24.02.2026 vs Of on 6 March, 2026

Himachal Pradesh High Court

Reserved On: 24.02.2026 vs Of on 6 March, 2026

                                                                           2026:HHC:6104




       IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
                                    Cr. Revision No. 556 of 2023
                                    Reserved on: 24.02.2026




                                                                        .

                                    Date of Decision: 06.03.2026





Inderjeet                                                                  ....Petitioner

                                              Versus




                                               of
Kishan Chand                                                           .... Respondent


Coram
                        rt
Hon'ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting?1No

    For the Petitioner               :     Mr Maan Singh, Advocate.



    For the Respondent               :     Mr Surya Chauhan, Advocate.




Rakesh Kainthla, Judge

The present revision is directed against the judgment

dated 03.10.2023, passed by learned Sessions Judge, Kullu, District

Kullu (learned Appellate Court) vide which the judgment of

conviction dated 07.12.2022 and order of sentence dated 25.03.2023

passed by learned Chief Judicial Magistrate, L&S at Kullu, H.P

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

1
. Whether reporters of the 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

of
offence punishable under Section 138 of the Negotiable Instruments

Act (NI Act). It was asserted that the accused and the complainant
rt
were known to each other. The accused borrowed ₹9,00,000/- from

the complainant in July, 2011. He agreed to repay the amount in

October, 2012. The complainant demanded the money, and the

accused issued a cheque of ₹9,00,000/- drawn on Union Bank of

India, Bhuntar, in the complainant’s favour. The complainant

presented the cheque before the bank for realization but it was

dishonoured with an endorsement ‘funds insufficient’. The

complainant issued a notice to the accused asking him to repay the

money within fifteen days of its receipt, but the accused refused to

receive it. Hence, a complaint was filed before the learned Trial

Court against the accused for taking action as per the law.

3. Learned Trial Court found sufficient reasons to summon

the accused. When the accused appeared, a notice of accusation was

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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 (CW-1) and Roshan

Lal (CW2) to prove his complaint.

of

5. The accused, in his statement recorded under Section

313 of Cr.P.C., admitted that the cheque book belonged to him and
rt
that he had issued a cheque. He stated that the cheque was not

signed by him and he did not know how the complainant came into

possession of the cheque book. He examined Lal Chand (DW1) to

prove his defence.

6. Learned Trial Court held that it was suggested to the

complainant in his cross-examination that the cheque was handed

over to Mr P.D. Bhatia, the Manager of the bank, which shows that

the accused had admitted the issuance of the cheque. This

suggestion was not proven. The accused did not claim in his

statement under Section 313 Cr.P.C. that the cheque was issued to

Mr P.D. Bhatia. A presumption arose that the cheque was issued in

discharge of the debt/legal liability for consideration. The burden

shifted upon the accused to rebut the presumption. The accused

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failed to produce any evidence to rebut the presumption. The

cheque was dishonoured with an endorsement ‘insufficient funds’.

.

The accused refused to accept the notice, which is deemed service.

All the ingredients of the commission of an offence punishable

under Section 138 of the NI Act were duly satisfied. Hence, the

learned Trial Court convicted the accused and sentenced him to

of
undergo simple imprisonment for six months and pay a

compensation of ₹1,50,000/-.

rt

7. Being aggrieved by the judgment and order passed by

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

decided by the learned Sessions Judge, Kullu, District Kullu, H.P.

(learned Appellate Court). Learned Appellate Court concurred with

the findings recorded by the learned Trial Court that the issuance of

the cheque was not specifically disputed, and a presumption arose

that the cheque was issued for consideration to discharge the

debt/liability. The accused failed to produce any evidence to rebut

the presumption. The cheque was dishonoured with an

endorsement ‘insufficient funds’, and the accused had refused to

accept the notice, which is a deemed service. All the ingredients of

the commission of an offence punishable under Section 138 of the

Negotiable Instruments Act were duly satisfied. The sentence

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imposed by the learned Trial Court was adequate, and 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 appreciate the

of
material on record. The accused denied the complainant’s case in

its entirety. He denied his signature on the cheque. Therefore, the
rt
complainant was required to prove that the accused had issued the

cheque in discharge of his debt/liability. The complainant failed to

prove any material to show that he had advanced ₹9,00,000/-. He

had not produced any receipt or the Income Tax Return to prove his

version. Hence, it was prayed that the present revision be allowed

and the judgments and order passed by the learned Courts below be

set aside.

