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    Himachal Pradesh High Court

    Reserved On: 11.3.2026 vs Of on 23 March, 2026

                                                                                       2026:HHC:8213
    
    
    
    
         IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
    
                                                   Cr. Revision No. 642 of 2025
    
    
    
    
                                                                                       .
                                                   Reserved on: 11.3.2026
    
    
    
    
    
                                                   Date of Decision: 23.3.2026.
    
    
    
    
    
        Vijay Kumar                                                          ...Petitioner
                                               Versus
    
    
    
    
                                                          of
        M/s New Shilpi Jewellers through its Partner Pankaj Chauhan
                                                                             ...Respondent
    
        Coram
                                rt
        Hon'ble Mr Justice Rakesh Kainthla, Judge.
    
        Whether approved for reporting?1 No.
    
        For the Petitioner                 :         Mr Jeevan Kumar, Advocate.
        For the Respondent                 :         None.
    
    
    
        Rakesh Kainthla, Judge
    

    The present revision is directed against the judgment

    dated 16.9.2025 passed by learned Additional Sessions Judge-1,

    SPONSORED

    Kangra at Dharamshala, District Kangra, H.P. (learned Appellate

    Court), vide which the judgment of conviction and order of

    sentence dated 26.5.2025, passed by learned Chief Judicial

    Magistrate, Kangra at Dharamshala, District Kangra, HP

    (learned Trial Court) were upheld (Parties shall hereinafter be

    1
    Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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    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

    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

    of
    Instruments Act (NI Act). It was asserted that the complainant is

    a partner of M/s Shilpi Jewellers. The accused purchased gold
    rt
    worth ₹1,84,000/- from the complainant on 8.11.2019 vide

    Invoice No. 1227. He issued a cheque of ₹1,84,000/- (Ex.C2),

    drawn on State Bank of India, to discharge his liability. The

    complainant presented the cheque to his bank, but it was

    dishonoured with an endorsement ‘insufficient funds’ vide

    memo (Ex.C4). The complainant issued a legal notice (Ex.C5)

    asking the accused to repay the amount within 15 days of the

    receipt of the notice. The notice was served upon the accused,

    and an acknowledgment (Ex.C7) was received by him. The

    accused failed to repay the amount; hence, the complaint was

    filed before the learned Trial Court for taking action as per law.

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    3. The 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

    of
    his complaint.

    5.
    rt
    The accused, in his statement recorded under Section

    313 of Cr.P.C., denied the complainant’s case. He asserted that

    the cheque was issued as security, and it was misused by the

    complainant. He did not produce any evidence in defence.

    6. Learned Trial Court held that the issuance of the

    cheque was not disputed. The complainant admitted in the

    cross-examination that the accused had paid ₹1,76,000/-

    during the pendency of the complaint. The complainant

    produced the details (Ex.C8), which showed that the liability of

    ₹5,05,141/- was due. Therefore, the payment of the amount

    during the pendency of the complaint would not help the

    accused. All the ingredients of the commission of an offence

    punishable under Section 138 of the NI Act were duly satisfied.

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    Hence, the learned Trial Court convicted the accused of the

    commission of an offence punishable under Section 138 of the NI

    .

    Act and sentenced him to undergo simple imprisonment for one

    year, pay a fine of ₹2,60,000/- and in default of payment of the

    fine to undergo further simple imprisonment for one month.

    7. Being aggrieved by the judgment and order passed by

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

    decided by the learned Additional Sessions Judge (I), Kangra at
    rt
    Dharamshala, District Kangra, HP (learned Appellate Court).

    The learned Appellate Court concurred with the findings

    recorded by the learned Trial Court that the issuance of the

    cheque was not disputed. A presumption would arise that the

    cheque was issued for consideration to discharge the

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

    amount of ₹1,76,000/- deposited by the accused during the

    pendency of the complaint was adjusted by the complainant

    towards the overall liability, and a sum of ₹5,05,141/- was due as

    per the details (Ex.C8). The cheque was dishonoured with an

    endorsement ‘insufficient funds’. The notice was duly served

    upon the accused, and he failed to repay the amount. The

    sentence imposed by the learned Trial Court was adequate, and

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    no interference 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

