30. A similar view was taken in Sanjay Sanjabij Tari v.

Kishore S. Borcar, 2025 SCC OnLine SC 2069, wherein it was

observed:

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“21. This Court also takes judicial notice of the fact that
some District Courts and some High Courts are not giving
effect to the presumptions incorporated in Sections 118
and 139 of the NI Act and are treating the proceedings
under the NI Act as another civil recovery proceedings
and are directing the complainant to prove the

.

antecedent debt or liability. This Court is of the view that
such an approach is not only prolonging the trial but is
also contrary to the mandate of Parliament, namely, that
the drawer and the bank must honour the cheque;

otherwise, trust in cheques would be irreparably
damaged.”

of

31. Therefore, the complainant’s case cannot be

doubted because Dr Sanjeev was not examined.

32.
rt
There is no other evidence to rebut the presumption

attached to the cheque, and the learned Courts below had

rightly held that the accused had failed to rebut the

presumption attached to the cheque.

33. The complainant stated that the cheque had been

dishonoured with the endorsement “insufficient funds”. This

was duly proved by memo (Ex.CW-1/C) wherein the reason of

dishonour was mentioned as “insufficient funds.” It was laid

down by the Hon’ble Supreme Court in Mandvi Cooperative Bank

Ltd. v. Nimesh B. Thakore, (2010) 3 SCC 83: (2010) 1 SCC (Civ) 625:

(2010) 2 SCC (Cri) 1: 2010 SCC OnLine SC 155 that the memo

issued by the Bank is presumed to be correct and the burden is

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upon the accused to rebut the presumption. It was observed at

page 95:

24. Section 146, making a major departure from the

.

principles of the Evidence Act, provides that the bank’s

slip or memo with the official mark showing that the
cheque was dishonoured would, by itself, give rise to the
presumption of dishonour of the cheque, unless and until

that fact was disproved. Section 147 makes the offences
punishable under the Act compoundable.

34. In the present case, no evidence was produced to

of
rebut the presumption, and the learned Courts below had

rightly held that the cheque was dishonoured with an
rt
endorsement ‘insufficient funds.’

35. The complainant stated in his proof affidavit (Ex.

CW1/A) that the registered letter containing the notice was

returned with an endorsement ‘unclaimed’. His statement is

corroborated by the envelope (Ex. CW-1/F) in which an

endorsement was made that ‘the addressee was not available

despite repeated visits.’ This envelope was sent to the address at

which the service of the accused was effected. The accused also

furnished the same address in his statement recorded under

Section 313 Cr.P.C. and the notice of accusation. Therefore, the

notice was sent to the correct address. It was laid down by the

Hon’ble Supreme Court in D. Vinod Shivappa v. Nanda Belliappa,

(2006) 6 SCC 456: (2006) 3 SCC (Cri) 114: 2006 SCC OnLine SC 629,

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that a notice returned with an endorsement “house locked”

would lead to a presumption that the notice was validly served

and the burden would be upon the accused to show that the

.

report is incorrect. It was observed at page 462:

“14. If a notice is issued and served upon the drawer of
the cheque, no controversy arises. Similarly, if the notice

is refused by the addressee, it may be presumed to have
been served. This is also not disputed. This leaves us with
the third situation where the notice could not be served

of
on the addressee for one or the other reason, such as his
non-availability at the time of delivery, or premises
remaining locked on account of his having gone
elsewhere, etc. etc. If in each such case the law is
rt
understood to mean that there has been no service of
notice, it would completely defeat the very purpose of the

