Santokh Singh vs Of on 25 February, 2026

Himachal Pradesh High Court

Santokh Singh vs Of on 25 February, 2026

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          IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                               Cr. Revision No.34 of 2026
                                               Reserved on: 09.01.2026.




                                                                                 .

                                               Decided on: 25.02.2026


    Santokh Singh                                                        ....... Petitioner





                                      Versus




                                                      of
    Baldeep Singh                                                        .... Respondent

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

    For the Petitioner:                        Mr Suneet Goel, Senior Advocate,
                                               with Mr Vivek Negi, Advocate.


    For the Respondent:                        None.

    Rakesh Kainthla, Judge

The present revision is directed against the

judgment dated 27.11.2025 passed by learned Additional

Sessions Judge, Nalagarh, District Solan, H.P. (learned Appellate

Court) vide which judgment of conviction dated 14.12.2023 and

order of sentence dated 19.12.2023 passed by learned Additional

Chief Judicial Magistrate, Nalagarh, District Solan, H.P. (learned

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

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

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to in the same manner as they were arrayed before the learned

Trial Court for convenience.)

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

.

revision are that the complainant filed a complaint before the

learned Trial Court against the accused for the commission of

an offence punishable under Section 138 of the Negotiable

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

the parties had good relations. The accused needed money to
rt
run his transport business. He sought financial help from the

complainant. The complainant advanced ₹2,70,000/- to the

accused. The accused issued a post-dated cheque for

₹2,70,000/- drawn on Punjab National Bank, Nalagarh, to

discharge his debt. The complainant deposited the cheque at his

bank, and it was dishonoured with an endorsement

“insufficient funds’. The complainant issued a demand notice

to the accused asking him to pay the amount of ₹2,70,000/-

within 15 days. Notice was served upon the accused on 3.7.2019,

but he failed to pay the money. Hence, a complaint was filed

before the learned Trial Court against the accused for taking

action as per law.

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3. Learned Trial Court found sufficient reasons to

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

accusation was put to him for the commission of an offence

.

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

not guilty and claimed to be tried.

4. The complainant examined himself (CW1) to prove

of
his complaint.

5. The accused, in his statement recorded under
rt
Section 313 Cr. P.C., did not dispute his signature on the cheque

and the service of notice upon him. He did not produce any

evidence in defence.

6. Learned Trial Court held that the issuance of the

cheque was not 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. It was suggested by the accused to the

complainant that the accused had paid ₹20,000/- to the

complainant against liability, which corroborated the

complainant’s version that the accused had a subsisting liability

towards the complainant. The cheque was dishonoured with an

endorsement “insufficient funds”, and the notice was duly

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served upon the accused. All the ingredients of the commission

of an offence punishable under Section 138 of the NI Act were

duly satisfied. Hence, the learned Trial Court convicted the

.

accused of the commission of an offence punishable under

Section 138 of the NI Act, and sentenced him to undergo simple

imprisonment for six months, pay a compensation of

₹4,00,000/- and, in default of payment of compensation, to

of
undergo simple imprisonment for one month.

7.
rt
Being aggrieved by the judgment and order passed

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

was decided by the learned Additional Sessions Judge, Nalagarh

(learned Appellate Court). Learned Appellate Court concurred

with the findings recorded by the learned Trial Court that the

issuance of the cheque was not disputed, and a presumption

arose that the cheque was issued for consideration to discharge

the debt/liability. The accused did not lead any evidence to rebut

the presumption. The cheque was dishonoured with an

endorsement “insufficient funds”. Notice was duly served upon

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

a valid notice of demand. The learned Trial Court had rightly

convicted the accused. The sentence imposed by the learned

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

Hence, the appeal was dismissed.

8. Being aggrieved by the judgments and order passed

.

by the learned Courts below, the accused has filed the present

revision asserting that the learned Courts below erred in

appreciating the material placed before them. The complainant

of
failed to prove the existence of a legally enforceable

debt/liability. The accused had denied the existence of any debt,
rt
and the burden was upon the complainant to establish the

existence of a debt. The complainant asserted in the complaint

that the cheque was issued as financial help, but stated in his

cross-examination that the cheque was issued to pay the

instalment of the vehicle. He failed to examine his father, in

whose presence the financial help was provided. He did not

produce the Income Tax Return to show his financial capacity to

advance the loan. Therefore, it was prayed that the present

revision be allowed and the judgments and order passed by the

learned Courts below be set-aside.

