Kusum Raj vs Through His Lrs Rt on 27 July, 2026

Himachal Pradesh High Court

Kusum Raj vs Through His Lrs Rt on 27 July, 2026

                                                                                    2026:HHC:30730




     IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                              Cr. Revision No. 137 of 2012
                                              Reserved on: 16.07.2026




                                                                                   .

                                              Date of Decision: 27.7.2027





    Kusum Raj                                                                    ...Petitioner

                                           Versus




                                                    of
    Ram Chander (since deceased)
    through his LRs     rt                                               ...Respondents


    Coram

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

    For the Petitioner                :         Mr Malay Kaushal, Advocate, Legal



                                                Aid Counsel.
    For Respondents                   :         Mr Sandeep Sharma, Advocate, for
                                                respondents No.1(a) and 1(b)




                                      :         Mr Ajit Sharma, Deputy Advocate
                                                General, for respondent No.2/State.





    Rakesh Kainthla, Judge

The present revision is directed against the judgment

dated 31.05.2012, passed by the learned Sessions Judge, Mandi,

District Mandi, H.P. (learned Appellate Court), vide which the

judgment of conviction dated 08.05.2008 and order of sentence

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

::: Downloaded on – 27/07/2026 20:34:15 :::CIS
2

2026:HHC:30730

dated 09.05.2008, passed by the learned Additional Chief Judicial

Magistrate, Court No.1, Mandi (learned Trial Court) were upheld.

.

(The parties shall hereinafter be referred to in the same manner as

they were arrayed before the learned Trial Court for convenience).

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

revision are that the complainant had filed a complaint before

of
the learned Trial Court against the accused for the commission of

an offence punishable under Section 138 of the Negotiable
rt
Instruments (NI Act). It was asserted that the complainant was

selling electronic goods at Jail Road, Mandi Town, District

Mandi, H.P. in the name and style of M/S Rama Electronics. The

accused had purchased the goods worth ₹1,65,525/- from the

complainant on credit. He issued a cheque of ₹1,65,525/- to

repay the money. The complainant presented the cheque at his

bank, but it was dishonoured with an endorsement ‘exceeds

arrangement and drawer’s address differ’. The complainant

issued a notice to the accused, asking him to repay the money

within 15 days of the receipt of the notice. The notice was duly

served upon the accused, but the accused failed to repay the

::: Downloaded on – 27/07/2026 20:34:15 :::CIS
3
2026:HHC:30730

money. Hence, the complaint was filed before the learned trial

Court against the accused, seeking action against him as per law.

.

3. Learned Trial Court found sufficient reasons to

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

accusation was put to him for the commission of an offence

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

of
not guilty and claimed to be tried.

4. The complainant examined himself (CW1), Raj Kumar
rt
Sharma (CW-2), and Ved Kumar (CW3) to prove his complaint.

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

313 of the Code of Criminal Procedure (CrPC), stated that he had

issued a blank cheque in favour of the complainant’s son. He had

no dealings with the complainant and had not taken any material

from him. He admitted that he had received the notice. The Bank

Manager had telephoned him, and he replied that payment was

not to be made. He was liable to pay the money but not the

money mentioned in the cheque. He examined himself (DW-1).

6. Learned Trial Court held that the accused had not

disputed his signatures on the cheque and the issuance of the

cheque. Therefore, a presumption arose that the cheque was

::: Downloaded on – 27/07/2026 20:34:15 :::CIS
4
2026:HHC:30730

issued for consideration to discharge the debt/liability. The

statement of the accused was not sufficient to rebut the

.

presumption attached to the cheque. The plea taken by him that

he had a dealing with a complainant’s son and not with a

complainant was not proved. The cheque was dishonoured with

an endorsement ‘exceeds arrangement and drawer’s address

of
differ’, which attracted the provisions of Section 138 of the NI

Act. The notice was duly served upon the accused, and the
rt
accused had not repaid the money to the complainant. All the

ingredients of the commission of an offence punishable under

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

Trial Court convicted the accused of the commission of an

offence punishable under Section 138 of the NI Act and sentenced

him to undergo simple imprisonment for six months and pay a

compensation of ₹50,000/-.

7. Being aggrieved by the judgment and order passed by

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

decided by the learned Sessions Judge, Mandi, District Mandi,

H.P. (learned Appellate Court). The learned Appellate Court

concurred with the findings recorded by the learned Trial Court

::: Downloaded on – 27/07/2026 20:34:15 :::CIS
5
2026:HHC:30730

that the issuance of the cheque was not disputed. The

complainant was the sole proprietor of M/s Rama Electronics.

.

The accused admitted that he used to deal with M/S Rama

Electronics. The cheque carried with it a presumption that it was

issued for consideration to discharge debt/liability and the

accused failed to rebut the presumption. There was no infirmity

of
in the judgment and order passed by the learned Trial Court.

Hence, the appeal was dismissed.

8.
rt
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 erred in

appreciating the material on record. The statement made by the

accused under Section 313 of the CrPC cannot form the sole basis

for conviction. The presumption under Section 118(a) and Section

139 of the NI Act is rebuttable, and the material on record was

sufficient to rebut the presumption. Learned Courts below erred

in holding that the presumption was not rebutted. Therefore, it

was prayed that the present revision be allowed and the

judgments and order passed by learned Courts below be set aside.

::: Downloaded on – 27/07/2026 20:34:15 :::CIS
6

2026:HHC:30730

9 I have heard Mr Malay Kaushal, learned Legal Aid

Counsel, for the petitioner/accused, Mr Sandeep Sharma, learned

.

counsel for the respondents 1(a) and 1(b), and Mr Ajit Sharma,

learned Deputy Advocate General, for the respondent No.3/State.

10. Mr Malay Kaushal, learned Legal Aid Counsel for the

petitioner/accused, submitted that the learned Courts below

of
erred in appreciating the material on record. The plea taken by

the accused that he had issued a blank signed cheque in favour of
rt
the complainant’s son was highly probable. The complainant had

not produced the bills to show the amount due to him, and the

learned Courts below erred in relying upon the presumption to

hold that the cheque was issued for consideration. The accused

can rebut the presumption by preponderance of probability, and

the evidence of the accused and cross-examination of the

complainant was sufficient to rebut 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 upon judgments of the Hon’ble Supreme Court in Sumeti

Vij v. Paramount Tech Fab Industries (2022) 15 SCC 689 and Rajesh

Jai vs. Ajay Singh (2023) 10 SCC 148 in support of his submissions.

