Naresh Vema vs Pnb & Anr on 10 July, 2026

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    Himachal Pradesh High Court

    Naresh Vema vs Pnb & Anr on 10 July, 2026

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                                                                                          2026:HHC:28006
    
           IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
                                                  Cr. Revision No. 133 of 2024
                                                  Reserved on: 30.06.2026
                                                  Date of Decision: 10.07.2026
    
    
    
    
                                                                                       .
    
        Naresh Vema                                                                  ...Petitioner
    
    
    
    
    
                                                Versus
        PNB & Anr.                                                                   ...Respondents
    
    
    
    
                                                         of
        Coram
        Hon'ble Mr Justice Rakesh Kainthla, Judge.
    
    
        For the Petitioner
                               rt
        Whether approved for reporting?1No
                                                     :    Mr Neel Kamal Sharma,
    
                                                          Advocate.
        For the Respondent No.1                      :    Mr Arvind Sharma, Advocate.
    
        For Respondent No.2/State                    :    Mr Jitender Sharma, Additional
    
    
                                                          Advocate General.
    
    
        Rakesh Kainthla, Judge
    

    The present revision is directed against the judgment

    dated 29.02.2024 passed by the learned Sessions Judge, District

    SPONSORED

    Mandi (learned Appellate Court) vide which the judgment of

    conviction dated 29.12.2022 and order of sentence dated 10.01.2023

    passed by the learned Chief Judicial Magistrate, 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)
    1
    Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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    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 read with Section 142 of the

    Negotiable Instruments Act (NI Act). It was asserted that the

    complainant is a bank engaged in banking activities. The accused

    of
    obtained a vehicle loan of ₹15,00,000/- from the complainant. He

    issued a cheque of ₹2,23,000/- to repay the amount. The
    rt
    complainant presented the cheque to its bank, but it was

    dishonoured with an endorsement “exceeds arrangement”. The

    complainant served a legal notice upon the accused. The accused

    failed to repay the amount despite the receipt of a demand notice.

    Hence, a complaint was filed before the learned Trial Court against

    the accused for taking action as per the law.

    3. Learned Trial Court found sufficient reasons to summon

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

    was 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 Sushil Kumar (CW1) to

    prove its complaint.

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    5. The accused, in his statement recorded under Section

    313 of the Code of Criminal Procedure (Cr.P.C.), admitted that he

    had taken a loan of ₹15,00,000/- from the complainant. He

    .

    admitted his signature on the cheque and claimed that he had

    issued a security cheque. He denied that he had received the notice.

    He stated that the witnesses had deposed against him falsely, and

    of
    he is innocent. He did not produce any evidence in his defence.

    6. Learned Trial Court held that the issuance of the cheque
    rt
    and the signatures on the cheque were not disputed. The plea taken

    by the accused that he had issued a cheque as security will not help

    him because a cheque issued towards the security also attracts

    liability under Section 138 of the NI Act. A cheque carries a

    presumption that it was issued for consideration to discharge the

    debt/liability, and the burden is upon the accused to rebut this

    presumption. The accused failed to rebut the presumption. The

    cheque was dishonoured with the endorsement “exceeds

    arrangement”. The notice was duly served upon the accused. The

    accused had failed to repay the money within 15 days of the receipt

    of the summons from the Court. 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

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    the accused of the commission of an offence punishable under

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

    imprisonment for 6 months, pay a fine of ₹3,00,000/- and in

    .

    default of payment of fine, to undergo further simple

    imprisonment for 2 months.

    7. Being aggrieved by the judgment and order passed by

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

    decided by the learned Sessions Judge, Mandi (learned Appellate
    rt
    Court). The Appellate Court concurred with the findings recorded

    by the learned Trial court that the cheque carried with it a

    presumption that it was issued for consideration to discharge the

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

    to the cheque. The plea taken by the accused that the cheque was

    issued as security would not help him because a cheque issued

    towards the security also attracts the provisions of Section 138 of

    the NI Act. The cheque was dishonoured with an endorsement

    “exceeds arrangement”, and the notice was duly served upon the

    accused. The accused failed to repay the money despite the receipt

    of the demand notice. All the ingredients of 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

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    under Section 138 of the NI Act. The sentence imposed by the

    learned Trial Court was adequate, which did not require any

    interference from the learned Appellate Court. Therefore, the

    .

    appeal was dismissed.