9. Mr. Suneet Goel, learned Senior Advocate, assisted

by Mr Vivek Negi, learned counsel for the petitioner/accused,

submitted that the learned Courts below erred in appreciating

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the material placed before them. The complainant had not

mentioned the nature of the debt/liability in the complaint or

the date on which the financial help was provided. There were

.

discrepancies in the evidence and the averments made in the

complaint, and the learned Courts below failed to notice it.

Hence, he prayed that the present revision be allowed and the

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

of
aside.

10. I
rt
have given considerable thought to the

submissions made at the bar and have gone through the records

carefully.

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

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

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

revisional court is not an appellate court and it can only rectify

the patent defect, errors of jurisdiction or the law. It was

observed at page 207-

“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

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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.

of

12. This position was reiterated in State of Gujarat v.

Dilipsinh Kishorsinh Rao, (2023) 17 SCC 688: 2023 SCC OnLine
rt
SC 1294, wherein it was observed at page 695:

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

court, is for the purposes of satisfying itself as to the
legality and regularities of any proceeding or order made
in a case. The object of this provision is to set right a

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

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

Ramesh Chander, (2012) 9 SCC 460: (2012) 4 SCC (Civ)
687: (2013) 1 SCC (Cri) 986], where scope of Section 397
has been considered and succinctly explained as under:

(SCC p. 475, paras 12-13)
“12. Section 397 of the Code vests the court with
the power to call for and examine the records of an
inferior court for the purposes of satisfying itself
as to the legality and regularity of any proceedings
or order made in a case. The object of this
provision is to set right a patent defect or an error
of jurisdiction or law. There has to be a well-

founded error, and it may not be appropriate for

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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

of
determined on its own merits.

13. Another well-accepted norm is that the
revisional jurisdiction of the higher court is a very
rt
limited one and cannot be exercised in a routine
manner. One of the inbuilt restrictions is that it

should not be against an interim or interlocutory
order. The Court has to keep in mind that the
exercise of revisional jurisdiction itself should not
lead to injustice ex facie. Where the Court is

dealing with the question as to whether the charge
has been framed properly and in accordance with
law in a given case, it may be reluctant to interfere

in the exercise of its revisional jurisdiction unless
the case substantially falls within the categories

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

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

SCC 165: (2018) 3 SCC (Cri) 544: (2018) 4 SCC (Civ) 37: 2018 SCC

OnLine SC 651 that it is impermissible for the High Court to

reappreciate the evidence and come to its conclusions in the

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

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“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,

of
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
rt
the said revisional power cannot be equated with
the power of an appellate court, nor can it be

treated even as a second appellate jurisdiction.
Ordinarily, therefore, it would not be appropriate
for the High Court to reappreciate the evidence and
come to its conclusion on the same when the

evidence has already been appreciated by the
Magistrate as well as the Sessions Judge in appeal,
unless any glaring feature is brought to the notice

of the High Court which would otherwise amount
to a gross miscarriage of justice. On scrutinising

the impugned judgment of the High Court from the
aforesaid standpoint, we have no hesitation in
concluding that the High Court exceeded its

jurisdiction in interfering with the conviction of
the respondent by reappreciating the oral
evidence. …”

13. Another judgment which has also been referred to and
relied on by the High Court is the judgment of this Court
in Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao
Phalke, (2015) 3 SCC 123: (2015) 2 SCC (Cri) 19] . This
Court held that the High Court, in the exercise of
revisional jurisdiction, shall not interfere with the order
of the Magistrate unless it is perverse or wholly
unreasonable or there is non-consideration of any

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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

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
rt
is not to be equated with that of an appeal. Unless
the finding of the court, whose decision is sought

to be revised, is shown to be perverse or untenable
in law or is grossly erroneous or glaringly
unreasonable or where the decision is based on no
material or where the material facts are wholly

ignored or where the judicial discretion is
exercised arbitrarily or capriciously, the courts
may not interfere with the decision in exercise of

their revisional jurisdiction.”

