08.01.2026 vs Nazeer Mohd on 25 February, 2026

Himachal Pradesh High Court

Reserved On: 08.01.2026 vs Nazeer Mohd on 25 February, 2026

                                             1                                    ( 2026:HHC:4187 )



          IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
                                                 Cr. Revision No.231 of 2025

                                                 Reserved on: 08.01.2026




                                                                                 .
                                                 Decided on: 25.02.2026.






    Khem Singh                                                           ....... Petitioner
                                      Versus
    Nazeer Mohd.                                                         .... Respondent




                                                      of
    Coram
                           rt
    The Hon'ble Mr Justice Rakesh Kainthla, Judge.
    Whether approved for reporting?1 Yes

    For the Petitioner:                          Mr K.S. Gill, Advocate.
    For the Respondent:                          None.



    Rakesh Kainthla, Judge

The present revision is directed against the

judgment dated 12.08.2024 passed by learned Sessions Judge,

Chamba, Distt. Chamba, H.P. (learned Appellate Court) vide

which judgment of conviction dated 18.01.2024 passed by

learned Judicial Magistrate, First Class, Tissa, District Chamba,

H.P (learned Trial Court) was upheld, the order of sentence

dated 19.01.2024 passed by the learned Trial Court was set-

aside and the matter was remitted to the learned Trial Court for

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

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2 ( 2026:HHC:4187 )

passing an appropriate sentence, and the order of sentence

dated 15.01.2025 which was passed by the learned Trial Court

after the remand. (Parties shall hereinafter be referred to in the

.

same manner as they were arrayed before the learned Trial

Court for convenience.)

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

of
revision are that the complainant filed a complaint before the

learned Trial Court against the accused for the commission of
rt
an offence punishable under Section 138 of the Negotiable

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

the accused had undertaken the construction work of the Jio

Network Tower in District Chamba. The complainant supplied

labour for the construction of the tower w.e.f. 23.02.2018 till

15.04.2018. He paid ₹2,22,000/- to the labourers. The accused

paid ₹72,000/- in cash and issued a cheque of ₹1,50,000/-

drawn at Punjab National Bank, Kasumpti, Shimla to reimburse

the money paid by the complainant. The complainant presented

the cheque to the bank, but it was dishonoured with an

endorsement “insufficient funds”. The complainant served a

notice upon the accused, asking him to repay the amount to the

complainant. Notice was duly served upon the accused, but he

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failed to repay the amount. Hence, a complaint was filed before

the learned Trial Court for taking action as per 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

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

of
not guilty and claimed to be tried.

4. The complainant examined himself (CW1) and
rt
Munish Kumar (CW2) to prove his case.

5. The accused, in his statement recorded under

Section 313 of CrPC, admitted that he had constructed the Jio

Network Tower, the complainant had provided three labourers

to him, and he had engaged them w.e.f. 23.02.2018 till

15.04.2018. He denied the rest of the complainant’s case. He

asserted that an agreement was executed between him and the

complainant. He paid ₹50,000/- in cash to the complainant. He

had demanded 10-15 labourers from the complainant, as a

minimum of 10 labourers were required to carry out the work.

The complainant sent 3-4 labourers. The complainant

demanded ₹50,000/- for the supply of the remaining labour. He

paid ₹50,000/- to the complainant through the bank account.

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The labour was supplied, who worked for one month, but

thereafter, the supply was stopped. He paid ₹72,000/- in cash

to the complainant and gave a blank security cheque to the

.

complainant. The complainant failed to pay the money to the

labourers, and they filed a case before the Labour Court at

Chamba. Bhag Singh paid money to them. He examined Divesh

Mandala (DW1), Bhag Singh (DW2) and Rishab Chaudhary

of
(DW3) to prove his defence.

6.
rt
Learned Trial Court held that the issuance of the

cheque was not disputed. A presumption arose that the cheque

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

was highly improbable that a blank security cheque would have

been issued after the execution of the work. The plea taken by

the accused in the Court was contrary to the plea taken by him

in his application filed under Section 145(2) of the NI Act. Even a

blank security cheque would give rise to the liability under

Section 138 of the NI Act. The cheque was dishonoured with an

endorsement “insufficient funds”, and the accused failed to

repay the amount despite the receipt of a valid notice of

demand. All the ingredients of commission of an offence

punishable under Section 138 of the NI Act were satisfied.