    8. Being aggrieved by the judgments and order passed by

    the Learned Courts below. The accused has filed a present revision

    of
    asserting that the learned courts below erred in appreciating the

    material placed before them. No adequate reasons were assigned
    rt
    for awarding the maximum punishment. The complainant had

    obtained blank signed cheques from the accused at the time of

    advancing the loan. The accused had regularly paid the instalment,

    and nothing was due to the bank. The bank erred in presenting the

    cheque. 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. I have heard Mr Neel Kamal Sharma, learned counsel for

    the petitioner/accused, Mr Arvind Sharma, learned counsel for

    respondent No.1/complainant and Mr Jitender Sharma, learned

    Additional Advocate General for respondent No.2/State.

    10. Mr Neel Kamal Sharma, learned counsel for the

    petitioner, submitted that the learned Courts below erred in

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    appreciating the material on record. The plea taken by the accused

    that a blank signed security cheque was taken at the time of

    advancing the loan was highly probable, and the learned Courts

    .

    below erred in rejecting this plea. The accused had repaid the loan,

    and there was no liability towards the bank. The bank had seized

    the vehicle and sold it, and this amount was not adjusted in the

    of
    loan account. Therefore, he prayed that the present revision be

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

    11. Mr Arvind Sharma, learned counsel for respondent

    No.1/complainant submitted that the accused has admitted the

    taking of the loan from the complainant. He claimed that he had

    repaid the money, but failed to prove this plea by leading any

    evidence. Learned Courts below had rightly held that a cheque

    issued as a security would attract the provisions of Section 138 of

    the NI Act. This Court should not re-appreciate the evidence in the

    exercise of the revisional jurisdiction. Therefore, he prayed that the

    present revision be dismissed.

    12. Mr Jitender Sharma, learned Additional Advocate

    General for respondent No.2/State submitted that the dispute is

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    between the private parties and the State has no submissions to

    make in the present case.

    13. I have given a 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

    of
    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
    rt
    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 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.

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    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 error of

    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
    rt
    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 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.

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    13. Another well-accepted norm is that the revisional
    jurisdiction of the higher court is a very limited one
    and cannot be exercised in a routine manner. One of
    the inbuilt restrictions is that it should not be against
    an interim or interlocutory order. The Court has to

    .

    keep in mind that the exercise of revisional jurisdiction

    itself should not lead to injustice ex facie. Where the
    Court is dealing with the question as to whether the

    charge has been framed properly and in accordance
    with law in a given case, it may be reluctant to
    interfere in the exercise of its revisional jurisdiction
    unless the case substantially falls within the categories

    of
    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
    rt
    165: (2018) 3 SCC (Cri) 544: (2018) 4 SCC (Civ) 37: 2018 SCC OnLine SC

    651 that it is impermissible for the High Court to reappreciate the

    evidence and come to its conclusions in the absence of any

    perversity. It was observed at page 169:

    “12. This Court has time and again examined the scope of
    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.

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    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

    of
    evidence. …”

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

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    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.”

    .

    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:

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

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

    Sauermilch Design and Handels GmbH, (2008) 14 SCC 457, it 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. The present revision has to be decided as per the

    parameters laid down by the Hon’ble Supreme Court.