    revision, asserting that the learned Courts below failed to

    properly appreciate the material placed before them. The memo

    of
    of dishonour of the cheque was received by the complainant on

    15.11.2019, and the legal notice was issued on 3.12.2019. The
    rt
    notice was served upon the accused on 4.12.2019. The complaint

    was filed on 18.1.2020, which was beyond the period of

    limitation. The cheque bearing Serial No.651308 was the subject

    matter of another case bearing No.21-3/2020 filed before the

    learned Chief Judicial Magistrate, Kangra and is the subject

    matter in another revision. The same cheque cannot be issued

    on two different occasions and for different amounts. An

    amount of ₹1,76,000/- was paid during the pendency of the

    proceedings. This payment was ignored by the learned Courts

    below. Therefore, it was prayed that the present revision be

    allowed and the judgments and order passed by the learned

    Courts below be set aside.

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    9. Mr Jeevan Kumar, learned Legal Aid Counsel for the

    petitioner/accused, submitted that the learned Courts below

    .

    erred in appreciating the material placed before them. The

    complaint was filed on behalf of M/s New Shilpi Jewellers, which

    is stated to be a partner firm; however, no registration

    certificate of the victim was produced on record, and a

    of
    complaint by an unregistered firm was not maintainable. The

    complaint was barred by limitation. An amount of ₹1,76,000/-

    rt
    was paid during the pendency of the complaint. This amount

    was wrongly excluded by the learned Courts below. Therefore,

    he prayed that the present revision be allowed and judgments

    and order passed by learned Courts below be set aside.

    10. I have given considerable thought to the submissions

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

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

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

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

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

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

    207-

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    “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

    of
    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
    rt
    jurisdiction or law. There has to be a well-founded error
    that 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.

    12. 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.

    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

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    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

    of
    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
    rt
    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 aforestated. Even the framing
    of the charge is a much-advanced stage in the
    proceedings under CrPC.”

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    13. 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

    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
    rt
    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
    aforesaid standpoint, we have no hesitation in
    concluding that the High Court exceeded its

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    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-

    of
    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)
    rt”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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    14. 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.
    Sauermilch Design and Handels GmbH
    , (2008) 14 SCC 457, it
    rt
    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.”

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

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

    “27. It is well settled that in exercise of revisional

    jurisdiction, the High Court does not, in the absence of
    perversity, upset concurrent factual findings [See: Bir
    Singh
    (supra)]. This Court is of the view that it is not for

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

    28. Consequently, this Court is of the view that in the
    absence of perversity, it was not open to the High Court in
    the present case, in revisional jurisdiction, to upset the

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    concurrent findings of the Trial Court and the Sessions
    Court.

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

    .

    parameters laid down by the Hon’ble Supreme Court.

    17. It was submitted that no proof of the registration of

    the firm was filed, and the complainant has to be treated as an

    of
    unregistered firm. A complaint filed by an unregistered firm is

    not maintainable. This submission cannot be accepted. The law
    rt
    regarding the filing of the complaint by the unregistered firm

    was discussed by this Court elaborately in Uttam Traders Ranghri

    v. Tule Ram, 2018 SCC OnLine HP 3407, where the divergent views

    of various High Courts were noticed by the Court and it was held

    that Section 69(2) of the Indian Partnership Act only bars the

    civil proceedings for the recovery of money by an unregistered

    firm, and not the proceedings under Section 138 of NI Act. It was

    observed: –

    “33. From the aforesaid discussion, it would be noticed
    that, save and except an isolated authority of the Division
    Bench of Andhra Pradesh High Court in Amit Desai’s
    case (supra), all other High Courts in the country have
    categorically held that the proceedings under Section 138
    of the N.I. Act, are not recovery proceedings.

    34. Therefore, even an unregistered Partnership firm can
    maintain a complaint under Section 138 of the Act.

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    35. That apart, it would further be noticed that the view
    taken by the Andhra Pradesh High Court, in fact, is con-
    trary to the ratio of the judgment laid down by the
    Hon’ble Supreme Court in R. Vijayan’s case (supra).

    .

    Therefore, in the given facts and circumstances, I am of
    the considered view that the criminal prosecution initi-
    ated by the complainant against the respondent is not hit

    by Section 69 of the Partnership Act.”

    18. Hence, in view of the judgment of this Court, the

    of
    submission that a complaint filed by an unregistered firm is not

    maintainable cannot be accepted.