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

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

(Civ) 309: 2019 SCC OnLine SC 13, wherein it was observed at

page 205:

“16. It is well settled that in the exercise of revisional
jurisdiction under Section 482 of the Criminal Procedure
Code, the High Court does not, in the absence of
perversity, upset concurrent factual findings. It is not for
the Revisional Court to re-analyse and re-interpret the
evidence on record.

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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.”

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

parameters laid down by the Hon’ble Supreme Court

of

16. The ingredients of an offence punishable under

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

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17. The accused did not dispute his signature or the

issuance of the cheque in his statement recorded under Section

313 of Cr.P.C. It was suggested to the complainant in his cross-

.

examination that the accused had paid ₹20,000/-out of his

liability during the pendency of the proceedings. Learned Courts

below had rightly held that this suggestion corroborated the

complainant’s version regarding the existence of liability. It

of
was laid down by the Hon’ble Supreme Court in APS Forex
rt
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 the full amount due and
payable to the complainant had been paid. In the present
case, no such evidence has been led by the accused. The
story put forward by the accused that the cheques were
given by way of security is not believable in the absence
of further evidence to rebut the presumption, and more

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

.

exists a legally enforceable debt or liability as per Section

139 of the NI Act. It appears that both the learned trial
court as well as the High Court have committed an error
in shifting the burden upon the complainant to prove the

debt or liability, without appreciating the presumption
under Section 139 of the NI Act. As observed above,
Section 139 of the Act is an example of reverse onus

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

18. 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.”

19. A similar view was taken in Sanjabij Tari v. Kishore

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

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

15. In the present case, the cheque in question has
admittedly been signed by the Respondent No. 1-
Accused. This Court is of the view that once the execution

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of the cheque is admitted, the presumption under Section
118 of the NI Act that the cheque in question was drawn
for consideration and the presumption under Section 139
of the NI Act that the holder of the cheque received the
said cheque in discharge of a legally enforceable debt or

.

liability arises against the accused. It is pertinent to

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

Judge Bench in Rangappa (supra).

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

of
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
rt
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].

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

that the cheque was issued in discharge of the liability for

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

presumption.

21. It was submitted that the complainant had not

mentioned the nature of the liability or the date of advancing

the loan to the accused; therefore, the complaint is bad, and no

action could have been taken on it. This submission cannot be

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

M.M.T.C. Ltd. v. Medchl Chemicals and Pharma (P) Ltd. , (2002)

1 SCC 234: 2001 SCC OnLine SC 1364 that there is no

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requirement of mentioning the subsisting liability in the

complaint because it is a matter of presumption. It was

observed at page 240: –

.

17. There is therefore no requirement that the
complainant must specifically allege in the complaint
that there was a subsisting liability. The burden of

proving that there was no existing debt or liability was on
the respondents. This they have to discharge in the trial.

At this stage, merely on the basis of averments in the

of
petitions filed by them, the High Court could not have
concluded that there was no existing debt or liability.

22. This judgment was followed by Kerla High Court in
rt
B. Surendra Das versus State of Kerala, 2019 STPL 12260 Kerala,

wherein it was observed:-

12. It is contended by the petitioner that there is no

specific averment in the complaint that the cheque was
issued in discharge of the amount allegedly borrowed by
him from the complainant. There is no need to make

such a specific averment in the complaint. There is no
requirement that the complainant must specifically

allege in the complaint that there was a subsisting
liability (See M.M.T.C Limited v. Medchil Chemicals and
Pharma (P) Limited, (2002) AIR SC 182).

23. The complainant admitted in his cross-examination

that the handwriting of the cheque and the signature were

different. This will not make any difference. It was laid down by

the Hon’ble Supreme Court in Bir Singh vs. Mukesh Kumar

(2019) 4 SCC 197, that a person is liable for the commission of

an offence punishable under Section 138 of the Negotiable

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Instruments Act even if the cheque is filled by some other

person. It was observed:

“37. A meaningful reading of the provisions of the

.