Hence, the learned Trial Court convicted the accused of the

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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 ₹2,30,000/- and, in default, to undergo

.

simple imprisonment for one month. It was ordered that the

amount of fine, if realised, be disbursed to the complainant as

compensation.

of

7. Being aggrieved by the judgment and order passed

by the learned Trial Court, the accused filed an appeal, which
rt
was decided by the learned Sessions Judge, Chamba (learned

Appellate Court). Learned Appellate Court concurred with the

findings recorded by the learned Trial Court that the accused

had not disputed the issuance of the cheque, and a presumption

arose that the cheque was issued to discharge the debt/liability.

The evidence of the accused was not sufficient to rebut the

presumption. The cheque was dishonoured with an

endorsement “insufficient funds”. Notice was duly served upon

the accused, and he failed to repay the amount despite the

receipt of a valid notice of demand. All the ingredients of the

commission of an offence punishable under Section 138 of the

NI Act were duly satisfied. Learned Trial Court had rightly

imposed the sentence of one year, but erred in imposing the

fine of ₹2,30,000/- because the learned Magistrate was not

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competent to impose a fine exceeding ₹10,000/- as per Section

29 of the Cr.P.C. Hence, the matter was remitted to the learned

Trial Court for imposing an appropriate fine.

.

8. Learned Trial Court ordered the payment of

compensation of ₹2,00,000/- and, in default of payment of

compensation, to undergo further imprisonment for one month

of
vide order dated 15.01.2025.

9. Being aggrieved by the judgments and order passed
rt
by the learned Courts below, the accused has filed the present

revision asserting that the learned Courts below erred in

appreciating the material placed before them. A written

agreement was executed between the parties, which was

ignored by the learned Courts below. As per the complaint, the

complainant had provided labour for the construction of the Jio

tower; the accused had no liability towards the complainant but

he had a liability towards the labourers as per the complaint.

The payment was made by Bhag Singh to the labourers before

the Labour Court, and the complainant could not have sought

the payment from the accused. The accused had filed an

application under Section 391 of the Cr. P.C., which was not

decided by the learned Appellate Court. Therefore, it was

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prayed that the present revision be allowed and the judgments

and order passed by the learned Courts below be set-aside.

10. I have heard Mr K.S. Gill, learned counsel for the

.

petitioner/accused. None appeared on behalf of the respondent/

complainant, even though the complainant was served. Hence,

none could be heard on behalf of the respondent/complainant.

of

11. Mr K.S. Gill, learned counsel for the

petitioner/accused, submitted that the learned Appellate Court
rt
erred in disposing of the appeal without deciding the

application filed under Section 391 of Cr.P.C. Learned Appellate

Court could not have confirmed the conviction and remitted the

matter to the learned Trial Court for passing the sentence.

Therefore, he prayed that the present revision be allowed and

the judgment passed by the learned Appellate Court be set-

aside.

12. I have given considerable thought to the

submissions made at the bar and have gone through the records

carefully.

13. 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

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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

of
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
rt
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.

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:

“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.

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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

of
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
rt
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 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

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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:

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

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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
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
rt
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 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.”

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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

of
the Revisional Court to re-analyse and re-interpret the
evidence on record.

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

rt
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.”

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

parameters laid down by the Hon’ble Supreme Court

18. Learned Appellate Court confirmed the conviction

and remitted the matter to the learned Trial Court for passing

an appropriate sentence of fine. This was not permissible. It was

laid down in P. Mazher v. State of A.P. , 2003 SCC OnLine AP

1232: 2003 Cri LJ 3269 that the Appellate Court does not have

the jurisdiction to confirm the appeal and remit the matter to

the learned Trial Court for passing the sentence. It was observed

at page 3269: –

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“3. Section 386, Cr. P.C. deals with the powers of the
Appellate Court. As the appeal was filed before the
learned Metropolitan Sessions Judge from a conviction,
the relevant provision is Section 386(b), Cr. P.C. It reads
as follows:

.