    19. The ingredients of an offence punishable under Section

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

    Kaveri Plastics v. Mahdoom Bawa Bahrudeen Noorul, 2025 SCC

    OnLine SC 2019 as under: –

    5.1.1. In K.R. Indira v. Dr. G. Adinarayana (2003) 8 SCC 300, this
    Court enlisted the components, aspects and the acts, the
    concatenation of which would make the offence under
    Section 138 of the Act complete, to be these (i) drawing of the

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    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

    of
    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.

    rt

    20. The accused admitted in his statement recorded under

    Section 313 of the Cr.P.C. that he had taken a loan of ₹15,00,000/-

    from the complainant. He admitted his signature on the cheque and

    claimed that he had issued the cheque as security. Therefore, the

    issuance of the cheque and the signatures on the cheque were not

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

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

    12 SCC 724, that when the issuance of a cheque and signature on the

    cheque are not disputed, a presumption would arise that the

    cheque was issued in discharge of the legal liability. It was

    observed: –

    “9. Coming back to the facts in the present case and
    considering the fact that the accused has admitted the
    issuance of the cheques and his signature on the cheque and
    that the cheque in question was issued for the second time

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    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 particularly, the cheque in question was issued for the

    of
    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
    rt
    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 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.”

    21. 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.”

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    22. 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 of the cheque is admitted,
    the presumption under Section 118 of the NI Act that the

    of
    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
    rt
    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

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

    17. Needless to mention that the presumption contemplated

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

    any debt or other liability is on the accused/drawer of the
    cheque [See: Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197].

    23. 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.

    24. It was submitted that the cheque was issued as security,

    and the accused is not liable for its dishonour. This submission

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    cannot be accepted. It was laid down by this Court in Hamid

    Mohammad Versus Jaimal Dass 2016 (1) HLJ 456, that the accused is

    liable for the dishonour of the cheque even if the cheque is issued

    .

    towards the security. It was observed:

    “9. Submission of learned Advocate appearing on behalf of

    the revisionist that the cheque in question was issued to the
    complainant as security, and on this ground, the criminal
    revision petition is rejected as being devoid of any force for

    of
    the reasons hereinafter mentioned. As per Section 138 of the
    Negotiable Instruments Act 1881, if any cheque is issued on
    account of other liability, then the provisions of Section 138
    rt
    of the Negotiable Instruments Act 1881 would be attracted.
    The court has perused the original cheque, Ext. C-1 dated
    30.10.2008, placed on record. There is no recital in the

    cheque Ext. C-1, that cheque was issued as a security cheque.
    It is well-settled law that a cheque issued as security would
    also come under the provisions of Section 138 of the

    Negotiable Instruments Act 1881. See 2016 (3) SCC page 1
    titled Don Ayengia v. State of Assam & another. It is well-
    settled law that where there is a conflict between former law

    and subsequent law, then subsequent law always prevails.”

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

    Sampelly Satyanarayana Rao vs. Indian Renewable Energy

    Development Agency Limited 2016(10) SCC 458 that issuing a cheque

    toward security will also attract the liability for the commission of

    an offence punishable under Section 138 of the NI Act. It was

    observed: –

    “10. We have given due consideration to the submission
    advanced on behalf of the appellant as well as the
    observations of this Court in Indus Airways Private Limited

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    versus Magnum Aviation Private Limited (2014) 12 SCC 53 with
    reference to the explanation to Section 138 of the Act and the
    expression “for the discharge of any debt or other liability”

    occurring in Section 138 of the Act. We are of the view that
    the question of whether a post-dated cheque is for

    .

    “discharge of debt or liability” depends on the nature of the

    transaction. If on the date of the cheque, liability or debt exists
    or the amount has become legally recoverable, the Section is

    attracted and not otherwise.

    11. Reference to the facts of the present case clearly shows
    that though the word “security” is used in clause 3.1(iii) of

    of
    the agreement, the said expression refers to the cheques
    being towards repayment of instalments. The repayment
    becomes due under the agreement, the moment the loan is
    advanced, and the instalment falls due. It is undisputed that
    rt
    the loan was duly disbursed on 28th February 2002, which
    was prior to the date of the cheques. Once the loan was

    disbursed and instalments had fallen due on the date of the
    cheque as per the agreement, the dishonour of such cheques
    would fall under Section 138 of the Act. The cheques
    undoubtedly represent the outstanding liability.