Act. It would then be very easy for an unscrupulous and
dishonest drawer of a cheque to make himself scarce for
some time after issuing the cheque so that the requisite
statutory notice can never be served upon him, and

consequently, he can never be prosecuted. There is good
authority to support the proposition that once the
complainant, the payee of the cheque, issues notice to

the drawer of the cheque, the cause of action to file a
complaint arises on the expiry of the period prescribed

for payment by the drawer of the cheque. If he does not
file a complaint within one month of the date on which
the cause of action arises under clause (c) of the proviso

to Section 138 of the Act, his complaint gets barred by
time. Thus, a person who can dodge the postman for
about a month or two, or a person who can get a fake
endorsement made regarding his non-availability, can
successfully avoid his prosecution because the payee is
bound to issue notice to him within a period of 30 days
from the date of receipt of information from the bank
regarding the return of the cheque as unpaid. He is,
therefore, bound to issue the legal notice, which may be

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returned with an endorsement that the addressee is not
available at the given address.

xxxxx

18. This Court noticed the position well settled in law that
the notice refused to be accepted by the drawer can be

.

presumed to have been served on him. In that case, the

notice was returned as “unclaimed” and not as refused.
The Court posed the question, “Will there be any
significant difference between the two so far as the

presumption of service is concerned?” Their Lordships
referred to Section 27 of the General Clauses Act and
observed that the principle incorporated therein could

of
profitably be imported in a case where the sender had
dispatched the notice by post with the correct address
written on it. Then it can be deemed to have been served
on the sendee, unless he proves that it was not really
rt
served and that he was not responsible for such non-
service. This Court dismissed the appeal preferred by the

drawer, holding that where the notice is returned by the
addressee as unclaimed, such date of return to the sender
would be the commencing date in reckoning the period of
15 days contemplated in clause (c) of the proviso to

Section 138 of the Act. This would be without prejudice to
the right of the drawer of the cheque to show that he had
no knowledge that the notice was brought to his address.
Since the appellant did not attempt to discharge the

burden to rebut the aforesaid presumption, the appeal
was dismissed by this Court. The aforesaid decision is

significant for two reasons. Firstly, it was held that the
principle incorporated in Section 27 of the General
Clauses Act would apply in a case where the sender

dispatched the notice by post with the correct address
written on it, but that would be without prejudice to the
right of the drawer of the cheque to show that he had no
knowledge that the notice was brought to his address.”

36. It was laid down by the Hon’ble Supreme Court of

India in C.C. Allavi Haji vs. Pala Pelly Mohd. 2007(6) SCC 555, that

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when a notice is returned unclaimed, it is deemed to be served.

It was observed:

“8. Since in Bhaskaran’s case (supra), the notice issued in

.

terms of Clause (b) had been returned unclaimed and not

as refused, the Court, posed the question: “Will there be
any significant difference between the two so far as the
presumption of service is concerned?” It was observed

that though Section 138 of the Act does not require that
the notice should be given only by “post”, yet in a case
where the sender has dispatched the notice by post with
the correct address written on it, the principle

of
incorporated in Section 27 of the General Clauses Act,
1897 (for short ‘G.C. Act‘) could profitably be imported in
such a case. It was held that in this situation service of
notice is deemed to have been effected on the sendee
rt
unless he proves that it was not really served and that he
was not responsible for such non-service.”

37. This position was reiterated in Priyanka Kumari vs.

Shailendra Kumar (13.10.2023- SC Order): MANU/ SCOR/ 133284/

2023, wherein it was observed:

“As it was held by the Hon’ble Supreme Court in K.

Bhaskaran Vs. Sankaran Vaidhyan Balan and Another,
(1999) 7 Supreme Court Cases 510, that when notice is

returned as ‘unclaimed’, it shall be deemed to be duly
served upon the addressee, and it is a proper service of
notice. In the case of Ajeet Seeds Limited Vs. K. Gopala

Krishnaiah (2014) 12 SCC 685 (2014), the Hon’ble Court,
while interpreting Section 27 of the General Clauses Act
1897 and also Section 114 of the Evidence Act 1872, held
as under: –

“Section 114 of the Evidence Act, 1872, enables the
court to presume that in the common course of
natural events, the communication sent by post
would have been delivered at the address of the
addressee. Further, Section 27 of the General

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Clauses Act, 1897 gives rise to a presumption that
service of notice has been effected when it is sent to
the correct address by registered post. It is not
necessary to aver in the complaint that, despite the
return of the notice unserved, it is deemed to have
been served or that the addressee is deemed to have

.

knowledge of the notice. Unless and until the
contrary is proved by the addressee, service of notice
is deemed to have been effected at the time at which
the letter would have been delivered in the ordinary

course of business.”