“386 (b): in an appeal from a conviction–

(i) reverse the finding and sentence and
acquit or discharge the accused, or order him
to be re-tried by a Court of competent

jurisdiction subordinate to such Appellate
Court or committed for trial; or

of

(ii) alter the finding, maintaining the
sentence, or

(iii) with or without altering the finding,
rt alter the nature or the extent, or the nature
and extent, of the sentence, but not so as to
enhance the same.”

4. A reading of the above provision makes it clear that the
Appellate Judge has the option to reverse the finding and
sentence and acquit the accused of the offence of which
he was charged. The Appellate Court is also at liberty to

order a retrial of the accused by a Court of competent
jurisdiction subordinate to such Appellate Court or
committed for trial. The Appellate Court is also at liberty

to alter the finding and maintain the sentence imposed
by the trial Court. It has also got the opinion with or

without altering the finding, altering the nature and
extent of the sentence. However, it has no power to
enhance the sentence given by the trial Court. Section

386(b), Cr. P.C., does not entitle the appellate Judge in an
appeal from conviction to confirm the conviction and at
the same time remit back the case back to the trial Court
for consideration regarding the sentence alone. In my
considered opinion, the learned Metropolitan Sessions
Judge has committed an error in remitting the case to the
trial Court regarding the sentence alone after confirming
the conviction imposed by the trial Court.

5. I have come across some reported decisions to support
the view taken by me regarding the powers of the
appellate Court while dealing with an appeal from a

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conviction given by the trial Court. The Madras High
Court, in a decision reported in Roja Kamalam v. State,
AIR 1971 Madras 41: 1971 Cri LJ 61, held that the Appellate
Court cannot remand the case for passing a proper
sentence, and before ordering retrial, the conviction and

.

sentence must be set aside. In that case, the trial Court

convicted the accused of the offence under Section 380,
IPC, and sentenced him to suffer rigorous imprisonment
for three months. In the appeal, the Sub-Divisional

Magistrate confirmed the conviction and remanded the
case to the Sub-Magistrate, observing that the matter
should be dealt with under the provisions of the

of
Probation of Offenders Act if the age was found to be 20.
The Madras High Court held categorically that there can
be no remand of a case for the purpose of passing a
proper sentence.

rt

6. There is a judgment of the Calcutta High Court
reported in State v. Pulish Ghosh, 1973 Cri LJ 510. In a

food adulteration case, acting on the plea of guilty made
by the accused, the Magistrate convicted the accused and
sentenced him to undergo rigorous imprisonment for six

months and pay a fine of Rs. 10,000.00. The accused
preferred an appeal before the Sessions Judge. The
Sessions Judge upheld the conviction and set aside the

sentence and sent back the record to the Magistrate for
imposing sentence after examination of the accused

under Section 342. Cr. P.C. (Old). Thereafter, the learned
Magistrate imposed a sentence of rigorous
imprisonment for five months and a fine of Rs. 900.00.

Again, the accused preferred an appeal before the
Sessions Court. The second appeal came up before
another learned Sessions Judge other than the Sessions
Judge who remitted the earlier case to the Magistrate.
The later Sessions Judge made a reference under Section
438, Cr. P.C. (Old) to the High Court. The High Court held
that the previous Sessions Judge made a peculiar order;
he upheld the conviction, set aside the sentence and sent
the record to the Magistrate for imposition of sentence
after examining the accused under Section 342 of the
Code. The High Court held that if the Sessions Judge
thought that the sentence should be reduced, he could

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himself reduce the sentence. It held that the order that he
made could not have been made under the powers which
he, as the Appellate Court, had under Section 423 of the
Old Code. It also observed that he should have realised
that since he was maintaining the conviction, there was

.

no further scope for the learned Magistrate to examine

the accused under Section 342, Cr. P.C. The High Court
set aside the order of the Sessions Judge.

7. There is also a similar judgment of the Delhi High

Court reported in Mukand Lal v. State, 1979 Cri LJ 105. It
was held that the order of the Sessions Judge remanding
the case to the lower Court to offer an opportunity of

of
hearing on the question of sentence is irregular.