    19.
    rt
    It was submitted that the complainant had asserted

    in the complaint that he was authorised by the partner of the

    firm to file a complaint; however, no such authorisation was

    placed on record, and the complaint is not maintainable. This

    submission cannot be accepted. It was laid down by the

    Karnataka High Court in Padmavati Finance Registered vs Md.

    Yosuf Ali S/O Haji Abdul Hameed Criminal Appeal No.3608/2009

    decided on 05-07-2013 that any partner of the firm can file a

    complaint under Section 19(2)(a) to (h) of the Partnership Act. It

    was observed: –

    “21. Section 22 of the Indian Partnership Act deals with
    the mode of doing an act to bind the firm, which reads as
    follows:

    “22. Mode of doing act to bind the firm.- In order to
    bind a firm, an act or instrument done or executed

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    by a partner or other person on behalf of the firm
    shall be done or executed in the firm’s name, or in
    any other manner expressing or implying an
    intention to bind the firm”.

    .

    Thus, as per the provisions which are barred under
    Section 19(2)(a) to (h) of the Partnership Act, any partner
    of the firm can file the complaint, as the definition under

    Section 2(a) of the Partnership Act gives rise to a right
    enforceable by or against the firm.

    22. In the instant case, one of the partners of the firm

    of
    complained about the accused when the cheque issued by
    him was dishonoured. The partner of the firm, therefore,
    has an enforceable right under the law on behalf of the
    rt
    firm or against the firm unless barred under Section 19(2)
    of the Partnership Act or against the bylaws of the
    partnership deed.

    23. In the instant case, learned counsel for the
    complainant fairly submitted that there are no specific
    bylaws permitting any partner of the firm to file a

    complaint with the firm for the benefit of the firm, which
    is the payee defined under Section 142 of the Act.

    24. Even during the trial, the accused had not produced

    any kind of evidence to prove that the firm is not
    intending to prosecute him for the offence under Section

    138 of the Act and that the firm has no intention to
    prosecute him. In that view of the matter, the

    complainant representing the firm is competent to lodge
    the complaint on behalf of the firm for recovery of the
    amount due to the firm from the accused by invoking the
    provisions of Section 138 of the Act.

    25. Having regard to the above facts and circumstances,
    the learned Magistrate was not justified in acquitting the
    accused on the sole ground that the complainant was not
    authorised to file a complaint on behalf of the firm.

    20. It was laid down by the Bombay High Court in Reshmi

    Constructions v. Laxman Vithal Chunekar, 2014 SCC OnLine Bom

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    2894: (2014) 5 Mah LJ 537 that the partner of a firm can file a

    complaint on behalf of the firm without any authorisation. It

    .

    was observed at page 541:

    “17. From the above provisions of the Act, it is clear that

    every partner is an agent of the Firm and his other
    partners for the purpose of business of the firm, and the
    acts of every partner bind the firm and his partners,

    of
    unless, of course, the partner had, in fact, no authority to
    act for the firm and his other partners. The learned trial
    Magistrate relied upon the judgment of this Court in the
    case of Alka Toraskar v. State of Goa, 2007 (1) Goa L.T. 159,
    rt
    which pertains to a Co-operative Society. The trial
    Magistrate further relied upon Fragrant Leasing and

    Finance Co. Ltd. v. Jagdish Katuria, 2008 All MR (Cri.)
    Journal 3 and the judgment in the case of Chico Ursula
    D’Souza v. Goa Plast Pvt. Ltd., 2008 (6) Mh. L.J. 353: 2008 (3)
    Mh. L.J. (Cri.) 323: 2009 (1) All MR 290, both of which

    pertain to Company. Admittedly, a Company is a separate
    juristic person distinct from its directors or shareholders,
    and the Company acts through the resolution passed by

    the Board of Directors. Because of the above, a person who
    claims to represent another is bound to produce an

    authority or power which entitles him to appear. The
    above is not the case with the Partnership Firm. As has
    already been seen above, each partner is an agent of the

    Firm. In the present case, it is not that some person, on
    the strength of a power of attorney, had filed a complaint
    and had deposed on behalf of the complainant. In the
    present case, the complaint was not filed by PW 1, but it
    was filed by the Firm, through PW 1, as a partner of that
    Firm. The person who deposed on behalf of the
    complainant was one of the partners of the said
    Complainant-Firm. In fact, the agreement dated 5-4-
    2005 was signed by the same partner, Shri Pandharinath
    Chafadkar (PW 1), for himself and as attorney of the other
    two partners, Arun Chafadkar and Narayan Nigalye. In the

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    circumstances above, the finding of the Trial Magistrate
    that there was no authority for PW 1 to file the complaint
    or to depose on behalf of the complainant is not correct.