38. A similar view was taken in Krishna Swaroop Agarwal

of
v. Arvind Kumar, 2025 SCC OnLine SC 1458, wherein it was

observed:

rt
“13. Section 27 of the General Clauses Act, 1887, deals
with service by post:

“27. Meaning of Service by post.-Where any
[Central Act] or Regulation made after the
commencement of this Act authorizes or requires

any document to be served by post, whether the
expression “serve” or either of the expressions
“give” or “send” or any other expression is used,
then, unless a different intention appears, the

service shall be deemed to be effected by properly
addressing, pre-paying and posting by registered

post, a letter containing the document, and, unless
the contrary is proved, to have been effected at the
time at which the letter would be delivered in the

ordinary course of post”.

14. The concept of deemed service has been discussed by
this Court on various occasions. It shall be useful to refer
to some instances:

14.1 In Madan and Co. v. Wazir Jaivir Chand (1989) 1
SCC 264, which was a case concerned with the
payment of arrears of rent under the J&K Houses
and Shops Rent Control Act, 1966. The proviso to

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Section 11, which is titled “Protection of a Tenant
against Eviction”, states that unless the landlord
serves notice upon the rent becoming due, through
the Post Office under a registered cover, no amount
shall be deemed to be in arrears. Regarding service
of notice by post, it was observed that in order to

.

comply with the proviso, all that is within the
landlord’s domain to do is to post a pre-paid
registered letter containing the correct address and
nothing further. It is then presumed to be delivered

under Section 27 of the GC Act. Irrespective of
whether the addressee accepts or rejects, “there is no
difficulty, for the acceptance or refusal can be treated as

of
a service on, and receipt by the addressee.”
14.2 In the context of Section 138 of the Negotiable
Instruments Act, 1881 it was held that when the
rt
payee dispatches the notice by registered post, the
requirement under Clause (b) of the proviso of
Section 138 of the NI Act stands complied with and

the cause of action to file a complaint arises on the
expiry of that period prescribed in Clause (c) thereof.
[See: C.C. Alavi Haji v. Palapetty Mouhammed (2007)
6 SCC 555]

14.3 The findings in C.C. Alavi (supra) were followed
in Vishwabandhu v. Srikrishna (2021) 19 SCC 549. In
this case, the summons issued by the Registered AD

post was received back with endorsement “refusal”.
In accordance with Sub-Rule (5) of Order V Rule 9 of

CPC, refusal to accept delivery of the summons
would be deemed to be due service in accordance
with law. To substantiate this view, a reference was

made to the judgment referred to supra.
14.4 A similar position as in C.C. Alavi (supra) stands
adopted by this Court in various judgments of this
Court in Greater Mohali Area Development Authority v.
Manju Jain (2010) 9 SCC 157; Gujarat Electricity Board
v. Atmaram Sungomal Posani (1989) 2 SCC 602; CIT v.
V. K. Gururaj (1996) 7 SCC 275; Poonam Verma v. DDA
(2007) 13 SCC 154; Sarav Investment & Financial
Consultancy (P) Ltd. v. Lloyds Register of Shipping

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Indian Office Staff Provident Fund (2007) 14 SCC 753;
Union of India v. S.P. Singh (2008) 5 SCC 438;
Municipal Corpn., Ludhiana v. Inderjit Singh (2008) 13
SCC 506; and V.N. Bharat v. DDA (2008) 17 SCC 321.

39. In the present case, the accused has not proved that

.

he was not responsible for non-service; therefore, the learned

Courts below had rightly held that the notice was deemed to be

served upon the accused.