8. There is a judgment of the Apex Court reported in K.
Bhaskaran v. Sankaran Vaidhyan Balan, 1999 Cri LJ
rt
4606: (1999) 7 SCC 510: AIR 1999 SC 3762. The principle
of law relating to sentences to be imposed for the offence
under Section 138, Negotiable Instruments Act, read with

Sections 29(2) and 357(3) of Cr.P.C., is laid down in the
above decision. The Supreme Court held that a Judicial
Magistrate of First Class could not impose a fine

exceeding Rs. 5,000.00, besides the imprisonment, and
the High Court, while convicting the accused in an appeal
in the same case, could not impose a sentence or fine

exceeding the said limit. It held that the Magistrate can
alleviate the grievance of the complainant by making

resort to Section 357(3) of the Code, no limit is
mentioned, and a Magistrate can award any sum as
compensation. It held while fixing the quantum of such

compensation, the Magistrate has to consider what could
be the reasonable amount of compensation payable to
the complainant and thus even if the trial for cheque
dishonour was before a Court of Magistrate of First Class
in respect of a cheque which covers an amount exceeding
Rs. 5,000.00, the Court has power to award
compensation to be paid to the complainant.

9. In the present case, the order of the learned
Metropolitan Sessions Judge confirming the conviction
and at the same time setting aside the sentence and
remitting the case to the Magistrate for sentence alone is

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bad in law and is liable to be set aside. Therefore, the
appeal in Criminal Appeal No. 68 of 1999 is to be
remitted back to the learned Metropolitan Sessions Judge
for fresh disposal in accordance with law. The
confirmation of the conviction made by the learned

.

Metropolitan Sessions Judge, as well as the order

remitting the case back to the Magistrate regarding the
sentence, are set aside. The learned Metropolitan
Sessions Judge is directed to consider the appeal afresh

on the merits, notwithstanding any of the observations
made by the said Court in the appeal.”

of

19. Thus, the judgment passed by the learned Appellate

Court cannot be sustained on this short ground alone.

20.
rt
The record of the learned Appellate Court shows that

the accused had filed an application under Section 391 of the

CrPC for taking additional evidence. This application was taken

on record by the learned Appellate Court on 27.06.2024. A reply

to the application was filed on 09.07.2024, on which date, the

arguments were heard, and the appeal was dismissed on

12.08.2024. However, the application filed under Section 391 of

Cr.P.C was not disposed of.

21. The Hon’ble Supreme Court also held in Namdeo

versus Tukaram Civil Appeal No. 5185 of 2008 decided on

18.08.2008, that where an application under Order 41 Rule 27 of

CPC was not properly disposed of, the judgment passed by the

First Appellate Court is bad. It was observed:

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17 ( 2026:HHC:4187 )

“We find that the first appellate Court did not reject the
application under Order 41 Rule 27 CPC, nor did it
assign any reasons while recording that only
production of the documents was allowed. We are of
the view that the procedure adopted was incorrect. The

.

first appellate Court ought to have passed an order in

respect of the application under Order 41 Rule 27 CPC,
either allowing or rejecting the application. The first
appellate Court has considered the application as if it

were one under Order 13 Rule 1 CPC and not under Order
41 Rule 27 CPC. The High Court ought to have therefore
interfered in the matter by raising an appropriate

of
question of law. It failed to do so. The judgments,
therefore, call for interference.”

22. Similarly, it was held in Jatinder Singh v. Mehar
rt
Singh, (2009) 17 SCC 465= 2008 SCC OnLine SC 1425 that

where the High Court had failed to decide the application for

leading additional evidence, the matter is required to be

remitted to the High Court. It was observed:

“4. While deciding the second appeal, however, the High
Court had failed to take notice of the application under

Order 41 Rule 27 of the Code of Civil Procedure and
decide whether additional evidence could be permitted
to be admitted into evidence. In our view, when an

application for acceptance of additional evidence under
Order 41 Rule 27 of the Code of Civil Procedure was filed
by the appellants, it was the duty of the High Court to
deal with the same on the merits. That being the
admitted position, we have no other alternative but to
set aside the judgment of the High Court and remit the
appeal back to it for a decision afresh in the second
appeal, along with the application for acceptance of
additional evidence in accordance with the law.”

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23. A similar view was taken by this court in Mani Devi

v. Suresh Chand, 2021 SCC OnLine HP 7126= (2021) 2 Latest

HLJ 874, wherein it was observed:

.