9. I have heard Mr Maan Singh, learned counsel for the

petitioner/accused and Mr Surya Chauhan, learned counsel for the

respondent/complainant.

10. Mr Maan Singh, learned counsel for the

petitioner/accused, submitted that the learned Courts below erred

in appreciating the material on record. The complaint was

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premature. The accused denied the issuance of the cheque or his

signature on the cheque. Therefore, the presumption under Section

.

118(a) and 139 of the NI Act could not have been drawn. Learned

Courts below erred in drawing the presumption. Therefore, he

prayed that the present revision be allowed and the judgments and

order passed by the learned Courts below be set aside. He relied

of
upon the judgment of this Court in Dyal Negi @ Hardyal vs. Anil

Kumar 2025:HHC:36356 and Hon’ble Supreme Court in Indian Bank
rt
Association and others vs. Union of India and others (2014) 5 SCC 590

in support of his submission.

11. Mr Surya Chauhan, learned counsel for the respondent,

submitted that the accused had not taken any plea regarding the

complaint being premature before the learned Courts below, and

this plea cannot be taken before this Court. The complaint was not

premature. The accused had not disputed the issuance of the

cheque in the cross-examination of the complainant, and the

learned Courts below were justified in convicting the accused. This

Court should not interfere with the concurrent findings of fact

recorded by the learned Courts below. Therefore, he prayed that the

present revision be dismissed.

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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 revisional court is not

of
an appellate court and it can only rectify the patent defect, errors of

jurisdiction or the law. It was observed at page 207-
rt
“10. Before adverting to the merits of the contentions, at the
outset, it is apt to mention that there are concurrent findings

of conviction arrived at by two courts after a detailed
appreciation of the material and evidence brought on record.
The High Court in criminal revision against conviction is not
supposed to exercise the jurisdiction like the appellate court,

and the scope of interference in revision is extremely narrow.
Section 397 of the Criminal Procedure Code (in short “CrPC“)
vests jurisdiction to satisfy itself or himself as to the

correctness, legality or propriety of any finding, sentence or
order, recorded or passed, and as to the regularity of any

proceedings of such inferior court. The object of the
provision is to set right a patent defect or an error of
jurisdiction or law. There has to be a well-founded error

which is to be determined on the merits of individual cases. It
is also well settled that while considering the same, the
Revisional Court does not dwell at length upon the facts and
evidence of the case to reverse those findings.

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:

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“14. The power and jurisdiction of the Higher Court under
Section 397 CrPC, which vests the court with the power to call
for and examine records of an inferior court, is for the

.

purposes of satisfying itself as to the legality and regularities

of any proceeding or order made in a case. The object of this
provision is to set right a patent defect or an error of
jurisdiction or law or the perversity which has crept in such

proceedings.

15. It would be apposite to refer to the judgment of this Court
in Amit Kapoor v. Ramesh Chander [Amit Kapoor v. Ramesh

of
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)
rt
“12. Section 397 of the Code vests the court with the
power to call for and examine the records of an inferior
court for the purposes of satisfying itself as to the

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

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

consideration and appear to be in accordance with law.
If one looks into the various judgments of this Court, it

emerges that the revisional jurisdiction can be 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

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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.”