40. In any case, it was laid down in C.C. Allavi Haji vs.

of
Pala Pelly Mohd. 2007(6) SCC 555, that the person who claims

that he had not received the notice has to pay the amount
rt
within 15 days from the date of the receipt of the summons from

the Court and in case of failure to do so, he cannot take the

advantage of the fact that notice was not received by him. It

was observed:

“It is also to be borne in mind that the requirement of

giving notice is a clear departure from the rule of
Criminal Law, where there is no stipulation of giving

notice before filing a complaint. Any drawer who claims
that he did not receive the notice sent by post, can, within 15

days of receipt of summons from the court in respect of the
complaint under Section 138 of the Act, make payment of
the cheque amount and submit to the Court that he had
made payment within 15 days of receipt of summons (by
receiving a copy of the complaint with the summons) and,
therefore, the complaint is liable to be rejected. A person
who does not pay within 15 days of receipt of the summons
from the Court along with the copy of the complaint under
Section 138 of the Act, cannot obviously contend that there
was no proper service of notice as required under Section

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138, by ignoring statutory presumption to the contrary
under Section 27 of the G.C. Act and Section 114 of the
Evidence Act. In our view, any other interpretation of the
proviso would defeat the very object of the legislation.
As observed in Bhaskaran‘s case (supra), if the giving of
notice in the context of Clause (b) of the proviso was the

.

same as the receipt of notice, a trickster cheque drawer
would get the premium to avoid receiving the notice by
adopting different strategies and escape from the legal
consequences of Section 138 of the Act.” (Emphasis

supplied)

41. The accused did not claim that he had repaid the

of
amount to the complainant; therefore, it was duly proved on

record that the accused had failed to repay the amount despite
rt
the receipt of the notice.

42. Therefore, it was duly proved before the learned

Trial Court that the accused had issued a cheque to discharge

his legal liability, the cheque was dishonoured with an

endorsement ‘insufficient funds’, and the accused failed to pay

the money despite the deemed receipt of a notice of demand.

Hence, all the ingredients of the offence punishable under

Section 138 of the NI Act were duly satisfied, and the learned

Trial Court had rightly convicted the accused for the

commission of the offence punishable under Section 138 of the

NI Act.

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43. Learned Trial Court sentenced the accused to

undergo simple imprisonment for six months and pay

compensation of ₹11,00,000/- to the complainant. 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 is deterrent in nature. It was observed at page 203:

of
“6. The object of Section 138 of the Negotiable
Instruments Act is to infuse credibility into negotiable
instruments, including cheques, and to encourage and
rt
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 deterrent to callous issuance of negotiable
instruments such as cheques without serious intention to
honour the promise implicit in the issuance of the same.”

44. Keeping in view the deterrent nature of the

punishment, the sentence of six months cannot be said to be

excessive.

45. The learned Trial Court awarded the compensation

of ₹ 11,00,000/- on 24.12.2024. The cheque was issued on

15.02.2018. Thus, the compensation was imposed after more

than six years. 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

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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
principles that the object of Chapter XVII of NIA is not
only punitive 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

of
also well settled that there needs to be a consistent
approach towards awarding compensation, and unless
there exist special circumstances, the courts should
uniformly levy fines up to twice the cheque amount along
rt
with simple interest @ 9% p.a. [R. Vijayan v. Baby, (2012)
1 SCC 260, para 20: (2012) 1 SCC (Civ) 79: (2012) 1 SCC (Cri)

520]”

46. The interest on ₹ 5,50,000/- for 2504 days @ 9 %

p.a. would be ₹ 3,39,584/- Learned Trial Court awarded a

compensation of ₹5,50,000/- which is excessive and is reduced

to ₹ 3, 50,000/-. Thus, the accused is liable to pay ₹9,00,000/-

(₹5,50,000+₹3,50,000/-) as compensation.