    .

    21. The accused claimed in his statement recorded under

    Section 313 of Cr.P.C. that the cheque was issued as security,

    which was misused by the complainant. Thus, the issuance of

    the cheque and the signatures on the cheque were not disputed.

    of
    It was laid down by the Hon’ble Supreme Court in APS Forex

    Services (P) Ltd. v. Shakti International Fashion Linkers (2020) 12
    rt
    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
    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

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    particularly, the cheque in question was issued for the
    second time after the earlier cheques were dishonoured.
    Therefore, both the courts below have materially erred in
    not properly appreciating and considering the

    .

    presumption in favour of the complainant that there
    exists a legally enforceable debt or liability as per Section
    139
    of the NI Act. It appears that both the learned trial

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

    of
    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
    rt
    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.”

    22. 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.”

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

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

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

    15. In the present case, the cheque in question has
    admittedly been signed by the Respondent No. 1-Accused.

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    2026:HHC:8213

    This Court is of the view that once the execution of the
    cheque is admitted, the presumption under Section 118 of
    the NI Act that the cheque in question was drawn for
    consideration and the presumption under Section 139 of

    .

    the NI Act that the holder of the cheque received the said
    cheque in discharge of a legally enforceable debt or
    liability arises against the accused. It is pertinent to

    mention that observations to the contrary by a two-Judge
    Bench in Krishna Janardhan Bhat v. Dattatraya G. Hegde,
    (2008) 4 SCC 54, have been set aside by a three-Judge

    of
    Bench in Rangappa (supra).

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

    rt

    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].

    24. Thus, the learned Courts below had rightly held that

    the cheque was issued in discharge of the liability for

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

    presumption.

    25. It was submitted that the accused had paid

    ₹1,76,000/- during the pendency of the proceedings, which fact

    was admitted by the complainant, and the complaint was not

    maintainable. This submission will not help the accused. The

    cause of action for filing the complaint was complete on the

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    2026:HHC:8213

    expiry of 15 days from the date of the receipt of the notice, and

    any payment made thereafter will not help the accused. It was

    .

    laid down by the Hon’ble Supreme Court in Rajneesh Aggarwal v.

    Amit J. Bhalla, (2001) 1 SCC 631, that any payment made after the

    cause of action had arisen would not wipe out the offence. It was

    observed:-

    of

    7. So far as the question of deposit of the money during
    the pendency of these appeals is concerned, we may state
    rt
    that in course of hearing the parties wanted to settle the
    matter in Court and it is in that connection, to prove the
    bona fides, the respondent deposited the amount covered

    under all the three cheques in the Court, but the
    complainant’s counsel insisted that if there is going to be
    a settlement, then all the pending cases between the

    parties should be settled, which was, however not agreed
    to by the respondent and, therefore, the matter could not
    be settled. So far as the criminal complaint is concerned,

    once the offence is committed, any payment made
    subsequent thereto will not absolve the accused of the

    liability of criminal offence, though in the matter of
    awarding of sentence, it may have some effect on the
    court trying the offence. But by no stretch of imagination,

    a criminal proceeding could be quashed on account of the
    deposit of money in the court or that an order of quashing
    of a criminal proceeding, which is otherwise
    unsustainable in law, could be sustained because of the
    deposit of money in this Court. In this view of the matter,
    the so-called deposit of money by the respondent in this
    Court is of no consequence.