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

of
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
rt
evidence and come to its conclusions in the absence of any

perversity. It was observed at page 169:

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

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

1999 SCC (Cri) 275], while considering the scope of the

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

5. … In its revisional jurisdiction, the High Court can
call for and examine the record of any proceedings to

satisfy itself as to the correctness, legality or propriety
of any finding, sentence or order. In other words, the
jurisdiction is one of supervisory jurisdiction exercised
by the High Court for correcting a miscarriage of
justice. But the said revisional power cannot be equated
with the power of an appellate court, nor can it be
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

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the Sessions Judge in appeal, unless any glaring feature
is brought to the notice of the High Court which would
otherwise amount to a gross miscarriage of justice. On

.

scrutinising the impugned judgment of the High Court

from the aforesaid standpoint, we have no hesitation
in concluding that the High Court exceeded its
jurisdiction in interfering with the conviction of the

respondent by reappreciating the oral evidence. …”

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

of
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
rt
perverse or wholly unreasonable or there is non-
consideration of any relevant material, the order cannot be

set aside merely on the ground that another view is possible.
The following has been laid down in para 14: (SCC p. 135)
“14. … Unless the order passed by the Magistrate is

perverse or the view taken by the court is wholly
unreasonable or there is non-consideration of any
relevant material or there is palpable misreading of

records, the Revisional Court is not justified in setting
aside the order, merely because another view is

possible. The Revisional Court is not meant to act as an
appellate court. The whole purpose of the revisional
jurisdiction is to preserve the power in the court to do

justice in accordance with the principles of criminal
jurisprudence. The revisional power of the court under
Sections 397 to 401 CrPC is not to be equated with that
of an appeal. Unless the finding of the court, whose
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

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with the decision in exercise of their revisional
jurisdiction.”

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

.

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

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

“16. It is well settled that in the exercise of revisional
jurisdiction under Section 482 of the Criminal Procedure

of
Code, the High Court does not, in the absence of perversity,
upset concurrent factual findings. It is not for the Revisional
Court to re-analyse and re-interpret the evidence on record.

rt

17. As held by this Court in Southern Sales & Services v.
Sauermilch Design and Handels GmbH, (2008) 14 SCC 457, it is
a well-established principle of law that the Revisional Court

will not interfere even if a wrong order is passed by a court
having jurisdiction, in the absence of a jurisdictional error.
The answer to the first question is, therefore, in the

negative.”

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

parameters laid down by the Hon’ble Supreme Court

18. The ingredients of an offence punishable under Section

138 of the NI Act were explained by the Hon’ble Supreme Court in

Kaveri Plastics v. Mahdoom Bawa Bahrudeen Noorul, 2025 SCC

OnLine SC 2019 as under: –

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

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account for discharge in whole/in part of any debt or liability,

(ii) presentation of the cheque by the payee or the holder in
due course to the bank, (iii) returning the cheque unpaid by

.

the drawee bank for want of sufficient funds to the credit of

the drawer or any arrangement with the banker to pay the
sum covered by the cheque, (iv) giving notice in writing to
the drawer of the cheque within 15 days of the receipt of

information by the payee from the bank regarding the return
of the cheque as unpaid demanding payment of the cheque
amount, and (v) failure of the drawer to make payment to the

of
payee or the holder in due course of the cheque, of the
amount covered by the cheque within 15 days of the receipt of
the notice.

19. The complainant asserted in his proof affidavit
rt
(Ext.CW-1/A) that the accused had borrowed a sum of ₹9,00,000/-

in July 2011 and agreed to repay it in October 2012. The accused

issued a cheque of ₹9,00,000/- on 25.10.2011 to return the amount.

He stated in his cross-examination that he had paid ₹9,00,000/- to

the accused on 05.07.2011 in Union Bank of India, Kullu, after

withdrawing the money from his account. This statement is

corroborated by the complainant’s statement of account

(Ext.DW1/A), which shows that an amount of ₹9,00,000/- was

withdrawn on 05.07.2011. The copy of the cheque of ₹9,00,000/- is

also annexed with the statement of account. Therefore, the

complainant’s version that he had withdrawn ₹9,00,000/-and

handed them over to the accused was duly established.

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20. The complainant stated in his cross-examination that

Mr P.D. Bhatia was the Branch Manager who was known to him

.