    12. Judgment in Indus Airways (supra) is clearly
    distinguishable. As already noted, it was held therein that
    liability arising out of a claim for breach of contract under

    Section 138, which arises on account of dishonour of a

    cheque issued, was not by itself at par with a criminal
    liability towards discharge of acknowledged and admitted
    debt under a loan transaction. Dishonour of a cheque issued

    for the discharge of a later liability is clearly covered by the
    statute in question. Admittedly, on the date of the cheque,
    there was a debt/liability in praesenti in terms of the loan
    agreement, as against the case of Indus Airways (supra),
    where the purchase order had been cancelled, and a cheque
    issued towards advance payment for the purchase order was
    dishonoured. In that case, it was found that the cheque had
    not been issued for the discharge of liability but as an
    advance for the purchase order, which was cancelled.
    Keeping in mind this fine, but the real distinction, the said
    judgment cannot be applied to a case of the present nature,

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    2026:HHC:28006

    where the cheque was for repayment of a loan instalment
    which had fallen due, though such a deposit of cheques
    towards repayment of instalments was also described as
    “security” in the loan agreement. In applying the judgment
    in Indus Airways (supra), one cannot lose sight of the

    .

    difference between a transaction of the purchase order

    which is cancelled and that of a loan transaction where the
    loan has actually been advanced, and its repayment is due on

    the date of the cheque.

    13. The crucial question to determine the applicability of
    Section 138 of the Act is whether the cheque represents the

    of
    discharge of existing enforceable debt or liability, or
    whether it represents an advance payment without there
    being a subsisting debt or liability. While approving the
    views of different High Courts noted earlier, this is the
    rt
    underlying principle as can be discerned from the discussion
    of the said cases in the judgment of this Court.” (Emphasis

    supplied)

    26. This position was reiterated in Sripati Singh v. State of

    Jharkhand, 2021 SCC OnLine SC 1002: AIR 2021 SC 5732, and it was

    held that a cheque issued as security is not waste paper and a

    complaint under section 138 of the NI Act can be filed on its

    dishonour. It was observed:

    “17. A cheque issued as security pursuant to a financial
    transaction cannot be considered a worthless piece of paper
    under every circumstance. ‘Security’ in its true sense is the
    state of being safe, and the security given for a loan is
    something given as a pledge of payment. It is given,
    deposited or pledged to make certain the fulfilment of an
    obligation to which the parties to the transaction are bound.
    If in a transaction, a loan is advanced and the borrower
    agrees to repay the amount in a specified timeframe and
    issues a cheque as security to secure such repayment; if the
    loan amount is not repaid in any other form before the due
    date or if there is no other understanding or agreement

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    between the parties to defer the payment of the amount, the
    cheque which is issued as security would mature for
    presentation and the drawee of the cheque would be entitled
    to present the same. On such a presentation, if the same is
    dishonoured, the consequences contemplated under Section

    .

    138 and the other provisions of the NI Act would flow.

    18. When a cheque is issued and is treated as ‘security’
    towards repayment of an amount with a time period being

    stipulated for repayment, all that it ensures is that such a
    cheque, which is issued as ‘security, cannot be presented
    prior to the loan or the instalment maturing for repayment

    of
    towards which such cheque is issued as security. Further, the
    borrower would have the option of repaying the loan amount
    or such financial liability in any other form, and in that
    manner, if the amount of the loan due and payable has been
    rt
    discharged within the agreed period, the cheque issued as
    security cannot thereafter be presented. Therefore, the prior

    discharge of the loan or there being an altered situation due
    to which there would be an understanding between the
    parties is a sine qua non to not present the cheque which was
    issued as security. These are only the defences that would be

    available to the drawer of the cheque in proceedings initiated
    under Section 138 of the NI Act. Therefore, there cannot be a
    hard and fast rule that a cheque, which is issued as security,

    can never be presented by the drawee of the cheque. If such is
    the understanding, a cheque would also be reduced to an