::: Downloaded on – 27/07/2026 20:34:15 :::CIS
7

2026:HHC:30730

11. Mr Sandeep Sharma, learned counsel for respondent

No.1(a) and 1(b), submitted that the issuance of the cheque was

.

not disputed, and a presumption would arise that the cheque was

issued for consideration to discharge the debt/liability. The

burden would shift upon the accused to rebut the presumption.

The accused had failed to rebut the presumption by leading

of
satisfactory evidence. The Court should not interfere with the

finding of fact recorded by the learned Courts below while
rt
exercising the revisional jurisdiction. Therefore, he prayed that

the present revision be dismissed. He relied upon the judgment

of the Hon’ble Supreme Court in Kishan Rao v. Shankargouda

(2018) (8) SCC 165 in support of his submission.

12. Mr Ajit Sharma, learned Deputy Advocate General, for

the respondent No.2/State submitted that the dispute is between

the private parties and the State has no submissions to make.

13. I have given considerable thought to the submissions

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

14 . 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

::: Downloaded on – 27/07/2026 20:34:15 :::CIS
8
2026:HHC:30730

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

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

.

207-

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

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

of
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
rt
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.

15. 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

::: Downloaded on – 27/07/2026 20:34:15 :::CIS
9
2026:HHC:30730

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

15. It would be apposite to refer to the judgment of this

.

Court in Amit Kapoor v. Ramesh Chander [Amit Kapoor v.

Ramesh Chander, (2012) 9 SCC 460: (2012) 4 SCC (Civ) 687:

(2013) 1 SCC (Cri) 986], where scope of Section 397 has
been considered and succinctly explained as under: (SCC p.

475, paras 12-13)
“12. Section 397 of the Code vests the court with the
power to call for and examine the records of an

of
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
rt 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 itself should not
lead to injustice ex facie. Where the Court is dealing
with the question as to whether the charge has been

::: Downloaded on – 27/07/2026 20:34:15 :::CIS
10
2026:HHC:30730

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.”

16 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

of
reappreciate the evidence and come to its conclusions in the

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

rt
“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 the Sessions
Judge in appeal, unless any glaring feature is

::: Downloaded on – 27/07/2026 20:34:15 :::CIS
11
2026:HHC:30730

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

possible. The following has been laid down in para 14: (SCC
p. 135)
“14. … Unless the order passed by the Magistrate is

perverse or the view taken by the court is wholly
unreasonable or there is non-consideration of any
relevant material or there is palpable misreading of
records, the Revisional Court is not justified in

setting aside the order, merely because another view
is possible. The Revisional Court is not meant to act

as an appellate court. The whole purpose of the
revisional jurisdiction is to preserve the power in the
court to do justice in accordance with the principles

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

::: Downloaded on – 27/07/2026 20:34:15 :::CIS
12
2026:HHC:30730

capriciously, the courts may not interfere with the
decision in exercise of their revisional jurisdiction.”

17. 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.”

18. 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.

::: Downloaded on – 27/07/2026 20:34:15 :::CIS
13

2026:HHC:30730

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
concurrent findings of the Trial Court and the Sessions

.

Court.

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

parameters laid down by the Hon’ble Supreme Court.

20. The ingredients of the offence punishable under

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

Court in Kaveri Plastics v. Mahdoom Bawa Bahrudeen Noorul, 2025
rt
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 account for discharge in whole/in part of any debt or

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

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

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

::: Downloaded on – 27/07/2026 20:34:15 :::CIS
14

2026:HHC:30730

21. The accused Kusum Raj (DW1) stated that he had

dealings with Khem Chand. He used to take electronic items from

.

Rama Electronics, and he was to pay ₹1,50,000/-. He issued a

cheque of ₹1,50,000/-, in favour of Rama Electronics, but it was

dishonoured by the bank because of overwriting. Khem Chand

demanded another cheque, and he issued a cheque of ₹1,65,525/-

of
in favour of Rama Electronics. The cheque was dishonoured

because he had insufficient funds in his account to honour the
rt
cheque. He paid ₹1,00,000/- in cash to Rama Electronics, and a

receipt was signed by Khem Chand. He had also paid ₹50,000/-

by means of two bank drafts of ₹25,000/- each.

22. The statement of the accused shows that he had

dealings with Rama Electronics and he had issued a cheque of

₹1,65,525/- in favour of Rama Electronics. The accused claimed

that he had dealings with Khem Chand and not with the

complainant. However, that is not material because Ved Kumar

Sharma (CW-3) specifically stated that Ram Chand Sharma, the

complainant, was the sole proprietor of Rama Electronics.

Therefore, the issuance of the cheque and signatures on the

cheque were not disputed.

::: Downloaded on – 27/07/2026 20:34:15 :::CIS
15

2026:HHC:30730

23. Learned Courts below have rightly held that once the

issuance of the cheque and the signatures on the cheque were

.

admitted, a presumption would be triggered under Section 118(a)

and 139 of the NI Act that the cheque was issued for consideration

to discharge the debt/liability. It was laid down by the Hon’ble

Supreme Court in APS Forex Services (P) Ltd. v. Shakti International

of
Fashion Linkers (2020) 12 SCC 724, that when the issuance of a

cheque and signature on the cheque are not disputed, a
rt
presumption would arise that the cheque was issued in discharge

of the legal liability. It was observed: –

“7.2. What is emerging from the material on record is that
the issuance of a cheque by the accused and the signature

of the accused on the said cheque are not disputed by the
accused. The accused has also not disputed that there were
transactions between the parties. Even as per the

statement of the accused, which was recorded at the time
of the framing of the charge, he has admitted that some

amount was due and payable. However, it was the case on
behalf of the accused that the cheque was given by way of
security, and the same has been misused by the

complainant. However, nothing is on record that in the
reply to the statutory notice, it was the case on behalf of
the accused that the cheque was given by way of security.
Be that as it may, however, it is required to be noted that
earlier the accused issued cheques which came to be
dishonoured on the ground of “insufficient funds” and
thereafter a fresh consolidated cheque of ₹9,55,574 was
given which has been returned unpaid on the ground of
“STOP PAYMENT”. Therefore, the cheque in question was

::: Downloaded on – 27/07/2026 20:34:15 :::CIS
16
2026:HHC:30730

issued for the second time. Therefore, once the accused
has admitted the issuance of a cheque which bears his
signature, there is a presumption that there exists a legally
enforceable debt or liability under Section 139 of the NI

.

Act. However, such a presumption is rebuttable in nature,
and the accused is required to lead evidence to rebut such a
presumption. The accused was required to lead evidence
that the entire amount due and payable to the complainant

was paid.