(complainant). He denied that the cheque (Ext.CW-1/B) was handed

over by Mr P.D. Bhatia, who was having the blank cheques of the

accused. He denied that the accused did not have any transaction

with him, and a false case was filed against the accused.

of

21. Learned Courts below had rightly held that the
rt
suggestion that the blank cheques were lying with Mr P.D. Bhatia,

who had handed over the cheque to the complainant, corroborated

the complainant’s version that the cheque was issued by the

accused, and it bears his signature. It was laid down by the Hon’ble

Supreme Court in Balu Sudam Khalde v. State of Maharashtra, (2023)

13 SCC 365: 2023 SCC OnLine SC 355 that the suggestion put to the

witness can be taken into consideration while determining the

innocence or guilt of the accused. It was observed at page 383:-

“38. Thus, from the above, it is evident that the suggestion
made by the defence counsel to a witness in the cross-
examination, if found to be incriminating in nature in any
manner, would definitely bind the accused, and the accused
cannot get away on the plea that his counsel had no implied
authority to make suggestions in the nature of admissions
against his client.

39. Any concession or admission of a fact by a defence
counsel would definitely be binding on his client, except for

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the concession on the point of law. As a legal proposition, we
cannot agree with the submission canvassed on behalf of the
appellants that an answer by a witness to a suggestion made

.

by the defence counsel in the cross-examination does not

deserve any value or utility if it incriminates the accused in
any manner.

****

42. Therefore, we are of the opinion that suggestions made to
the witness by the defence counsel and the reply to such
suggestions would definitely form part of the evidence and

of
can be relied upon by the Court along with other evidence on
record to determine the guilt of the accused.”

22. Thus, the learned Courts below had rightly held that the
rt
suggestion made to the complainant would show that the accused

had issued the cheque which contained his signature. It was laid

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

Shakti International Fashion Linkers (2020) 12 SCC 724, that when the

issuance of a cheque and signature on the cheque are 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

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the full amount due and payable to the complainant had been
paid. In the present case, no such evidence has been led by
the accused. The story put forward by the accused that the

.

cheques were given by way of security is not believable in the

absence of further evidence to rebut the presumption, and
more particularly, the cheque in question was issued for the
second time after the earlier cheques were dishonoured.

Therefore, both the courts below have materially erred in not
properly appreciating and considering the presumption in
favour of the complainant that there exists a legally

of
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
rt
appreciating the presumption under Section 139 of the NI Act.
As observed above, Section 139 of the Act is an example of

reverse onus clause and therefore, once the issuance of the
cheque has been admitted and even the signature on the
cheque has been admitted, there is always a presumption in
favour of the complainant that there exists legally

enforceable debt or liability and thereafter, it is for the
accused to rebut such presumption by leading evidence.”

23. 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.”

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

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

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

.

15. In the present case, the cheque in question has admittedly

been signed by the Respondent No. 1-Accused. This Court is
of the view that once the execution of the cheque is admitted,
the presumption under Section 118 of the NI Act that the

cheque in question was drawn for consideration and the
presumption under Section 139 of the NI Act that the holder
of the cheque received the said cheque in discharge of a

of
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
rt
Bench in Rangappa (supra).

16. This Court is further of the view that by creating this

presumption, the law reinforces the reliability of cheques as a
mode of payment in commercial transactions.

17. Needless to mention that the presumption contemplated

under Section 139 of the NI Act is rebuttable. However, the
initial onus of proving that the cheque is not 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].

25. 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.

26. The accused did not step into the witness box to

establish the plea taken by him that the cheque did not bear his

signature. It was held in Sumeti Vij v. Paramount Tech Fab Industries,

(2022) 15 SCC 689: 2021 SCC OnLine SC 201 that the accused has to

lead defence evidence to rebut the presumption and mere denial in

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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
documents in support of his complaints and recorded the
statement of three witnesses in support thereof, the

appellant recorded her statement under Section 313 of the
Code but failed to record evidence to disprove or rebut the
presumption in support of her defence available under

of
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
rt
against the accused. Therefore, there is no evidence to rebut the
presumption that the cheques were issued for consideration.”