Negotiable Instruments Act including, in particular,

Sections 20, 87 and 139, makes it amply clear that a
person who signs a cheque and makes it over to the payee
remains liable unless he adduces evidence to rebut the

presumption that the cheque had been issued for
payment of a debt or in the discharge of a liability. It is
immaterial that the cheque may have been filled in by

of
any person other than the drawer if the cheque is duly
signed by the drawer. If the cheque is otherwise valid, the
penal provisions of Section 138 would be attracted.

rt

38. If a signed blank cheque is voluntarily presented to a
payee, towards some payment, the payee may fill in the

amount and other particulars. This in itself would not
invalidate the cheque. The onus would still be on the
accused to prove that the cheque was not in discharge of
a debt or liability by adducing evidence.

39. It is not the case that the respondent accused that he
either signed the cheque or parted with it under any
threat or coercion. Nor is it the case that the respondent

accused that the unfilled signed cheque had been stolen.
The existence of a fiduciary relationship between the

payee of a cheque and its drawer would not disentitle the
payee to the benefit of the presumption under Section

139 of the Negotiable Instruments Act, in the absence of
evidence of the exercise of undue influence or coercion.
The second question is also answered in the negative.

40. Even a blank cheque leaf, voluntarily signed and
handed over by the accused, which is towards some
payment, would attract presumption under Section 139
of the Negotiable Instruments Act, in the absence of any
cogent evidence to show that the cheque was not issued
in discharge of a debt.

41. The fact that the appellant-complainant might have
been an Income Tax practitioner conversant with

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knowledge of the law does not make any difference to the
law relating to the dishonour of a cheque. The fact that
the loan may not have been advanced by a cheque or
demand draft, or a receipt might not have been obtained,
would make no difference. In this context, it would,

.

perhaps, not be out of context to note that the fact that

the respondent-accused should have given or signed a
blank cheque to the appellant complainant, as claimed by
the respondent-accused, shows that initially there was

mutual trust and faith between them.

42. In the absence of any finding that the cheque in

of
question was not signed by the respondent-accused or
not voluntarily made over to the payee and in the absence
of any evidence with regard to the circumstances in
which a blank signed cheque had been given to the
rt
appellant-complainant, it may reasonably be presumed
that the cheque was filled in by the appellant-

complainant being the payee in the presence of the
respondent-accused being the drawer, at his request
and/or with his acquiescence. The subsequent filling in of
an unfilled signed cheque is not an alteration. There was

no change in the amount of the cheque, its date or the
name of the payee. The High Court ought not to have
acquitted the respondent-accused of the charge under

Section 138 of the Negotiable Instruments Act.”

24. This position was reiterated in Oriental Bank of

Commerce vs. Prabodh Kumar Tewari 2022 0 Supreme (SC) 837,

wherein it was observed:

“12. The submission, which has been urged on behalf of
the appellant, is that even assuming, as the first
respondent submits, that the details in the cheque were
not filled in by the drawer, this would not make any
difference to the liability of the drawer.
xxxxxx

15. A drawer who signs a cheque and hands it over to the
payee is presumed to be liable unless the drawer adduces

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evidence to rebut the presumption that the cheque has
been issued towards payment of a debt or in the
discharge of a liability. The presumption arises under
Section 139.”

25. Therefore, the cheque is not bad even if it is not

.

filled in by the drawer.

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

establish this version. It was held in Sumeti Vij v. Paramount

of
Tech Fab Industries, (2022) 15 SCC 689: 2021 SCC OnLine SC 201

that the accused has to lead defence evidence to rebut the
rt
presumption and mere denial in his statement under section 313

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 Section 139 of the Act. The

statement of the accused recorded under Section 313 of
the Code is not substantive evidence of defence, but only
an opportunity for the accused to explain the
incriminating circumstances appearing in the
prosecution’s case against the accused. Therefore, there
is no evidence to rebut the presumption that the cheques
were issued for consideration.” (Emphasis supplied)”

27. The complainant stated in his cross-examination

that his bus was attached to the Indian Cord Clothing company.

He used to earn ₹1,10,000/- per month and ₹13,00,000/- per

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year. This part of the statement has remained unshaken, and

there is nothing to show that he was making a false statement.

Thus, the financial capacity of the complainant to advance the

.

money was proved.