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

of
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
rt
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
particularly, the cheque in question was issued for the

second time after the earlier cheques were dishonoured.
Therefore, both the courts below have materially erred in
not properly appreciating and considering the

presumption in favour of the complainant that there exists
a legally enforceable debt or liability as per Section 139 of
the NI Act. It appears that both the learned trial court as
well as the High Court have committed an error in shifting
the burden upon the complainant to prove the debt or
liability, without appreciating the presumption under
Section 139 of the NI Act. As observed above, Section 139 of
the Act is an example of a reverse onus clause and
therefore, once the issuance of the cheque has been

::: Downloaded on – 27/07/2026 20:34:15 :::CIS
17
2026:HHC:30730

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.”

24. The presumption under Section 139 of the NI Act was

explained by the Hon’ble Supreme Court in N. Vijay Kumar v.

Vishwanath Rao N., 2025 SCC OnLine SC 873 as under:

of
“5. The NI Act raises two presumptions, one under Section
118 and the other in Section 139 thereof. The Sections read
as under:

rt “118. Presumptions as to negotiable instruments.

— Until the contrary is proved, the following

presumptions shall be made: —

(a) of consideration: –that every negotiable
instrument was made or drawn for
consideration, and that every such

instrument, when it has been accepted,
indorsed, negotiated or transferred, was
accepted, indorsed, negotiated or transferred

for consideration;

xxx

139. Presumption in favour of the holder. — It shall be
presumed, unless the contrary is proved, that the

holder of a cheque received the cheque of the nature
referred to in section 138 for the discharge, in whole or
in part, of any debt or other liability.”

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

::: Downloaded on – 27/07/2026 20:34:15 :::CIS
18
2026:HHC:30730

probable defence. This Court, through various
pronouncements, has consistently clarified the nature and
extent of these presumptions and the standard of proof
required by the accused to rebut them. We may consider a

.

few such pronouncements.

6.1. In Mallavarapu Kasivisweswara Rao v. Thadikonda
Ramulu Firm (2008) 7 SCC 655, this Court observed as

under:

“17. Under Section 118(a) of the Negotiable
Instruments Act, the court is obliged to presume,

of
until the contrary is proved, that the promissory
note was made for consideration. It is also a settled
position that the initial burden in this regard lies on
rtthe defendant to prove the non-existence of
consideration by bringing on record such facts and
circumstances which would lead the court to believe

the non-existence of the consideration either by
direct evidence or by preponderance of probabilities
showing that the existence of consideration was
improbable, doubtful or illegal. In this connection,

reference may be made to a decision of this Court in
Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal
[(1999) 3 SCC 35]. In para 12 of the said decision, this
Court observed as under: (SCC pp. 50-51)

“12. Upon consideration of various judgments

as noted hereinabove, the position of law
which emerges is that once execution of the
promissory note is admitted, the presumption

under Section 118(a) would arise that it is
supported by a consideration. Such a
presumption is rebuttable. The defendant can
prove the non-existence of a consideration by
raising a probable defence. If the defendant is
proved to have discharged the initial onus of
proof showing that the existence of consideration
was improbable or doubtful or the same was
illegal, the onus would shift to the plaintiff who

::: Downloaded on – 27/07/2026 20:34:15 :::CIS
19
2026:HHC:30730

will be obliged to prove it as a matter of fact and
upon its failure to prove would disentitle him to
the grant of relief on the basis of the negotiable
instrument. The burden upon the defendant of

.

proving the non-existence of the consideration
can be either direct or by bringing on record the
preponderance of probabilities by reference to the
circumstances upon which he relies. In such an

event, the plaintiff is entitled under the law to
rely upon all the evidence led in the case,
including that of the plaintiff as well. In cases

of
where the defendant fails to discharge the
initial onus of proof by showing the
nonexistence of the consideration, the
rt plaintiff would invariably be held entitled to
the benefit of the presumption arising under
Section 118(a) in his favour. The court may not

insist upon the defendant to disprove the
existence of consideration by leading direct
evidence, as the existence of negative
evidence is neither possible nor contemplated

and even if led, is to be seen with a doubt. The
bare denial of the passing of the consideration
apparently does not appear to be any defence.

Something probable has to be brought on
record for getting the benefit of shifting the

onus of proving to the plaintiff. To disprove
the presumption, the defendant has to bring
on record such facts and circumstances upon

consideration of which the court may either
believe that the consideration did not exist or
its nonexistence was so probable that a
prudent man would, under the circumstances
of the case, act upon the plea that it did not
exist.”

From the above decision of this Court, it is pellucid that
if the defendant is proved to have discharged the initial
onus of proof showing that the existence of

::: Downloaded on – 27/07/2026 20:34:15 :::CIS
20
2026:HHC:30730

consideration was improbable or doubtful or the same
was illegal, the onus would shift to the plaintiff who
would be obliged to prove it as a matter of fact and
upon its failure to prove would disentitle him to the

.

grant of relief on the basis of the negotiable
instrument. It is also discernible from the above
decision that if the defendant fails to discharge the
initial onus of proof by showing the non-existence of

the consideration, the plaintiff would invariably be held
entitled to the benefit of the presumption arising under
Section 118(a) in his favour.” (Emphasis Supplied)

of
6.2. In Kumar Exports v. Sharma Carpets (2009) 2 SCC 513,
this Court examined the presumptions raised by the N.I.
Act, and held as follows:

rt”18. Applying the definition of the word “proved” in
Section 3 of the Evidence Act to the provisions of

Sections 118 and 139 of the Act, it becomes evident
that in a trial under Section 138 of the Act a
presumption will have to be made that every
negotiable instrument was made or drawn for

consideration and that it was executed for discharge
of debt or liability once the execution of negotiable
instrument is either proved or admitted. As soon as
the complainant discharges the burden to prove that the

instrument, say a note, was executed by the accused, the
rules of presumptions under Sections 118 and 139 of the

Act help him shift the burden on the accused. The
presumptions will live, exist and survive and shall end
only when the contrary is proved by the accused, that is,

the cheque was not issued for consideration and in
discharge of any debt or liability. A presumption is not
in itself evidence, but only makes a prima facie case
for a party for whose benefit it exists.