“12. A perusal of the “zimni” order dated 31.05.2007 re-
vealed that the plaintiff on the said date had filed an ap-
plication under Order 41 Rule 27 read with Section 151 of

the Code of Civil Procedure for adducing additional evi-
dence. On 20.06.2007, a reply on behalf of the respon-
dents was filed to the said application and the main ap-

of
peal was ordered to be listed for arguments along with
the application under Order 41 Rule 27 of the Code of Civil
Procedure. Thereafter, the appeal came to be adjourned
on various occasions due to one or other reasons. Finally,
rt
the appeal came to be decided on 05.11.2007. The record
further reveals that the application under Order 41 Rule

27 read with Section 151 of the Code of Civil Procedure
filed by the plaintiff before the lower Appellate Court re-
mained pending throughout and was not decided either

separately or along with the appeal.

13. There is no absolute right granted by the Code of Civil
Procedure to adduce additional evidence at the appellate

stage. Nonetheless, the Court hearing an appeal has the
power to allow a party to adduce additional evidence,

subject, however, to the interdict provided in Order 41
Rule 27 of the Code of Civil Procedure. The allowance of
the prayer to adduce additional evidence, in the given

circumstances of the case, may have the effect of chang-
ing the outcome of the case.

14. Undisputedly, the plaintiff had the right to invite a
decision, on her prayer to adduce additional evidence,
from the Lower Appellate Court. The absence of adjudi-
cation on application under Order 41 Rule 27 of the Code
of Civil Procedure amounts to the refusal of the exercise
of jurisdiction vested in the Lower Appellate Court, which
has the potential to cause prejudice to the plaintiff.”

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19 ( 2026:HHC:4187 )

24. This position was reiterated in Satish Chand Surana

versus Raj Kumar Meshram [(2022) 3 CivCC 191 = (2022) 1

RCR(Civil) 598, wherein it was observed:

.

“7. Learned counsel for the appellant-plaintiff
submits that the High Court has dismissed the first
appeal of the plaintiff without deciding the

application filed by him under Order XLI Rule 27 of
the CPC, seeking permission to adduce additional
evidence. Learned Counsel further submits that the

of
appellant has a good case on the merits.

8. It is well-settled that, ordinarily, the Appellate
Court should not travel beyond the record of the lower
rt
court. Section 107 of the CPC carves out an exception
to this general rule, enabling the Appellate Court to

take additional evidence subject to the conditions
prescribed in Order 41 Rule 27 of the CPC. Thus, grant
or refusal of the opportunity for the production of
additional evidence at the appellate stage is within the

discretion of the appellate court. Dismissal of the
main appeal without deciding the application for
additional evidence would result in a miscarriage of

justice. The First Appellate Court, being the last court
of facts and evidence, should permit the production of

additional evidence where the explanation furnished
by the party is satisfactory, and the documents in
question are vital to establish the case.

9. It is also necessary to observe here that the
application for permission to file additional evidence
should contain the list of documents giving full
particulars thereof, and copies sought to be filed as
additional evidence should be served on the other
side. However, the High Court cannot completely
ignore the application filed by the appellant and
pronounce the judgment. If the appellant makes out a
case for allowing the application, the material
produced along with the application has to be

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20 ( 2026:HHC:4187 )

considered at the time of final disposal of the appeal
in accordance with the law.

10. In the instant appeal, it is clear that the High Court
has proceeded to dismiss the appeal without considering

.

the application filed by the appellant-plaintiff. In our

view, the High Court has to consider the matter afresh in
the light of the observations made above.”

25. Similar consideration will apply to the Criminal

Courts as well; therefore, the judgment passed by the learned

of
Appellate Court without disposing of the application filed under

Section 391 Cr.P.C. cannot be sustained.

rt

26. Learned Appellate Court held that the learned

Magistrate had no jurisdiction to impose a fine in excess of

₹10,000/-. Learned Appellate Court failed to notice Section 143

of the NI Act, which empowers a Magistrate to impose a fine

exceeding ₹5,000/-. It was laid down by the Hon’ble Supreme

Court in R. Vijayan v. Baby, (2012) 1 SCC 260: 2011 SCC OnLine

SC 1363 that the Magistrate is competent to impose a fine

exceeding ₹5,000/- after insertion of Section 143 of the NI Act.