28. The complainant stated in his cross-examination

that the money was paid in the presence of his father. It was

of
submitted that the complainant’s father was not examined, and

there is no corroboration of the complainant’s testimony
rt
regarding the advancement of a loan to the accused. This

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

Hon’ble Supreme Court in Uttam Ram v. Devinder Singh Hudan,

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

under Section 139 of the NI Act would obviate the requirement

to prove the existence of consideration. It was observed:

“20. 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 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.”

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

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

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
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
rt
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 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

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decision in S. S. Production v. Tr. Pavithran Prasanth,
2024 INSC 1059, we opined:

‘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 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

of
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
rt
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 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

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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

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 producing
documents. It is also open to him to establish

of
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-
rt examination of the witnesses of the
complainant. Ultimately, it becomes the duty of

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

complainant is in peril for the reason that the
accused has established a probable
defence.'(emphasis supplied)’ (underlining in

original; emphasis supplied by us in bold).

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

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

observed:

“21. This Court also takes judicial notice of the fact that
some District Courts and some High Courts are not giving
effect to the presumptions incorporated in Sections 118
and 139 of the NI Act and are treating the proceedings
under the NI Act as another civil recovery proceedings
and are directing the complainant to prove the
antecedent debt or liability. This Court is of the view that
such an approach is not only prolonging the trial but is

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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.”

31. Therefore, the complainant’s case cannot be

.

doubted because of the non-examination of his father.

32. The complainant admitted in his cross-examination

that he used to file an Income Tax Return. He had filed the

of
Income Tax Return of ₹5,00,000/- at the relevant time. It was

submitted that the complainant had not produced his Income
rt
Tax Return to show that he had mentioned the amount

advanced to the accused in the return. This submission will not

help the accused. Even if it is presumed, for the sake of

argument that the amount was not reflected in the Income Tax

Return, it would not make any difference to the complainant’s

case. 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 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

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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

.

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 respondent/accused, must have
been issued by him in the discharge of his liability

of
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
rt
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 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

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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.”

.

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

the Income Tax Return was not filed before the learned Trial

Court.

of

34. There is no other evidence to rebut the presumption

attached to the cheque, and the learned Courts below had
rt
rightly held that the accused had failed to rebut the

presumption attached to the cheque.

35. The complainant stated that the cheque had

dishonoured with the endorsement “insufficient funds”. This

was duly proved by memo (Ex.C3/CW1) wherein the reason of

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

down by the Hon’ble Supreme Court in Mandvi Cooperative

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

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

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

burden is 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

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slip or memo with the official mark showing that the
cheque was dishonoured would, by itself, give rise to the
presumption of dishonour of the cheque, unless and until
that fact was disproved. Section 147 makes the offences
punishable under the Act compoundable.

.

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 funds.’

of

37. The accused admitted in his statement recorded
rt
under Section 313 of Cr.P.C that he had received the notice; thus,

the receipt of notice was not disputed.

38. Thus, the 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, and there is

no infirmity in the judgment convicting the accused of the

commission of an offence punishable under Section 138 of the

NI Act.

39. Learned Trial Court sentenced the accused to

undergo simple imprisonment for six months and pay

compensation of ₹4,00,000/- to the complainant. It was laid

down by the Hon’ble Supreme Court in Bir Singh v. Mukesh

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

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

Section 138 of the NI Act is deterrent in nature. It was observed

at page 203:

.

“6. The object of Section 138 of the Negotiable
Instruments Act is to infuse credibility into negotiable
instruments, including cheques, and to encourage and

promote the use of negotiable instruments, including
cheques, in financial transactions. The penal provision of
Section 138 of the Negotiable Instruments Act is intended

of
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.”

40.
rt
Keeping in view the deterrent nature of the

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

excessive.