19. The use of the phrase “until the contrary is
proved” in Section 118 of the Act and use of the
words “unless the contrary is proved” in Section 139
of the Act read with definitions of “may presume”

::: Downloaded on – 27/07/2026 20:34:15 :::CIS
21

2026:HHC:30730

and “shall presume” as given in Section 4 of the
Evidence Act, makes it at once clear that
presumptions to be raised under both the provisions
are rebuttable. When a presumption is rebuttable, it

.

only points out that the party on whom lies the duty
of going forward with evidence, on the fact
presumed and when that party has produced
evidence fairly and reasonably tending to show that

the real fact is not as presumed, the purpose of the
presumption is over.

of

20. The accused in a trial under Section 138 of the
Act has two options. He can either show that
consideration and debt did not exist or that, under
the particular circumstances of the case, the non-
rt
existence of consideration and debt is so probable
that a prudent man ought to suppose that no
consideration and debt existed. To rebut the statutory

presumptions, an accused is not expected to prove his
defence beyond a reasonable doubt, as is expected of the
complainant in a criminal trial. The accused may
adduce direct evidence to prove that the note in

question was not supported by consideration and
that there was no debt or liability to be discharged
by him. However, the court need not insist in every

case that the accused should disprove the non-
existence of consideration and debt by leading direct

evidence because the existence of negative evidence
is neither possible nor contemplated. At the same
time, it is clear that bare denial of the passing of the

consideration and existence of debt, apparently,
would not serve the purpose of the accused.
Something which is probable has to be brought on
record for getting the burden of proof shifted to the
complainant. To disprove the presumptions, the
accused should bring on record such facts and
circumstances, upon consideration of which, the court
may either believe that the consideration and debt did
not exist or their non-existence was so probable that a

::: Downloaded on – 27/07/2026 20:34:15 :::CIS
22
2026:HHC:30730

prudent man would, under the circumstances of the
case, act upon the plea that they did not exist. Apart
from adducing direct evidence to prove that the note in
question was not supported by consideration or that he

.

had not incurred any debt or liability, the accused may
also rely upon circumstantial evidence, and if the
circumstances so relied upon are compelling, the burden
may likewise shift again onto the complainant. The

accused may also rely upon presumptions of fact, for
instance, those mentioned in Section 114 of the
Evidence Act, to rebut the presumptions arising

of
under Sections 118 and 139 of the Act.

21. The accused also has an option to prove the
nonexistence of consideration and debt or liability
rt either by letting in evidence or, in some clear and
exceptional cases, from the case set out by the
complainant, that is, the averments in the

complaint, the case set out in the statutory notice
and evidence adduced by the complainant during the
trial. Once such rebuttal evidence is adduced and
accepted by the court, having regard to all the

circumstances of the case and the preponderance of
probabilities, the evidential burden shifts back to
the complainant and, thereafter, the presumptions

under Sections 118 and 139 of the Act will not again
come to the complainant’s rescue.” (Emphasis

Supplied)
6.3. A three-Judge Bench of this Court in Rangappa (supra)
had the occasion to consider Section 139 elaborately. The

Court reiterated that where the signature on the cheque is
acknowledged, a presumption has to be raised that the
cheque pertained to a legally enforceable debt or liability;
however, this presumption is of a rebuttable nature and
the onus is then on the accused to raise a probable defence.
It was further stated that:

“27. Section 139 of the Act is an example of a reverse
onus clause that has been included in furtherance of

::: Downloaded on – 27/07/2026 20:34:15 :::CIS
23
2026:HHC:30730

the legislative objective of improving the credibility
of negotiable instruments. While Section 138 of the
Act specifies a strong criminal remedy in relation to
the dishonour of cheques, the rebuttable

.

presumption under Section 139 is a device to prevent
undue delay in the course of litigation. However, it
must be remembered that the offence made
punishable by Section 138 can be better described as

a regulatory offence since the bouncing of a cheque
is largely in the nature of a civil wrong whose impact
is usually confined to the private parties involved in

of
commercial transactions. In such a scenario, the test
of proportionality should guide the construction and
interpretation of reverse onus clauses, and the
rtdefendant-accused cannot be expected to discharge
an unduly high standard of proof.

28. In the absence of compelling justifications, reverse

onus clauses usually impose an evidentiary burden and
not a persuasive burden. Keeping this in view, it is a
settled position that when an accused has to rebut the
presumption under Section 139, the standard of proof

for doing so is that of “preponderance of probabilities”.

Therefore, if the accused is able to raise a probable
defence which creates doubts about the existence of a

legally enforceable debt or liability, the prosecution can
fail. As clarified in the citations, the accused can rely on

the materials submitted by the complainant in order to
raise such a defence, and it is conceivable that in some
cases the accused may not need to adduce evidence of

his/her own.”

6.4. T.S. Thakur J., (as his lordship then was) in his
supplementing opinion in Vijay v. Laxman (2013) 3 SCC 86,
observed as under:

“20. The High Court has rightly accepted the version
given by the respondent-accused herein. We say so
for more than one reason. In the first place, the
story of the complainant that he advanced a loan to

::: Downloaded on – 27/07/2026 20:34:15 :::CIS
24
2026:HHC:30730

the respondent-accused is unsupported by any
material, let alone any documentary evidence that
any such loan transaction had ever taken place. So
much so, the complaint does not even indicate the

.

date on which the loan was demanded and advanced.
It is blissfully silent about these aspects, thereby
making the entire story suspect. We are not
unmindful of the fact that there is a presumption

that the issue of a cheque is for consideration.
Sections 118 and 139 of the Negotiable Instruments
Act make that abundantly clear. That presumption

of
is, however, rebuttable in nature. What is most
important is that the standard of proof required for
rebutting any such presumption is not as high as
rt that required of the prosecution. So long as the
accused can make his version reasonably probable,
the burden of rebutting the presumption would

stand discharged. Whether or not it is so in a given
case depends upon the facts and circumstances of
that case. It is trite that the courts can take into
consideration the circumstances appearing in the

evidence to determine whether the presumption
should be held to be sufficiently rebutted. The legal
position regarding the standard of proof required

for rebutting a presumption is fairly well settled by a
long line of decisions of this Court.”

6.5. This Court, in the case of Baslingappa v. Mudibasappa
(2019) 5 SCC 418, summarised the principles on Sections
118(a) and 139 of the N.I. Act. The same is reproduced with

profit as under:

“25. We, having noticed the ratio laid down by this
Court in the above cases on Sections 118(a) and 139,
now summarise the principles enumerated by this
Court in the following manner:

25.1. Once the execution of a cheque is admitted,
Section 139 of the Act mandates a presumption that

::: Downloaded on – 27/07/2026 20:34:15 :::CIS
25
2026:HHC:30730

the cheque was for the discharge of any debt or
other liability.