(Emphasis supplied)”

27. The accused examined Lal Chand to prove the statement

of account of the complainant (Ext.DW-1/A), which shows the

withdrawal of ₹9,00,000/- on 05.07.2011 and corroborates the

complainant’s version rather than falsifying it.

28. It was submitted that the complainant did not file the

Income Tax Return to show that the money was advanced to the

accused. This submission will not help the accused. It was laid down

by this Court in Surinder Singh vs. State of H.P. 2018(1) D.C.R. 45 that

the failure to mention the loan in the income tax return will not

entitle the accused to acquittal. It was observed: –

10. It would further be noticed that the learned trial
Magistrate has acquitted the accused on the ground that the

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loan has not been shown in the Income Tax Return furnished
by the complainant, and while recording such finding has
placed reliance upon the judgment of the Hon’ble Delhi High

.

Court in Vipul Kumar Gupta vs. Vipin Gupta 2012 (V) AD (CRI)

189. However, after having perused the said judgment, it
would be noticed that the amount in the said case was ₹ 9
lacs, and it is in that background that the Court observed as

under: –

“9. I find myself in agreement with the reasoning
given by the learned ACMM that before a person is

of
convicted for having committed an offence
under Section 138 of the Act, it must be proved beyond
a reasonable doubt that the cheque in question, which
has been made as a basis for prosecuting the
rt
respondent/accused, must have been issued by him in
the discharge of his liability or a legally recoverable

debt. In the facts and circumstances of this case, there
is every reason to doubt the version given by the
appellant that the cheque was issued in the discharge
of a liability or a legally recoverable debt. The reasons

for this are a number of factors which have been
enumerated by the learned ACMM also. Some of them
are that non-mentioning by the appellant in his

Income Tax Return or the Books of Accounts, the
factum of the loan having been given by him because

by no measure, an amount of ₹ 9,00,000/- can be said
to be a small amount which a person would not reflect

in his Books of Accounts or the Income Tax Return, in
case the same has been lent to a person. The appellant,
neither in the complaint nor in his evidence, has
mentioned the date, time or year when the loan was
sought or given. The appellant has presented a cheque,
which obviously is written with two different inks, as
the signature appears in one ink, while the remaining
portion, which has been filled in the cheque, is in a
different ink. All these factors prove the defence of the
respondent to be plausible to the effect that he had
issued these cheques by way of security to the

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appellant for getting a loan from the Prime Minister
Rojgar Yojana. The respondent/accused has only to
create doubt in the version of the appellant, while the

.

appellant has to prove the guilt of the accused beyond a

reasonable doubt, in which, in my opinion, he has
failed miserably. There is no cogent reason which has
been shown by the appellant which will persuade this

Court to grant leave to appeal against the impugned
order, as there is no infirmity in the impugned order.”

29. Thus, no advantage can be derived from the fact that the

of
Income Tax Return was not filed before the learned Trial Court.

30.
rt
It was submitted that no receipt was obtained from the

accused, and the version of the complainant that he had advanced

₹9,00,000/- to the accused cannot be accepted. This submission

will also not help the accused. Once the presumption under Section

118(a) and 139 of the NI Act is drawn, the complainant is not

required to prove the existence of the consideration. It was laid

down by the Hon’ble Supreme Court in Uttam Ram v. Devinder Singh

Hudan, (2019) 10 SCC 287: 2019 SCC OnLine SC 1361, that a

presumption under Section 139 of the NI Act would obviate the

requirement to prove the existence of consideration. It was

observed:

“20. Th̨ e trial court and the High Court proceeded as if the
appellant was to prove a debt before the civil court, wherein
the plaintiff is required to prove his claim on the basis of
evidence to be laid in support of his claim for the recovery of

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the amount due. An dishonour of a cheque carries a statutory
presumption of consideration. The holder of the cheque in
due course is required to prove that the cheque was issued by

.

the accused and that when the same was presented, it was

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

other liability.”