It was observed at page 265:

“13. It is of some interest to note, though it may not be of
any assistance in this case, that the difficulty caused by
the ceiling imposed by Section 29(2) of the Code has been
subsequently solved by the insertion of Section 143 in the
Act (by Amendment Act 55 of 2002) with effect from 6-
2-2003. Section 143(1) provides that, notwithstanding

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21 ( 2026:HHC:4187 )

anything contained in the Code, all offences under
Chapter XVII of the Act should be tried by a Judicial
Magistrate of the First Class or by a Metropolitan
Magistrate and the provisions of Sections 262 to 265 of
the Code (relating to summary trials) shall, as far as may

.

be, apply to such trials. The proviso thereto provides that

it shall be lawful for the Magistrate to pass a sentence of
imprisonment for a term extending one year and an
amount of fine exceeding Rs 5000, in case of conviction

in a summary trial under that section. In view of the
conferment of such special power and jurisdiction upon
the First Class Magistrate, the ceiling as to the amount of

of
fine stipulated in Section 29(2) of the Code is removed.
Consequently, in regard to any prosecution for offences
punishable under Section 138 of the Act, a First-Class
Magistrate may impose a fine exceeding Rs 5000, the
rt
ceiling being twice the amount of the cheque.”

27. It was held by the Delhi High Court in Bharti Sahni v.

Vikas Sehrawat, 2025 SCC OnLine Del 7686 , that a Magistrate

has jurisdiction to impose a fine exceeding ₹10,000/- in the

proceedings under Section 138 of the NI Act. It was observed:

“34. In the end, a Legal objection has been taken that un-

der Section 29 of the Cr. P.C., the First-Class Magistrate,
has the power to impose a fine of a maximum of Rs.
10,000/-. Therefore, the fine of Rs. 10,65,000/- as im-

posed by the Ld. Metropolitan Magistrate is illegal and
against the mandate of law.

35. In this context, it may be observed that the trial has
been held under a Special Act i.e. Negotiable Instruments
Act wherein Section 138 itself provides that in case the
offence is proved under Section 138, the person convicted
may be punished with an imprisonment of a term, which
may extend to two years and the fine which may extend
to twice the amount of the cheque or with both. This be-
ing a conviction in a trial under the Special Act, it would
prevail over the general law as contained in Cr. P.C. The

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22 ( 2026:HHC:4187 )

cheque amount was Rs. 6,00,000/- and the jurisdiction
of the Ld. Metropolitan Magistrate to impose the fine,
was double the cheque amount. Therefore, the fine im-
posed in the sum of Rs. 10,65,000/- is within the juris-
diction of the learned Metropolitan Magistrate.”

.

28. A similar view was taken by the M.P. High Court in

Sitaram v. Kanhaiyalal, 2022 SCC OnLine MP 5478: ILR 2022 MP

1480, wherein it was observed at page 1483: –

of
“7. In the Negotiable Instruments Act, as per provision of
Section 138, a Magistrate can punish the accused with
imprisonment for a term which may extend to two years
or with a fine which may extend to twice the amount of
rt
the cheque or with both. It is true that, as per provisions
of Section 29 of the Cr. P.C. Judicial Magistrate First Class

cannot impose fine of more than Rs. 10,000/-, but in this
context amendment of Section 143 dated 6.2.2003 is
pertinent by which a provision has been made that in
case of any conviction in a summary trial, it shall be

lawful for the Magistrate to pass a sentence of
imprisonment for a term not exceeding one year and an
amount of fine exceeding five thousand rupees. In this

regard, the judgment pronounced by the Hon’ble
Supreme Court in the case of R. Vijayan v. Baby, (2012) 1

SCC 260, is helpful. Relevant portion of the aforesaid
judgment is reproduced hereinbelow:–

“13 In view of the conferment of such special power

and jurisdiction upon the First-Class Magistrate, the
ceiling as to the amount of fine stipulated in section
29(2) of the Code is removed. Consequently, in regard
to any prosecution for offences punishable under
section 138 of the Act, a First-Class Magistrate may
impose a fine exceeding Rs. 5000/-, the ceiling being
twice the amount of the cheque.”