    ‘on-demand promissory note’, and in all circumstances, it
    would only be civil litigation to recover the amount, which is

    not the intention of the statute. When a cheque is issued even
    though as ‘security’ the consequence flowing therefrom is
    also known to the drawer of the cheque and in the
    circumstance stated above if the cheque is presented and
    dishonoured, the holder of the cheque/drawee would have
    the option of initiating the civil proceedings for recovery or
    the criminal proceedings for punishment in the fact
    situation, but in any event, it is not for the drawer of the
    cheque to dictate terms with regard to the nature of
    litigation.”

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    2026:HHC:28006

    27. Therefore, the accused cannot escape from the liability

    by taking a plea that he had issued the cheque as security.

    28. Sushil Kumar (CW1) admitted in his cross-examination

    .

    that the bank had seized the vehicle and sold it. However, he did

    not know the amount realised by the bank from the sale of the

    vehicle. It was submitted that the admission made by this witness

    of
    shows that the bank had realised the amount by the sale of the

    vehicle, and the accused was not liable to pay any money. This
    rt
    submission cannot be accepted. The accused admitted that he had

    taken the loan of ₹15 lakh. He claimed that he had repaid the

    amount in the monthly instalments. But there is no proof of this

    fact. The cheque was presented for an amount of ₹2,23,000/-,

    which is much less than the amount of ₹15,00,000/- taken by the

    accused. A vehicle purchased for ₹15,00,000/- would not have

    realised ₹15,00,000/- on its sale, and the complainant’s plea that

    an amount of ₹2,23,000/- was due from the accused is acceptable.

    29. It was submitted that the bank has not produced the

    statement of account or any documents showing the disbursal of

    the loan. This submission will not help the accused. The accused

    admitted in his statement recorded under Section 313 of the Cr.P.C.

    that he had taken the loan. Therefore, the disbursal of the loan was

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    not in dispute. As far as the production of a statement of account is

    concerned, the same is not required because of the presumption

    attached to the cheque that it was issued for consideration. It was

    .

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

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

    presumption under Section 139 of the NI Act would obviate the

    of
    requirement to prove the existence of consideration. It was

    observed:

    rt
    “20. The 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, and the 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.”

    30. 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 the cheque, which has not

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    been done in the present case. Pausing here, such
    presumption on the complainant, by the High Court, appears
    to be erroneous. The onus is not on the complainant at the
    threshold to prove his capacity/financial wherewithal to
    make the payment in discharge of which the cheque is

    .

    alleged to have been issued in his favour. Only if an objection

    is raised that the complainant was not in a financial position
    to pay the amount so claimed by him to have been given as a

    loan to the accused, only then would the complainant 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 a loan. In the case at hand, the

    of
    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
    rt
    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 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 comment that the reasoning of the High Court, as well as
    the First Appellate Court and Trial Court, on this issue is sound.
    Just by taking a counter-stand to raise a probable defence
    would not shift the onus on the complainant in such a case, for
    the plea of defence has to be buttressed by evidence, either oral

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    2026:HHC:28006

    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:

    of
    ’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
    rt
    are not a civil suit. At the time, when the complainant gives
    his evidence, unless a case is set up in the reply notice to the

    statutory notice sent, that the complainant did not have the
    wherewithal, it cannot be expected of the complainant to
    initially lead evidence to show that he had the financial
    capacity. To that extent, the courts in our view were right in

    holding on those lines. However, the accused has the right to
    demonstrate that the 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 the
    very same aspect by pointing to the materials produced by

    the complainant himself. He can further, more importantly,
    further achieve this result through the cross-examination of
    the witnesses of the complainant. Ultimately, it becomes the
    duty of the courts to consider carefully and appreciate the
    totality of the evidence and then come to a conclusion
    whether, in the given case, the accused has shown that the
    case of the complainant is in peril for the reason that the
    accused has established a probable defence.'(emphasis
    supplied)’ (underlining in original; emphasis supplied by
    us in bold).