25.2. The presumption under Section 139 is a

.

rebuttable presumption, and the onus is on the

accused to raise the probable defence. The standard
of proof for rebutting the presumption is that of
preponderance of probabilities.

25.3. To rebut the presumption, it is open for the
accused to rely on evidence led by him, or the
accused can also rely on the materials submitted by

of
the complainant in order to raise a probable defence.
Inference of preponderance of probabilities can be
drawn not only from the materials brought on
rt record by the parties but also by reference to the
circumstances upon which they rely.

25.4. That it is not necessary for the accused to come

into the witness box in support of his defence;
Section 139 imposed an evidentiary burden and not a
persuasive burden.

25.5. It is not necessary for the accused to come into

the witness box to support his defence.”
6.6. Recently, a coordinate Bench of this Court in Rajaram
v. Maruthachalam (2023) 16 SCC 125, through Gavai J.,

observed as under:

“27. It can thus be seen that this Court has held that
once the execution of a cheque is admitted, Section 139
of the N.I. Act mandates a presumption that the cheque

was for the discharge of any debt or other liability. It
has, however, been held that the presumption under
Section 139 is a rebuttable presumption and the onus is
on the accused to raise the probable defence. The
standard of proof for rebutting the presumption is that
of preponderance of probabilities. It has further been
held that to rebut the presumption, it is open for the
accused to rely on evidence led by him, or the accused
can also rely on the materials submitted by the

::: Downloaded on – 27/07/2026 20:34:15 :::CIS
26
2026:HHC:30730

complainant in order to raise a probable defence. It has
been held that inference of preponderance of
probabilities can be drawn not only from the materials
brought on record by the parties but also by reference

.

to the circumstances upon which they rely.”

7. The position of law, as is evident from the above, is
clear.

25. Therefore, the Court has to start with the

presumption that the cheque was issued for consideration to

of
discharge the debt/liability and the burden would be upon the

accused to rebut the presumption.

rt

26. In the present case, the accused claimed that he had

returned the amount by paying ₹1,00,000/- in cash and by the

demand drafts of ₹25,000/-each. He relied upon the receipt

(Mark ‘X’) to show the payment. This receipt is dated 24.10.2003,

whereas the cheque was issued on 17.03.2004. Thus, the payment

was made before the issuance of the cheque, and the payment

cannot be construed to be towards the amount mentioned in the

cheque. Thus, the learned courts below had rightly rejected the

receipt (Mark-X).

27. The accused relied upon the certificate dated

08.03.2008, issued by Kangra Central Co-operative Bank,

mentioning that the demand drafts of ₹ 25,000/- each were

::: Downloaded on – 27/07/2026 20:34:15 :::CIS
27
2026:HHC:30730

purchased by the accused on 27.05.2004; this document does not

show that the demand drafts were paid to Rama Electronics or

.

were presented by Rama Electronics. Mere purchase of the

demand drafts without any evidence of further delivery to Rama

Electronics would not show that the amount was paid by the

accused to Rama Electronics.

of

28. It was nowhere suggested to the complainant Ram

Chand (CW-1) in his cross-examination that an amount of
rt
₹1,00,000/- was paid in cash and two demand drafts of ₹

25,000/- were handed over towards the payment. A party has a

duty to put so much of the case to the witness as concerns him in

his cross-examination. It was laid down by the Calcutta High

Court in A.E.G. Carapiet v. A.Y. Derderian, 1960 SCC OnLine Cal 44,

that the counsel is bound to put to each of his opponent’s

witnesses so much of his case as concerns his particular witness

or in which that witness had any share. It was observed:

“9. The law is clear on the subject. Wherever the opponent
has declined to avail himself of the opportunity to put his
essential and material case in cross-examination, it must
follow that he believed that the testimony given could not
be disputed at all. It is wrong to think that this is merely a
technical rule of evidence. It is a rule of essential justice. It
serves to prevent surprise at trial and miscarriage of

::: Downloaded on – 27/07/2026 20:34:15 :::CIS
28
2026:HHC:30730

justice because it gives notice to the other side of the actual
case that is going to be made when the turn of the party on
whose behalf the cross-examination is being made comes
to give and lead evidence by producing witnesses. It has

.

been stated on high authority of the House of Lords that
this much a counsel is bound to do when cross-examining
is that he must put to each of his opponent’s witnesses in
turn, so much of his own case as concerns that particular

witness or in which that witness had any share. If he asks
no question with regard to this, then he must be taken to
accept the plaintiff’s account in its entirety. Such failure

of
leads to miscarriage of justice, first by springing surprise
upon the party when he has finished the evidence of his
witnesses and when he has no further chance to meet the
new case made which was never put and secondly, because
rt
such subsequent testimony has no chance of being tested
and corroborated.

10. On this point the most important and decisive authority
is Browne v. Dunn, reported in (1893) 6 R 67. It is a
decision of the House of Lords where Lord Herschell, L.C.,
Lord Halsbury, Lord Morris and Lord Bowen were all

unanimous on this particular point. Lord Chancellor
Herschell, at page 70 of the report, observed:

“Now, my Lords, I cannot help saying that it seems to

me to be absolutely essential to the proper conduct of
a cause where it is intended to suggest that a witness

is not speaking the truth on a particular point, to
direct his attention to the fact, by some questions put
in cross-examination showing that imputation is

intended to be made, and not to take his evidence and
pass is by as a matter altogether unchallenged and
then, when it is impossible for him to explain, as
perhaps he might have been able to do if such
questions had been put to him, the circumstances
which it is suggested indicate that the story he tells
ought not to be believed, to argue that he is a witness
unworthy of credit. My Lords, I have always
understood that if you intend to impeach a witness

::: Downloaded on – 27/07/2026 20:34:15 :::CIS
29
2026:HHC:30730

you are bound, whilst he is in the box, to give him an
opportunity of making any explanation which is open
to him; and, as it seems to me, that is not only a rule
of professional practice in the conduct of a case, but is

.

essential to fair play and fair dealing with witnesses.”

11. Lord Halsbury, the other member of the House of Lords,
at page 76 of the same report said:

“My Lords, with regard to the manner in which the
evidence was given in this case, I cannot too heartily
express my concurrence with the Lord Chancellor as

of
to the mode in which a trial should be conducted. To
my mind, nothing would be more absolutely unjust
than not to cross-examine witnesses upon evidence
which they have given, so as to give them notice, and
rt
to give them an opportunity of explanation, and an
opportunity very often to defend their own character,

and, not having given them such an opportunity, to
ask the jury afterwards to disbelieve what they have
said, although not one question has been directed
either to their credit or to the accuracy of the facts

they have deposed to.”