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

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

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

account as well as the date and time of the withdrawal of the
said amount which was given to the accused and also the
date and time of the payment made to the accused, including

the date and time of receiving of the cheque, which has not
been done in the present case. Pausing here, such
presumption on the complainant, by the High Court, appears
to be erroneous. The onus is not on the complainant at the

threshold to prove his capacity/financial wherewithal to

make the payment in discharge of which the cheque is
alleged to have been issued in his favour. Only if an objection
is raised that the complainant was not in a financial position

to pay the amount so claimed by him to have been given as a
loan to the accused, only then would the complainant would
have to bring before the Court cogent material to indicate
that he had the financial capacity and had actually advanced
the amount in question by way of loan. In the case at hand,
the appellant had categorically stated in his deposition and
reiterated in the cross-examination that he had withdrawn
the amount from the bank in Faizabad (Typed Copy of his
deposition in the paperbook wrongly mentions this as
‘Firozabad’). The Court ought not to have summarily
rejected such a stand, more so when respondent no. 2 did not

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make any serious attempt to dispel/negate such a
stand/statement of the appellant. Thus, on the one hand, the
statement made before the Court, both in examination-in-

.

chief and cross-examination, by the appellant with regard to

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

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

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

on this point which has not been done by the petitioners.
Pausing here, the Court would only comment that the
reasoning of the High Court, as well as the First Appellate
Court and Trial Court, on this issue is sound. Just by taking

a counter-stand to raise a probable defence would not
shift the onus on the complainant in such a case, for the
plea of defence has to be buttressed by evidence, either

oral or documentary, which in the present case has not
been done. Moreover, even if it is presumed that the

complainant had not proved the source of the money
given to the petitioners by way of loan by producing

statement of accounts and/or Income Tax Returns, the
same ipso facto, would not negate such claim for the
reason that the cheques having being issued and signed
by the petitioners has not been denied, and no evidence
has been led to show that the respondent lacked capacity
to provide the amount(s) in question. In this regard, we
may make profitable reference to the decision in Tedhi
Singh v. Narayan Dass Mahant, (2022) 6 SCC 735:
’10. The trial court and the first appellate court have
noted that in the case under Section 138 of the NI Act,
the complainant need not show in the first instance

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that he had the capacity. The proceedings under
Section 138 of the NI Act are not a civil suit. At the time,
when the complainant gives his evidence, unless a

.

case is set up in the reply notice to the statutory notice

sent, that the complainant did not have the
wherewithal, it cannot be expected of the complainant
to initially lead evidence to show that he had the

financial capacity. To that extent, the courts in our
view were right in holding on those lines. However, the
accused has the right to demonstrate that the

of
complainant in a particular case did not have the
capacity and therefore, the case of the accused is
acceptable, which he can do by producing independent
materials, namely, by examining his witnesses and
rt
producing documents. It is also open to him to
establish the very same aspect by pointing to the

materials produced by the complainant himself. He
can further, more importantly, further achieve this
result through the cross-examination of the witnesses
of the complainant. Ultimately, it becomes the duty of

the courts to consider carefully and appreciate the
totality of the evidence and then come to a conclusion
whether, in the given case, the accused has shown that

the case of the complainant is in peril for the reason
that the accused has established a probable

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

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

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

observed:

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

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complainant to prove the antecedent debt or liability. This
Court is of the view that such an approach is not only
prolonging the trial but is also contrary to the mandate of

.

Parliament, namely, that the drawer and the bank must

honour the cheque; otherwise, trust in cheques would be
irreparably damaged.”

33. In the present case, the complainant’s version is

corroborated by the statement of account produced by the accused.

of
Therefore, the failure to prove the receipt will not make the case of

the complainant doubtful.

34.
rt
There was no other evidence to rebut the presumption

attached to the cheque, and the learned Courts below had rightly

relied upon it.

35. The memo of dishonour (Ext.CW1/C) shows that the

cheque was dishonoured with an endorsement ‘funds insufficient’.