8. It is true that in Section 143(1) of the Negotiable
Instruments Act, another proviso has been added that if
summary trial is not possible, the accused will be tried by
way of summons trial and the Magistrate will rehear the

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23 ( 2026:HHC:4187 )

case in the manner provided by said Code. But in the
aforesaid provision, there is no bar that if a trial
is conducted in a summons manner, the Magistrate
cannot impose the fine twice the cheque amount. In this
regard, the order of the Chhattisgarh High Court

.

in Atharva Agro Chemical Pvt. Ltd. v. Gopal Chand

Barik, decided on 4.2.2021 in Criminal Misc. Petition No.
357/2013 is relevant, whereby Chhattisgarh High Court,
relying on the judgment of the Apex Court in the case

of R. Vijayan (supra), has held as under: —

“17. In the matter of R. Vijayan v. Baby, (2012) 1 SCC
260, their Lordships of the Supreme Court culled out

of
the following principle contained in the provisions of
Chapter-XVII of the Act, which states as under: —

rt “(i) The provision for levy of fine which is
linked to the cheque amount and may extend to
twice the amount of the cheque (Section 138),
thereby rendering Section 357(3) virtually

infructuous insofar as cheque dishonour cases
are concerned.”

Their Lordships, in the later part of judgment, while

considering the intention of the legislature for
enacting Section 138 of the NI Act, have held as under:

—

“17. The apparent intention is to ensure that not
only the offender is punished, but also ensure that

the complainant invariably receives the amount of
the cheque by way of compensation under Section
357(1)(b) of the Code. Though a complaint under

Section 138 of the Act is in regard to criminal
liability for the offence of dishonouring the cheque
and not for the recovery of the cheque amount
(which strictly speaking, has to be enforced by a
civil suit), in practice once the
criminal complaint is lodged under Section 138 of
the Act, a civil suit is seldom filed to recover the
amount of the cheque. This is because of the
provision enabling the court to levy a fine linked to
the cheque amount and the usual direction in such
cases is for payment as compensation, the cheque

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24 ( 2026:HHC:4187 )

amount, as loss incurred by the complainant on
account of dishonour of cheque, under Section
357(1)(b) of the Code and the provision for
compounding the offences under Section 138 of the
Act. Most of the cases (except those where liability

.

is denied) get compounded at one stage or another

by payment of the cheque amount with or without
interest. Even where the offence is not
compounded, the courts tend to direct payment of

compensation equal to the cheque amount (or even
something more towards interest) by levying a fine
commensurate with the cheque amount. A stage

of
has reached when most of the complainants, in
particular the financing institutions (particularly
private financiers), view the proceedings under
Section 138 of the Act as a proceeding for the
rt
recovery of the cheque amount, the punishment of
the drawer of the cheque for the offence of

dishonour becoming secondary.

18. Having reached that stage, if some Magistrates
go by the traditional view that the criminal

proceedings are for imposing punishment on the
accused, either imprisonment or fine or both, and
there is no need to compensate the complainant,

particularly if the complainant is not a “victim” in
the real sense, but is a well-to-do financier or

financing institution, difficulties and
complications arise. In those cases where the
discretion to direct payment of compensation is

not exercised, it causes considerable difficulty to
the complainant, as, invariably, by the time the
criminal case is decided, the limitation for filing
civil cases would have expired. As the provisions of
Chapter XVII of the Act strongly lean towards grant
of reimbursement of the loss by way of
compensation, the courts should, unless there are
special circumstances, in all cases of conviction,
uniformly exercise the power to levy fine up to
twice the cheque amount (keeping in view the
cheque amount and the simple interest thereon at
9% per annum as the reasonable quantum of loss)

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25 ( 2026:HHC:4187 )

and direct payment of such amount as
compensation. Directions to pay compensation by
way of restitution in regard to the loss on account
of dishonour of the cheque should be practical and
realistic, which would mean not only the payment

.