12. In fact Lord Halsbury described the situation as a
“perfect outrage” at page 77 of the said report. After

quoting the evidence, the learned Lord said:

“My Lords, it seems to me that it would be a perfect

outrage and violation of the proper conduct of a case
at Nisi Prius if, after the learned counsel had declined
to cross-examine the witness upon that evidence, it is

not to be taken as a fact that witness did complain of
the plaintiff’s proceedings, that he did receive advice,
that he went round to Mr. Dunn as a solicitor, and that
he did sign that retainer, the whole case on the other
side being that the retainer was a mere counterfeit
proceeding and not a genuine retainer at all.”

13. The same view is expressed in the 13th Edition of Odger
on Pleading and Practice at page 261 and the 9th Edition of
Phipson on Evidence at pages 497-98.”

::: Downloaded on – 27/07/2026 20:34:15 :::CIS
30

2026:HHC:30730

29. A similar view was taken in Ravinder Kumar Sharma v.

State of Assam, (1999) 7 SCC 435: 1999 SCC OnLine SC 887, wherein

.

it was held: –

29. The High Court was, in our opinion, wrong in
concluding that there was the absence of reasonable and

probable cause because the action, in view of the
notification of the Central Government, was unauthorised
or illegal. Illegality does not by itself lead to such a

of
conclusion. Further, there is no truth in the appellant’s
case that on 1-10-1977 at the time of seizure, he informed
Defendants 2 and 3 about the gazette notification. The
point is that such an assertion was not made even in the
rt
bail application moved after arrest. As to the contention
that the appellant and the owners of paddy showed

permits to Defendants 2 and 3, we do not find sufficient
pleading on this aspect. In any case, we find that no
question was put when the 2nd defendant was cross-

examined. As pointed out by Sarkar on Evidence (15th Edn.,

1999, Vol. 2, p. 2179) in the context of Section 138 of the
Evidence Act,
“Generally speaking, when cross-examining, a

party’s counsel should put to each of his
opponent’s witnesses, in turn, so much of his own

case as concerns that particular witness or in which
he had a share.”

30. This position was reiterated in CBI v. Mohd. Parvez

Abdul Kayuum, (2019) 12 SCC 1: (2019) 4 SCC (Cri) 32: 2019 SCC

OnLine SC 832, wherein it was observed:

155. It was also urged that Mohmed Parvez was produced
at Civil Hospital at the time when the statement was
recorded, rendering the confessional statement
unreliable. No such question during his cross-

::: Downloaded on – 27/07/2026 20:34:15 :::CIS
31

2026:HHC:30730

examination has been put to PW 21 as to the presence of
Parvez Sheikh, A-9, in hospital at 10 a.m. A-9 was
required to be produced before the Magistrate on 9-6-
2003, i.e. within 48 hours as required under Section 32 of

.

POTA. Neither did he state so in the written retraction of
the confessional statement that he was at the time in the
hospital when the confessional statement is said to have
been recorded. It was necessary to discredit the recording

of the confession by PW 21 to put it in the cross-
examination and to seek his explanation. Cross-
examination is not a matter of procedure but a matter of

of
substance as held in Maroti Bansi Teli v. Radhabai [Maroti
Bansi Teli v. Radhabai, 1943 SCC OnLine MP 128: AIR 1945
Nag 60], Karnidan Sarda v. Sailaja Kanta Mitra [Karnidan
Sarda v. Sailaja Kanta Mitra, 1940 SCC OnLine Pat 288: AIR
rt
1940 Pat 683], A.E.G. Carapiet v. A.Y. Derderian [A.E.G.
Carapiet v. A.Y. Derderian, 1960 SCC OnLine Cal 44: AIR 1961

Cal 359] and Jai Shankar Prasad v. State of Bihar [Jai
Shankar Prasad v. State of Bihar, (1993) 2 SCC 597: 1993 SCC
(L&S) 646: AIR 1993 SC 1906; Bhoju Mandal v. Debnath
Bhagat, AIR 1963 SC 1906].

31. Thus, the failure to put the payment to the

complainant in his cross-examination will show that the accused

had abandoned this version.

32. The statement of account of Rama Electronics

(Ext.CW3/B) also does not show the deposit of the demand draft

of ₹25,000/- in the year 2004. Thus, the version of the accused

that the demand drafts of ₹25,000/- each were paid to Rama

Electronics is not acceptable.

::: Downloaded on – 27/07/2026 20:34:15 :::CIS
32

2026:HHC:30730

33. The accused Kusum Dass (DW-1) stated that Rama

Electronics had promised free service to the customer, but no

.

free service was provided. Hence, he had to spend ₹ 18,000/-. The

defective material worth ₹30,000/- is lying with him. This part

of the statement will not assist the accused, as this was not

suggested to the complainant. No document was produced to

of
show that free service was to be provided by Rama Electronics

and not by the manufacturer. No proof of the payment of
rt
₹18,000/- towards the free service was produced. The accused

stated that he had the defective material worth ₹30,000/- but he

has not furnished the details of the product. He had not sent any

notice to the complainant regarding the charges for free service

or the cost of defective material. Hence, the amount claimed by

the accused cannot be deducted.

34. There is no other material to show that the cheque

was not issued for consideration. The submission that the

accused has to prove his defence on the preponderance of

probability is unexceptionable, but does not apply to the present

case because of the admission of the dealing between the

complainant and the accused and issuance of the cheque of

::: Downloaded on – 27/07/2026 20:34:15 :::CIS
33
2026:HHC:30730

₹1,65,525/- in the name of Rama Electronics. Hence, the

judgments of Sumeti Vij (supra) and Rajesh Jain (supra) do not

.

apply to the present case.

35. The complainant stated that the cheque was

dishonoured with an endorsement ‘exceeds arrangement and

drawer’s address differs’. Raj Kumar Sharma (CW2) stated that

of
the cheque was received for collection, but there was insufficient

amount in the bank. Therefore, the cheque was dishonoured. The
rt
accused stated in his statement recorded under Section 313 of the

CrPC that he had received a call from the bank regarding the

receipt of the cheque and he had asked the bank not to make the

payment; therefore, the dishonour of the cheque is not disputed.