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

Cooperative Bank Ltd. v. Nimesh B. Thakore, (2010) 3 SCC 83: (2010) 1

SCC (Civ) 625: (2010) 2 SCC (Cri) 1: 2010 SCC OnLine SC 155 that the

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

is 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

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dishonoured would, by itself, give rise to the presumption of
dishonour of the cheque, unless and until that fact was
disproved. Section 147 makes the offences punishable under

.

the Act compoundable.

36. In the present case, no evidence was produced to rebut

the presumption, and the learned Courts below had rightly held

that the cheque was dishonoured with an endorsement ‘insufficient

of
funds.’

37. The complainant issued a notice to the accused, which
rt
was returned with the endorsement ‘refused’. It was laid down by

the Hon’ble Supreme Court of India in C.C. Allavi Haji vs. Pala Pelly

Mohd. 2007(6) SCC 555, that when a notice is returned with an

endorsement ‘refused’, it is deemed to be served. It was observed:

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

in terms of Clause (b) had been returned unclaimed and
not as refused, the Court, posed the question: “Will

there be any significant difference between the two so
far as the presumption of service is concerned?” It was
observed that though Section 138 of the Act does not

require that the notice should be given only by “post”,
yet in a case where the sender has dispatched the notice
by post with the correct address written on it, the
principle incorporated in Section 27 of the General
Clauses Act, 1897 (for short ‘G.C. Act‘) could profitably
be imported in such a case. It was held that in this
situation service of notice is deemed to have been
effected on the sendee unless he proves that it was not
really served and that he was not responsible for such
non-service.”

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38. A similar view was taken in Krishna Swaroop Agarwal v.

Arvind Kumar, 2025 SCC OnLine SC 1458, wherein it was observed:

.

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

“27. Meaning of Service by post.- Where any

[Central Act] or Regulation made after the
commencement of this Act authorizes or requires
any document to be served by post, whether the

of
expression “serve” or either of the expressions
“give” or “send” or any other expression is used,
then, unless a different intention appears, the
service shall be deemed to be effected by properly
rt
addressing, pre-paying and posting by registered
post, a letter containing the document, and, unless

the contrary is proved, to have been effected at the
time at which the letter would be delivered in the
ordinary course of post”.

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

14.1 In Madan and Co. v. Wazir Jaivir Chand (1989) 1
SCC 264, which was a case concerned with the

payment of arrears of rent under the J&K Houses
and Shops Rent Control Act, 1966. The proviso to

Section 11, which is titled “Protection of a Tenant
against Eviction”, states that unless the landlord
serves notice upon the rent becoming due, through
the Post Office under a registered cover, no amount
shall be deemed to be in arrears. Regarding service
of notice by post, it was observed that in order to
comply with the proviso, all that is within the
landlord’s domain to do is to post a pre-paid
registered letter containing the correct address and
nothing further. It is then presumed to be delivered
under Section 27 of the GC Act. Irrespective of
whether the addressee accepts or rejects, “there is

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no difficulty, for the acceptance or refusal can be
treated as a service on, and receipt by the addressee.”
14.2 In the context of Section 138 of the Negotiable

.

Instruments Act, 1881it was held that when the

payee dispatches the notice by registered post, the
requirement under Clause (b) of the proviso of
Section 138 of the NI Act stands complied with and

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

of
Mouhammed (2007) 6 SCC 555]
14.3 The findings in C.C. Alavi (supra) were followed
in Vishwabandhu v. Srikrishna (2021) 19 SCC 549. In
rt
this case, the summons issued by the Registered AD
post was received back with endorsement “refusal”.
In accordance with Sub-Rule (5) of Order V Rule 9 of

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

made to the judgment referred to supra.

14.4 A similar position as in C.C. Alavi (supra) stands
adopted by this Court in various judgments of this

Court in Greater Mohali Area Development Authority
v. Manju Jain (2010) 9 SCC 157; Gujarat Electricity

Board v. Atmaram Sungomal Posani (1989) 2 SCC
602; CIT v. V. K. Gururaj (1996) 7 SCC 275; Poonam
Verma v. DDA (2007) 13 SCC 154; Sarav Investment &

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

39. Therefore, the learned Courts below had rightly held

that notice was deemed to have been served upon the accused.