41. The learned Trial Court awarded the compensation

of ₹4,00,000/-. Thus, the learned Trial Court had only awarded

the compensation of ₹1,30,000/- of the cheque amount of

₹2,70,000/-. The cheque was issued for ₹2,70,000/- on

31.05.2019. The sentence was imposed on 19.12.2023 after a

lapse of more than 4 ½ years. It was laid down by the Hon’ble

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

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

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

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twice the cheque amount along with simple interest at the rate

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

19. As regards the claim of compensation raised on behalf

.

of the respondent, we are conscious of the settled

principles that the object of Chapter XVII of NIA is not
only punitive but also compensatory and restitutive. The
provisions of NIA envision a single window for criminal

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

of
approach towards awarding compensation, and unless
there exist special circumstances, the courts should
uniformly levy fines up to twice the cheque amount along
rt
with simple interest @ 9% p.a. [R. Vijayan v. Baby, (2012)
1 SCC 260, para 20: (2012) 1 SCC (Civ) 79: (2012) 1 SCC
(Cri) 520]”

42. Hence, the amount of ₹1,30,000 awarded on the

cheque amount of ₹2,70,000/-cannot be said to be excessive.

43. It was submitted that the learned Trial Court could

not have awarded the sentence of imprisonment in case of

default in the payment of compensation. This submission is not

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

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

SC 612, the Courts can impose a sentence of imprisonment in

default of payment of compensation. It was observed at page

237:

“26. From the above line of cases, it becomes very clear
that a sentence of imprisonment can be granted for
default in payment of compensation awarded under

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Section 357(3) CrPC. The whole purpose of the provision
is to accommodate the interests of the victims in the
criminal justice system. Sometimes the situation
becomes such that there is no purpose served by keeping
a person behind bars. Instead, directing the accused to

.

pay an amount of compensation to the victim or affected

party can ensure the delivery of total justice. Therefore,
this grant of compensation is sometimes in lieu of
sending a person to bars or in addition to a very light

sentence of imprisonment. Hence, in default of payment
of this compensation, there must be a just recourse. Not
imposing a sentence of imprisonment would mean

of
allowing the accused to get away without paying the
compensation, and imposing another fine would be
impractical, as it would mean imposing a fine upon
another fine and therefore would not ensure proper
rt
enforcement of the order of compensation. While passing
an order under Section 357(3), it is imperative for the

courts to look at the ability and the capacity of the
accused to pay the same amount as has been laid down by
the cases above; otherwise, the very purpose of granting

an order of compensation would stand defeated.”

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

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

wherein it was observed at page 729:

“29. The idea behind directing the accused to pay

compensation to the complainant is to give him
immediate relief so as to alleviate his grievance. In terms
of Section 357(3), compensation is awarded for the loss
or injury suffered by the person due to the act of the
accused for which he is sentenced. If merely an order
directing compensation is passed, it would be totally
ineffective. It could be an order without any deterrence or
apprehension of immediate adverse consequences in case
of its non-observance. The whole purpose of giving relief
to the complainant under Section 357(3) of the Code
would be frustrated if he is driven to take recourse to

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Section 421 of the Code. An order under Section 357(3)
must have the potential to secure its observance.
Deterrence can only be infused into the order by
providing for a default sentence. If Section 421 of the
Code puts compensation ordered to be paid by the court

.

on a par with the fine so far as the mode of recovery is

concerned, then there is no reason why the court cannot
impose a sentence in default of payment of
compensation, as it can be done in case of default in

payment of a fine under Section 64 IPC. It is obvious that
in view of this, in Vijayan [(2009) 6 SCC 652: (2009) 3
SCC (Cri) 296], this Court stated that the

of
abovementioned provisions enabled the court to impose
a sentence in default of payment of compensation and
rejected the submission that the recourse can only be had
to Section 421 of the Code for enforcing the order of
rt
compensation. Pertinently, it was made clear that
observations made by this Court in Hari Singh [(1988) 4

SCC 551: 1988 SCC (Cri) 984] are as important today as
they were when they were made. The conclusion,
therefore, is that the order to pay compensation may be

enforced by awarding a sentence in default.

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

Sessions Court in awarding a sentence in default of
payment of compensation. The High Court was in error in

setting aside the sentence imposed in default of payment
of compensation.

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

imprisonment in case of default in the payment of

compensation.

46. No other point was urged.

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47. In view of the above, the present revision petition

fails, and is dismissed and so are the pending applications, if

any.

.

(Rakesh Kainthla)
Judge
25 February, 2026.

(Yogesh)

of
rt

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