47. It was submitted that the learned Trial Court could

not have awarded the sentence of imprisonment in case of

default in the payment of compensation. This submission is not

acceptable. It was laid down by the Hon’ble Supreme Court in

K.A. Abbas v. Sabu Joseph, (2010) 6 SCC 230: 2010 SCC OnLine SC

612, the Courts can impose a sentence of imprisonment in

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default of payment of compensation. It was observed at page

237:

“26. From the above line of cases, it becomes very clear

.

that a sentence of imprisonment can be granted for

default in payment of compensation awarded under
Section 357(3) CrPC. The whole purpose of the provision
is to accommodate the interests of the victims in the

criminal justice system. Sometimes the situation
becomes such that there is no purpose served by keeping
a person behind bars. Instead, directing the accused to
pay an amount of compensation to the victim or affected

of
party can ensure the delivery of total justice. Therefore,
this grant of compensation is sometimes in lieu of
sending a person to bars or in addition to a very light
sentence of imprisonment. Hence, in default of payment
rt
of this compensation, there must be a just recourse. Not
imposing a sentence of imprisonment would mean

allowing the accused to get away without paying the
compensation, and imposing another fine would be
impractical, as it would mean imposing a fine upon
another fine and therefore would not ensure proper

enforcement of the order of compensation. While passing
an order under Section 357(3), it is imperative for the
courts to look at the ability and the capacity of the

accused to pay the same amount as has been laid down by
the cases above; otherwise, the very purpose of granting

an order of compensation would stand defeated.”

48. This position was reiterated in R. Mohan v. A.K.

Vijaya Kumar, (2012) 8 SCC 721: 2012 SCC OnLine SC 486, wherein

it was observed at page 729:

“29. The idea behind directing the accused to pay
compensation to the complainant is to give him
immediate relief so as to alleviate his grievance. In terms
of Section 357(3), compensation is awarded for the loss
or injury suffered by the person due to the act of the

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accused for which he is sentenced. If merely an order
directing compensation is passed, it would be totally
ineffective. It could be an order without any deterrence or
apprehension of immediate adverse consequences in case
of its non-observance. The whole purpose of giving relief
to the complainant under Section 357(3) of the Code

.

would be frustrated if he is driven to take recourse to
Section 421 of the Code. An order under Section 357(3)
must have the potential to secure its observance.
Deterrence can only be infused into the order by

providing for a default sentence. If Section 421 of the
Code puts compensation ordered to be paid by the court
on a par with the fine so far as the mode of recovery is

of
concerned, then there is no reason why the court cannot
impose a sentence in default of payment of
compensation, as it can be done in case of default in
payment of a fine under Section 64 IPC. It is obvious that
rt
in view of this, in Vijayan [(2009) 6 SCC 652: (2009) 3 SCC
(Cri) 296], this Court stated that the abovementioned

provisions enabled the court to impose a sentence in
default of payment of compensation and rejected the
submission that the recourse can only be had to Section
421 of the Code for enforcing the order of compensation.

Pertinently, it was made clear that observations made by
this Court in Hari Singh [(1988) 4 SCC 551: 1988 SCC (Cri)
984] are as important today as they were when they were

made. The conclusion, therefore, is that the order to pay
compensation may be enforced by awarding a sentence in

default.

30. In view of the above, we find no illegality in the order
passed by the learned Magistrate and confirmed by the

Sessions Court in awarding a sentence in default of
payment of compensation. The High Court was in error in
setting aside the sentence imposed in default of payment
of compensation.

49. Thus, there is no infirmity in imposing a sentence of

imprisonment in case of default in the payment of

compensation.

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50. No other point was urged.

51. In view of the above, the present revision is partly

allowed, and the amount of compensation awarded by the

.

learned Trial Court, as affirmed by the learned Appellate Court,

is reduced to ₹9, 00,000/-. Subject to this modification, the rest

of the judgment and order are upheld.

52. The present petition stands disposed of, and so are

of
the pending applications, if any.

53. A copy of the judgment, along with records of the
rt
learned Courts below, be sent back forthwith.

(Rakesh Kainthla)
Judge
24th April 2026.

(ravinder)

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