36. It was submitted that the statement of the accused

recorded under Section 313 of the CrPC cannot be used for

recording conviction. The submission is only stated to be

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

of Maharashtra v. Sukhdev Singh, (1992) 3 SCC 700: 1992 SCC (Cri)

705: 1992 SCC OnLine SC 421 that the Courts can rely upon the

statement of the accused recorded under Section 313 of the Cr.P.C.

It was observed at page 742:

::: Downloaded on – 27/07/2026 20:34:15 :::CIS
34

2026:HHC:30730

“51. That brings us to the question of whether such a
statement recorded under Section 313 of the Code can
constitute the sole basis for conviction. Since no oath is
administered to the accused, the statements made by the

.

accused will not be evidence stricto sensu. That is why
sub-section (3) says that the accused shall not render
himself liable to punishment if he gives false answers.
Then comes sub-section (4), which reads:

“313. (4) The answers given by the accused may be
taken into consideration in such inquiry or trial, and

of
put in evidence for or against him in any other
inquiry into, or trial for, any other offence which
such answers may tend to show he has committed.”

Thus, the answers given by the accused in response to his
rt
examination under Section 313 can be taken into
consideration in such an inquiry or trial. This much is clear

on a plain reading of the above sub-section. Therefore,
though not strictly evidence, sub-section (4) permits that
it may be taken into consideration in the said inquiry or
trial. See State of Maharashtra v. R.B. Chowdhari (1967) 3

SCR 708: AIR 1968 SC 110: 1968 Cri LJ 95. This Court, in the
case of Hate Singh Bhagat Singh v. State of M.B. 1951 SCC
1060: 1953 Cri LJ 1933: AIR 1953 SC 468, held that an answer
given by an accused under Section 313 examination can be

used for proving his guilt as much as the evidence given by
a prosecution witness. In Narain Singh v. State of Punjab

(1963) 3 SCR 678: (1964) 1 Cri LJ 730, this Court held that if
the accused confesses to the commission of the offence
with which he is charged, the Court may, relying upon that

confession, proceed to convict him. To state the exact
language in which the three-Judge bench answered the
question, it would be advantageous to reproduce the
relevant observations at pages 684-685:

“Under Section 342 of the Code of Criminal
Procedure by the first sub-section, insofar as it is
material, the Court may at any stage of the enquiry
or trial and after the witnesses for the prosecution

::: Downloaded on – 27/07/2026 20:34:15 :::CIS
35
2026:HHC:30730

have been examined and before the accused is called
upon for his defence shall put questions to the
accused person for the purpose of enabling him to
explain any circumstance appearing in the evidence

.

against him. Examination under Section 342 is
primarily to be directed to those matters on which
evidence has been led for the prosecution to
ascertain from the accused his version or

explanation, if any, of the incident which forms the
subject-matter of the charge and his defence. By
sub-section (3), the answers given by the accused

of
may ‘be taken into consideration’ at the enquiry or
the trial. If the accused person in his examination under
Section 342 confesses to the commission of the offence
rtcharged against him the court may, relying upon that
confession, proceed to convict him, but if he does not
confess and in explaining circumstance appearing in

the evidence against him sets up his own version
and seeks to explain his conduct pleading that he
has committed no offence, the statement of the
accused can only be taken into consideration in its

entirety.” (emphasis supplied)
Sub-section (1) of Section 313 corresponds to sub-section
(1) of Section 342 of the old Code, except that it now

stands bifurcated in two parts with the proviso added
thereto clarifying that in summons cases where the

presence of the accused is dispensed with, his
examination under clause (b) may also be dispensed with.

Sub-section (2) of Section 313 reproduces the old sub-

section (4), asd the present sub-section (3) corresponds to
the old sub-section (2) except for the change necessitated
on account of the abolition of the jury system. The present
sub-section (4) with which we are concerned is a verbatim
reproduction of the old sub-section (3). Therefore, the
aforestated observations apply with equal force.”

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

Mohan Singh v. Prem Singh, (2002) 10 SCC 236: 2003 SCC (Cri) 1514:

::: Downloaded on – 27/07/2026 20:34:15 :::CIS
36

2026:HHC:30730

2002 SCC OnLine SC 933, that the statement made by the accused

under Section 313 Cr.P.C. can be used to lend credence to the

.

evidence led by the prosecution, but such statement cannot form

the sole basis for conviction. It was observed at page 244:

27. The statement made in defence by the accused under
Section 313 CrPC can certainly be taken aid of to lend
credence to the evidence led by the prosecution, but only a

of
part of such statement under Section 313 of the Code of
Criminal Procedure cannot be made the sole basis of his
conviction. The law on the subject is almost settled that
the statement under Section 313 CrPC of the accused can
rt
either be relied on in whole or in part. It may also be
possible to rely on the inculpatory part of his statement if

the exculpatory part is found to be false on the basis of the
evidence led by the prosecution. See Nishi Kant Jha v. State
of Bihar (1969) 1 SCC 347: AIR 1969 SC 422: (SCC pp. 357-58,
para 23)

“23. In this case, the exculpatory part of the
statement in Exhibit 6 is not only inherently
improbable but is contradicted by the other evidence.

According to this statement, the injury that the
appellant received was caused by the appellant’s

attempt to catch hold of the hand of Lal Mohan
Sharma to prevent the attack on the victim. This was
contradicted by the statement of the accused himself

under Section 342 CrPC to the effect that he had
received the injury in a scuffle with a herdsman. The
injury found on his body when he was examined by
the doctor on 13-10-1961 negatives of both these
versions. Neither of these versions accounts for the
profuse bleeding which led to his washing his clothes
and having a bath in River Patro, the amount of
bleeding and the washing of the bloodstains being so
considerable as to attract the attention of Ram

::: Downloaded on – 27/07/2026 20:34:15 :::CIS
37
2026:HHC:30730

Kishore Pandey, PW 17 and asking him about the
cause thereof. The bleeding was not a simple one as
his clothes all got stained with blood, as also his
books, his exercise book, his belt and his shoes. More

.

than that, the knife which was discovered on his
person was found to have been stained with blood
according to the report of the Chemical Examiner.
According to the post-mortem report, this knife

could have been the cause of the injuries on the
victim. In circumstances like these, there being enough
evidence to reject the exculpatory part of the statement

of
of the appellant in Exhibit 6, the High Court had acted
rightly in accepting the inculpatory part and piercing the
same with the other evidence to come to the conclusion
rtthat the appellant was the person responsible for the
crime.” (emphasis supplied)

38. It was laid down in Ramnaresh v. State of Chhattisgarh,

(2012) 4 SCC 257: (2012) 2 SCC (Cri) 382: 2012 SCC OnLine SC 213,

that the statement of the accused under Section 313 Cr.P.C., in so

far as it supports the prosecution’s case, can be used against him

for recording a conviction. It was observed at page 275: –

“52. It is a settled principle of law that the obligation to
put material evidence to the accused under Section 313
CrPC is upon the court. One of the main objects of

recording a statement under this provision of the CrPC is
to give an opportunity to the accused to explain the
circumstances appearing against him as well as to put
forward his defence, if the accused so desires. But once he
does not avail this opportunity, then consequences in law
must follow. Where the accused takes benefit of this
opportunity, then his statement made under Section 313
CrPC, insofar as it supports the case of the prosecution,

::: Downloaded on – 27/07/2026 20:34:15 :::CIS
38
2026:HHC:30730

can be used against him for rendering a conviction. Even
under the latter, he faces the consequences in law.”