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40. It was submitted that, as per the endorsement made on

the registered letter (Ext.CW-1/F), the postman had visited the

.

house of the accused on 10.01.2013, 11.01.2013 and 14.01.2013 and

made an endorsement of the door locked. The envelope was

returned on 14.01.2013 as per the postal mark put on it. Therefore,

the notice was deemed to be served on 14.01.2013. The complaint

of
was filed on 28.01.2013, and it is premature. This submission cannot

be accepted. Once the endorsement of ‘refused’ was made on the
rt
registered letter on 09.01.2013, the postman had no occasion to visit

the house of the accused and make an endorsement of the door

locked. Such an endorsement will not help the accused. The notice

was deemed to be served on 09.01.2013, when the endorsement of

refusal was made, and the cause of action arose on 09.01.2013;

hence, the complaint filed on 28.01.2013, after 15 days from the date

of deemed service of the notice, is not premature.

41. It was submitted that the complaint was drafted on

24.01.2013, the affidavit was sworn on 24.01.2013 before the cause

of action had arisen, and the learned Trial Court could not have

taken cognisance of the same. Reliance was placed upon the

judgment of the Hon’ble Supreme Court in the Indian Bank

Association (supra) in support of this submission. This submission

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will not help the accused. There is nothing in the judgment of the

Hon’ble Supreme Court that the affidavit has to be sworn after the

.

completion of 15 days of the service of the notice. The Court has to

see whether the cause of action was complete on the date of filing

of the complaint, and the swearing on an affidavit before the expiry

of 15 days will not make any difference.

of

42. In Dyal Negi @ Hardyal (supra), the complaint was
rt
premature, having been filed within 15 days of the accrual of the

cause of action, and the cited judgment will not apply to the present

case.

43. Therefore, learned Courts below had rightly held that all

the ingredients of the commission of an offence punishable under

Section 138 of the NI Act were duly satisfied.

44. Learned Trial Court sentenced the accused to undergo

simple imprisonment for six months. It was laid down by the

Hon’ble Supreme Court in Bir Singh v. Mukesh Kumar, (2019) 4 SCC

197: (2019) 2 SCC (Cri) 40: (2019) 2 SCC (Civ) 309: 2019 SCC OnLine SC

138 that the penal provision of Section 138 of NI Act is a deterrent in

nature. It was observed at page 203:

“6. The object of Section 138 of the Negotiable
Instruments Act is to infuse credibility into negotiable

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instruments, including cheques, and to encourage and
promote the use of negotiable instruments, including
cheques, in financial transactions. The penal provision

.

of Section 138 of the Negotiable Instruments Act is

intended to be a deterrent to callous issuance of
negotiable instruments such as cheques without
serious intention to honour the promise implicit in the

issuance of the same.”

45. Keeping in view the deterrent nature of the sentence to

of
be awarded, the sentence of six months of simple imprisonment

cannot be said to be excessive, and no interference is required with

it.

rt

46. Learned Trial Court had awarded a compensation of ₹15

lacs. The cheque was issued for ₹9 lacs, which means that a

compensation of ₹6 lacs was awarded. The cheque was issued on

25.10.2012, and the compensation was awarded on 25.03.2023 after

the lapse of more than 10 years from the date of issuance of the

cheque. 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 SCC 283:

(2021) 3 SCC (Civ) 25: (2021) 2 SCC (Cri) 555: 2021 SCC OnLine SC 75

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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 principles
that the object of Chapter XVII of NIA is not only punitive but
also compensatory and restitutive. The provisions of NIA

of
envision a single window for criminal liability for the
dishonour of a cheque as well as civil liability for the
realisation of the cheque amount. It is also well settled that
there needs to be a consistent approach towards awarding
rt
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]”

47. The interest @ 9% per annum for 10 years on an amount

of ₹9 lacs would be ₹8,10,000/-, and the compensation of ₹6 lacs is

not excessive.

48. No other point was urged.

49. 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
6th March, 2026
(Nikita)

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