    26. Further, the learned Courts below had rightly pointed

    out that the accused had a liability of ₹5,05,141/- as per the

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    2026:HHC:8213

    detail (Ex.C8). Section 59 of the Indian Contract Act enables a

    debtor owing distinct debts to make the payment with express

    .

    intimation that the payment is to be applied to discharge the

    particular debt. Section 60 of the Contract Act empowers the

    creditor to appropriate the amount towards any of the debts in

    the absence of any such stipulation. It was laid down by Delhi

    of
    High Court in Amazing Research Laboratories Ltd. v. Krishna

    Pharma, 2023 SCC OnLine Del 1498, that the creditor is entitled to
    rt
    appropriate the amount towards any debt in the absence of a

    specific stipulation from the debtor. It was observed:

    “48. The underlying principles of apportionment as con-

    tained in above sections according to Pollock & Mulla, In-
    dian Contract Act, 12thEdition, is that when several debts
    are due and owing to one person, any payment made by

    the debtor either with an express intimation or under cir-
    cumstances from which an intimation may be implied,

    must be applied to the discharge of the debt in the man-
    ner intimated or which can be implied from the circum-

    stances. Mulla proceeds to observe that “where several
    distinct debts are owed by a debtor to his creditor, the debtor
    has the right when he makes a payment to appropriate the
    money to any of the debts that he pleases, and the creditor is
    bound, if he takes the money, to apply it in the manner di-
    rected by the debtor. If the debtor does not make any appro-
    priation at the time when he makes the payment, the right of
    appropriation devolves on the creditor”.

    49. The Rule of Appropriation of money was summed up
    by Mr Justice T.L. Venkatarama Aiyar (as he then was) in
    the Full Bench decision of the Madras High Court

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    in Marimella Suryanarayana v. Venkataraman Rao (AIR
    1953 Mad 458). His Lordship stated:

    “The principles governing appropriation of payments

    .

    made by a debtor are under the general law, well settled.

    When a debtor makes a payment, he has a right to have it
    appropriated in such manner as he decides, and if the
    creditor accepts the payment, he is bound to make the ap-

    propriation in accordance with the directions of the
    debtor. This is what is known in England as the rule
    in ‘Clayton’s case” (1861) 1 Mar. 572: 35 E.R. 781, and it is

    of
    embodied in Section 59, Contract Act. But when the debtor
    has not himself made any appropriation, the right de-
    volves on the creditor who can exercise it at any time,
    vide ‘Cory Bros. & Co. v. Owners of the Turkish Steamship
    rt
    ‘Mecca’, [1897] A.C. 286; and even at the time of the trial:

    Vide ‘Symore v. Picket’, [1905] 1 K.B. 715. That is Section

    60, Contract Act. It is only when there is no appropriation
    either by the debtor or the creditor that the Court appro-
    priates the payments as provided in Section 61, Contract
    Act.”

    50. In the case of Anmol Steel Processors Private Lim-
    ited v. Colour Roof (India) Limited (2022 SCC OnLine Bom

    116), the Bombay High Court analysed Sections 60 and 61

    of the Indian Contracts Act and observed:

    “55. Under section 60 of the Indian Contract Act, where
    the debtor has omitted to intimate and there are no settled
    circumstances undertaking the debt to be applied, the

    creditor may apply at his discretion to any lawful debt ac-
    tually due and payable to him from the creditor, whether
    is regular or is not barred by law in force for the time be-
    ing as to the limits of the suit”

    “56. At this stage, it would be apposite to refer to sec-
    tion 61 of the Indian Contract Act, which provides that
    where neither party makes any appropriation, the pay-
    ment shall be applied in discharge of the debts in order of
    time, whether they are or are not barred by the law in
    force for the time being as to the limitation of suits. If the

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    2026:HHC:8213

    debts are of equal standing, the payment shall be applied
    in discharge of each proportionally.”

    51. Thus, to summarize where a debtor, owing several

    .

    distinct debts to one person, makes a payment indicating

    that the payment is to be applied to the discharge of some
    particular debt, the payment must be applied accordingly
    in terms of S. 59 of the Contract Act. However, where the

    debtor omits to so intimate, the creditor may apply it at
    his discretion to any lawful debt actually due and payable
    to him from the debtor, whether its recovery is or is not

    of
    barred by the law in force for the time being as to the limita-
    tion of suits, according to S. 60. Where neither party makes
    any appropriation, the payment shall be applied in dis-
    charge of the debts in order of time, whether they are or
    rt
    are not barred by limitation in terms of Section 61 of the
    Contract Act.”

    27. In the present case, there is no evidence that the

    accused had specified that the amount was being paid towards

    the cheque amount, and in the absence of any such stipulation,

    the complainant was justified in adjusting the amount towards

    the other payment.

    28. It was submitted in the memo of the revision that

    some other complaint was filed regarding the cheque bearing

    No.651308; however, there is no foundation for this submission.