39. This position was reiterated in Ashok Debbarma v.

.

State of Tripura, (2014) 4 SCC 747: (2014) 2 SCC (Cri) 417: 2014 SCC

OnLine SC 199, and it was held that the statement of the accused

recorded under Section 313 of the Cr.P.C. can be used to lend

corroboration to the statements of prosecution witnesses. It was

of
held at page 761: –

24. We are of the view that, under Section 313 statement,
rt
if the accused admits that, from the evidence of various
witnesses, four persons sustained severe bullet injuries

by the firing by the accused and his associates, that
admission of guilt in Section 313 statement cannot be
brushed aside. This Court in State of Maharashtra v.

Sukhdev Singh [(1992) 3 SCC 700: 1992 SCC (Cri) 705 held

that since no oath is administered to the accused, the
statement made by the accused under Section 313 CrPC
will not be evidence stricto sensu and the accused, of

course, shall not render himself liable to punishment
merely on the basis of answers given while he was being

examined under Section 313 CrPC. But, sub-section (4)
says that the answers given by the accused in response to
his examination under Section 313 CrPC can be taken into

consideration in such an inquiry or trial. This Court in
Hate Singh Bhagat Singh v. State of Madhya Bharat, 1951
SCC 1060: AIR 1953 SC 468: 1953 Cri LJ 1933 held that the
answers given by the accused under Section 313
examination can be used for proving his guilt as much as
the evidence given by the prosecution witness. In Narain
Singh v. State of Punjab (1964) 1 Cri LJ 730: (1963) 3 SCR
678, this Court held that when the accused confesses to
the commission of the offence with which he is charged,

::: Downloaded on – 27/07/2026 20:34:15 :::CIS
39
2026:HHC:30730

the court may rely upon the confession and proceed to
convict him.

25. This Court in Mohan Singh v. Prem Singh (2002) 10 SCC

.

236: 2003 SCC (Cri) 1514 held that: (SCC p. 244, para 27)

“27. The statement made in defence by the
accused under Section 313 CrPC can certainly be
taken aid of to lend credence to the evidence led

by the prosecution, but only a part of such
statement under Section 313 CrPC cannot be
made the sole basis of his conviction.”

of
In this connection, reference may also be made to
the judgments of this Court in Devender Kumar
Singla v. Baldev Krishan Singla (2005) 9 SCC 15:

rt 2005 SCC (Cri) 1185 and Bishnu Prasad Sinha v.

State of Assam (2007) 11 SCC 467: (2008) 1 SCC (Cri)

766. The abovementioned decisions would

indicate that the statement of the accused under
Section 313 CrPC for the admission of his guilt or
confession as such cannot be made the sole basis
for finding the accused guilty, the reason being

he is not making the statement on oath, but all
the same the confession or admission of guilt can
be taken as a piece of evidence since the same

lends credence to the evidence led by the
prosecution.

26. We may, however, indicate that the answers
given by the accused while examining him under
Section 313, fully corroborate the evidence of PW 10

and PW 13 and hence the offences levelled against
the appellant stand proved, and the trial court and
the High Court have rightly found him guilty for the
offences under Sections 326, 436 and 302 read with
Section 34 IPC.”

40. Therefore, the statement made by the accused will

lend corroboration to the testimony of Raj Kumar (CW-2) that

the cheque was dishonoured because of insufficient funds.

::: Downloaded on – 27/07/2026 20:34:15 :::CIS
40

2026:HHC:30730

41. The complainant stated that he had issued a notice to

the accused, which was served upon him. The complainant filed

.

the acknowledgement (Ext.CH), which bears the signatures of

one Kusum Raj. The accused admitted in response to question

No.6 in his statement recorded under Section 313 of the CrPC,

that he had received a notice. Thus, the issuance and service of

of
the notice were duly proved.

42. The accused did not claim that he had repaid the
rt
money to the complainant after the receipt of notice.

43. Therefore, it was duly proved that the accused had

issued a cheque in favour of the complainant to repay the debt,

which was dishonoured with an endorsement ‘exceeds

arrangement and the drawer’s address differs ‘, and the accused

had failed to repay the money despite the receipt of valid notice

of demand. Therefore, all the ingredients of the commission of an

offence punishable under Section 138 of the NI Act were duly

satisfied, and the learned Trial Court had rightly convicted the

accused of the commission of an offence punishable under

Section 138 of the NI Act.

::: Downloaded on – 27/07/2026 20:34:15 :::CIS
41

2026:HHC:30730

44. The Learned Trial Court sentenced the accused to

undergo imprisonment for six months and pay ₹50,000/- as

.

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

Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197: (2019) 2 SCC (Cri) 40:

(2019) 2 SCC (Civ) 309: 2019 SCC OnLine SC 138 that the penal

provision of section 138 is deterrent in nature. It was observed at

of
page 203:

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

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

excessive.

46. The cheque was issued for ₹1,65,525/- and the

learned Trial Court has awarded a compensation of₹50,000/-

which is less than the cheque amount. However, the complainant

has not preferred any appeal for enhancement of compensation,

::: Downloaded on – 27/07/2026 20:34:15 :::CIS
42
2026:HHC:30730

and it is not possible to interfere with the compensation awarded

by the learned Trial Court even though it is inadequate.

.

47. No other point was urged.

48. Therefore, there is no infirmity in the judgment and

order passed by the learned Courts below, and no interference is

required with them. Consequently, the present revision fails, and

of
the same is dismissed.

49. Records of the learned Courts below be sent back
rt
forthwith, along with a copy of this judgment.

(Rakesh Kainthla)
Judge

27th July, 2026.

(Ravinder)

::: Downloaded on – 27/07/2026 20:34:15 :::CIS