of the cheque amount but interest thereon at a

reasonable rate. Uniformity and consistency in
deciding similar cases by different courts not only
increase the credibility of the cheque as a

negotiable instrument but also the credibility of
the courts of justice

19. We are conscious of the fact that proceedings

of
under Section 138 of the Act cannot be treated as
civil suits for recovery of the cheque amount with
interest. We are also conscious of the fact that
rt
compensation awarded under Section 357(1)(b) is
not intended to be an elaborate exercise taking
note of interest, etc. Our observations are

necessitated due to the need to have uniformity
and consistency in decision-making. In the same
type of cheque dishonour cases, after convicting

the accused, if some courts grant compensation
and if some other courts do not grant
compensation, the inconsistency, though perfectly

acceptable in the eyes of the law, will give rise to a
certain amount of uncertainty in the minds

of litigants about the functioning of courts.
Citizens will not be able to arrange or regulate
their affairs in a proper manner, as they will not

know whether they should simultaneously file a
civil suit or not. The problem is aggravated having
regard to the fact that, in spite of Section 143(3) of
the Act requiring the complaints in regard to
cheque dishonour cases under Section 138 of the
Act to be concluded within six months from the
date of the filing of the complaint, such cases
seldom reach finality before three or four years, let
alone six months. These cases give rise to
complications where civil suits have not been filed
within three years on account of the pendency of
the criminal cases. While it is not the duty of

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criminal courts to ensure that successful
complainants get the cheque amount also, it is
their duty to have uniformity and consistency with
other courts dealing with similar cases.”

18. In the matter of Bir Singh v. Mukesh Kumar,

.

(2019) 4 SCC 197, the Supreme Court, following the

principle of law laid down in R. Vijayan (supra), held
that Section 138 of the NI Act is both punitive as well
as compensatory and restitutive, and also provides for

enforcement of civil liability for realisation of cheque
amount. It was held as under:–

“25. In R. Vijayan v. Baby, (2012) 1 SCC 260, this

of
Court observed that the object of Chapter XVII of
the Negotiable Instruments Act is both punitive as
also compensatory and restitutive. It provides a
rt
single forum and a single proceeding for the
enforcement of criminal liability by reason of
dishonour of a cheque and for the enforcement of

the civil liability for realisation of the cheque
amount, thereby obviating the need for the
creditor to move two different fora for relief. This

Court expressed its anguish that some Magistrates
went by the traditional view, that
the criminal proceedings were for imposing

punishment and did not exercise discretion to
direct payment of compensation, causing

considerable difficulty to the complainant, as
invariably the limitation for filing civil cases would
expire by the time the criminal case was decided.”

Thereafter, while granting the appeal and confirming
the conviction of the respondent therein, their
Lordships of the Supreme Court sentenced him only
to a fine, which was enhanced to Rs. 16 lakhs and
further directed the same to be paid as compensation
to the complainant. It was held as under: —

“40. The appeals are allowed. The judgment and
order of the High Court are set aside. The
conviction of the respondent under Section 138 of
the Negotiable Instruments Act is confirmed.
However, the respondent-accused is sentenced

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only to a fine, which is enhanced to Rs. 16 lakhs
and shall be paid as compensation to the appellant
complainant. The fine shall be deposited in the
trial court within eight weeks from the date, failing
which the sentence of imprisonment of one year as

.

imposed by the trial court shall revive. There shall

be no order as to costs.”

19. Thus, it is quite vivid that under Section 138 of the
NI Act, Criminal Court is competent to levy fine up to

twice the cheque amount and direct payment of such
amount as compensation by way of restitution in
regard to the loss on account of dishonour of cheque

of
under Section 357(1)(b) of the CrPC and as such, the
power under Section 357(3) of the CrPC cannot be
exercised by Criminal Court in the cheque dishonour

29.
rt
cases.”

Therefore, the learned Appellate Court erred in

holding that the learned Magistrate could not have imposed a

fine exceeding the limit prescribed under Section 29 of the

Cr.P.C.

30. In view of the above, the present revision is allowed

and judgment dated 12.08.2024 passed by learned Sessions

Judge, Chamba is ordered to be set aside, and the matter is

remitted to learned Sessions Judge, Chamba, who shall decide

the application filed under Section 391 of Cr.P.C and proceed to

dispose of the matter thereafter, as per the law.

31. Parties through their respective counsel are directed

to appear before learned Appellate Court on 24 .03.2026.

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28 ( 2026:HHC:4187 )

32. Records of the learned Courts below be sent back

forthwith, along with a copy of this judgment.

.

(Rakesh Kainthla)
Judge

25 February, 2026.

(Yogesh)

of
rt

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