    No copy of such a complaint or the judgment was brought on

    record. The accused did not step into the witness box to assert

    any such fact. Thus, the plea is without any foundation and

    cannot be accepted. It was held in Sumeti Vij v. Paramount Tech

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    23
    2026:HHC:8213

    Fab Industries, (2022) 15 SCC 689: 2021 SCC OnLine SC 201 that the

    accused has to lead defence evidence to rebut the presumption

    .

    and mere denial in his statement under Section 313 of Cr.P.C. is

    not sufficient to rebut the presumption. It was observed at page

    700:

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

    of
    documents in support of his complaints and recorded the
    statement of three witnesses in support thereof, the
    appellant recorded her statement under Section 313 of the
    rt
    Code but failed to record evidence to disprove or rebut the
    presumption in support of her defence available under
    Section 139 of the Act. The statement of the accused

    recorded under Section 313 of the Code is not substantive
    evidence of defence, but only an opportunity for the accused
    to explain the incriminating circumstances appearing in the

    prosecution’s case against the accused. Therefore, there is no
    evidence to rebut the presumption that the cheques were
    issued for consideration.” (Emphasis supplied)”

    29. There was 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.

    30. The cheque was dishonoured with an endorsement

    ‘funds insufficient’ vide memo (Ex.C4). 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)

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    2026:HHC:8213

    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 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

    of
    presumption of dishonour of the cheque, unless and until
    that fact was disproved. Section 147 makes the offences
    punishable under the Act compoundable.

    31. In the present case, no evidence was produced to
    rt
    rebut the presumption, and the learned Courts below had rightly

    held that the cheque was dishonoured with an endorsement

    ‘insufficient funds.’

    32. The complainant sent a notice to the accused, which

    was served upon him, and an acknowledgement (Ex.C7) was

    received by him on 4.12.2019. It was submitted that the

    complaint is barred by limitation. This cannot be accepted. As

    per the acknowledgement, a legal notice was served upon the

    accused on 4.12.2019. It was laid down by the Hon’ble Supreme

    Court in Saketh India Ltd. v. India Securities Ltd., (1999) 3 SCC 1,

    that the date on which the notice was served has to be excluded

    while calculating the period of limitation. It was observed:-

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    2026:HHC:8213

    7. The aforesaid principle of excluding the day from
    which the period is to be reckoned is incorporated in
    Section 12(1) and (2) of the Limitation Act, 1963. Section

    .

    12(1) specifically provides that in computing the period of

    limitation for any suit, appeal or application, the day
    from which such period is to be reckoned shall be
    excluded. Similar provision is made in sub-section (2) for

    appeal, revision or review. The same principle is also
    incorporated in Section 9 of the General Clauses Act, 1897
    which, inter alia, provides that in any Central Act made

    of
    after the commencement of the General Clauses Act, it
    shall be sufficient, for the purpose of excluding the first
    in a series of days or any other period of time, to use the
    rt
    word “from” and for the purpose of including the last in a
    series of days or any other period of time, to use the word
    “to”.

    8. Hence, there is no reason for not adopting the rule
    enunciated in the aforesaid case, which is consistently
    followed and which is adopted in the General Clauses Act

    and the Limitation Act. Ordinarily, in computing the time,
    the rule observed is to exclude the first day and to include
    the last. Applying the said rule, the period of one month

    for filing the complaint will be reckoned from the day
    immediately following the day on which the period of 15

    days from the date of the receipt of the notice by the
    drawer expires. The period of 15 days in the present case

    expired on 14-10-1995. So cause of action for filing a
    complaint would arise from 15-10-1995. That day (15th
    October) is to be excluded from counting the period of one
    month. Complaint is filed on 15-11-1995. The result
    would be that the complaint filed on 15th November is
    within time.

    33. This judgment was followed in Econ Antri Ltd. v. Rom

    Industries Ltd., (2014) 11 SCC 769, wherein it was observed: –

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    2026:HHC:8213

    42. Having considered the question of law involved in this
    case in proper perspective, in the light of relevant
    judgments, we are of the opinion that Saketh [Saketh India
    Ltd. v. India Securities Ltd.
    , (1999) 3 SCC 1: 1999 SCC (Cri)

    .

    329] lays down the correct proposition of law. We hold
    that for the purpose of calculating the period of one
    month, which is prescribed under Section 142(b) of the NI

    Act, the period has to be reckoned by excluding the date
    on which the cause of action arose. We hold that SIL
    Import, USA [SIL Import, USA v. Exim Aides Silk Exporters
    ,

    of
    (1999) 4 SCC 567: 1999 SCC (Cri) 600] does not lay down
    the correct law. Needless to say, any decision of this Court
    which takes a view contrary to the view taken
    in Saketh [Saketh India Ltd. v. India Securities Ltd., (1999) 3
    rt
    SCC 1: 1999 SCC (Cri) 329] by this Court, which is
    confirmed by us, do not lay down the correct law on the

    question involved in this reference. The reference is
    answered accordingly.”

    34. Therefore, the date of service of notice, i.e.,

    4.12.2019, has to be excluded, and the complaint filed on

    18.1.2020, within 45 days from the date of the service of notice,

    cannot be said to be barred by limitation.

    35. The accused had not paid the amount despite the

    receipt of the notice. Hence, the learned Trial Court had rightly

    held that all the ingredients of the commission of an offence

    punishable under Section 138 of the NI Act were duly satisfied.

    36. Learned Trial Court had sentenced the accused to

    undergo simple imprisonment for one year. It was laid down by

    the Hon’ble Supreme Court in Bir Singh v. Mukesh Kumar, (2019)

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    2026:HHC:8213

    4 SCC 197: (2019) 2 SCC (Cri) 40: (2019) 2 SCC (Civ) 309: 2019 SCC

    OnLine SC 138 that the penal provisions of Section 138 of the NI

    .

    Act is a deterrent in nature. It was observed at page 203:

    “6. The object of Section 138 of the Negotiable

    Instruments Act is to infuse credibility into negotiable
    instruments, including cheques, and to encourage and
    promote the use of negotiable instruments, including

    of
    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
    rt
    honour the promise implicit in the issuance of the same.”

    37. Keeping in view the deterrent sentence to be

    awarded, the sentence of one year cannot be said to be excessive,

    and no interference is required with it.

    38. Learned Trial Court had awarded a compensation of

    ₹2,60,000/-. The cheque was issued on 8.11.2019. The

    compensation was awarded on 26.5.2025 after the lapse of six

    years. The complainant lost money that he would have gained by

    depositing the cheque amount in the bank or by investing it

    somewhere else. He had to engage a counsel to prosecute the

    complaint filed by him. Therefore, he was entitled to be

    compensated for his loss. It was laid down by the Hon’ble

    Supreme Court in Kalamani Tex v. P. Balasubramanian, (2021) 5

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    SCC 283: (2021) 3 SCC (Civ) 25: (2021) 2 SCC (Cri) 555: 2021 SCC

    OnLine SC 75 that the Courts should uniformly levy a fine up to

    .

    twice the cheque amount along with simple interest at the rate

    of 9% per annum. It was observed at page 291: –

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

    of
    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
    rt
    liability for the realisation of the cheque amount. It is also
    well settled that there needs to be a consistent approach

    towards awarding compensation, and unless there exist
    special circumstances, the courts should uniformly levy
    fines up to twice the cheque amount along 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]”

    39. Therefore, the compensation of ₹2,60,000/- cannot

    be said to be excessive.

    40. It was submitted that the learned Trial Court could

    not have awarded the sentence of imprisonment in default of

    payment of compensation. This submission cannot be accepted.

    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 that the

    Courts can impose a sentence of imprisonment in default of

    payment of compensation. It was observed at page 237:

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    2026:HHC:8213

    “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 party
    can ensure the delivery of total justice. Therefore, this

    of
    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 of this
    compensation, there must be a just recourse. Not
    rt
    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.”

    40. 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 accused
    for which he is sentenced. If merely an order directing
    compensation is passed, it would be totally ineffective. It

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    2026:HHC:8213

    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

    of
    mode of recovery is 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
    rt
    obvious that 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.

    41. Hence, the sentence of imprisonment in default of

    payment of compensation is not bad.

    42. No other point was urged.

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    2026:HHC:8213

    43. In view of the above, the present revision fails, and it

    is dismissed, and so are the pending miscellaneous applications,

    .

    if any.

    (Rakesh Kainthla)

    Judge
    23rd March, 2026
    (Chander)

    of
    rt

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