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    2026:HHC:28006

    31. 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

    of
    liability. This Court is of the view that such an approach is
    not only prolonging the trial but is also contrary to the
    mandate of Parliament, namely, that the drawer and the
    rt
    bank must honour the cheque; otherwise, trust in cheques
    would be irreparably damaged.”

    32. Therefore, the complainant’s version cannot be doubted

    because no statement of account was produced.

    33. The accused claimed in his statement recorded under

    Section 313 of the Cr.P.C. that he had repaid the money; however, he

    had not produced any evidence to prove this fact. He did not file any

    receipt for the amount deposited by him in his loan account. He

    relied upon his statement recorded under Section 313 of the Cr.P.C.

    to establish his version. It was held in Sumeti Vij v. Paramount Tech

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

    accused has to lead defence evidence to rebut the presumption and

    mere denial in his statement under Section 313 of Cr.P.C is not

    sufficient to rebut the presumption. It was observed at page 700:

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    2026:HHC:28006

    “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.”

    of
    (Emphasis supplied)”

    34. Therefore, the learned Courts below had rightly
    rt
    disbelieved the version of the accused.

    35. Sushil Kumar (CW5) stated that the cheque was

    dishonoured with an endorsement “exceeds arrangements”. This

    statement is duly corroborated by the memo of dishonour

    (Ext.CW1/D) in which the reason for dishonour has been mentioned

    as “exceeds arrangement”. It was laid down by the Hon’ble

    Supreme Court in Mandvi Cooperative Bank Ltd. v. Nimesh B.

    Thakore, (2010) 3 SCC 83: (2010) 1 SCC (Civ) 625: (2010) 2 SCC (Cri) 1:

    2010 SCC OnLine SC 155 that the memo issued by the Bank is

    presumed to be correct and the burden is upon the accused to rebut

    the presumption. It was observed at page 95:

    “24. Section 146, making a major departure from the
    principles of the Evidence Act, provides that the bank’s slip
    or memo with the official mark showing that the cheque was

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    2026:HHC:28006

    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 ‘exceeds

    arrangements.’

    of

    37. Sushil Kumar (CW5) stated that the Bank had served a

    notice upon the accused. He denied in his cross-examination that
    rt
    no notice was served upon the accused. A denied suggestion does

    not amount to any proof and cannot be used to discard the

    complainant’s version. The Learned Court below had rightly held

    that the accused could have deposited the amount within 15 days of

    the receipt of the summons from the Court. It was laid down in C.C.

    Allavi Haji vs. Pala Pelly Mohd. 2007(6) SCC 555, that the person who

    claims that he had not received the notice has to pay the amount

    within 15 days from the date of the receipt of the summons from

    the Court and in case of failure to do so, he cannot take the

    advantage of the fact that notice was not received by him. It was

    observed:

    “It is also to be borne in mind that the requirement of giving
    notice is a clear departure from the rule of Criminal Law,
    where there is no stipulation of giving notice before filing a

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    2026:HHC:28006

    complaint. Any drawer who claims that he did not receive the
    notice sent by post, can, within 15 days of receipt of summons
    from the court in respect of the complaint under Section 138 of
    the Act, make payment of the cheque amount and submit to the
    Court that he had made payment within 15 days of receipt of

    .

    summons (by receiving a copy of the complaint with the

    summons) and, therefore, the complaint is liable to be rejected.
    A person who does not pay within 15 days of receipt of the

    summons from the Court, along with the copy of the complaint
    under Section 138 of the Act, cannot obviously contend that there
    was no proper service of notice as required under Section 138, by
    ignoring the statutory presumption to the contrary under Section

    of
    27 of the G.C. Act and Section 114 of the Evidence Act. In our
    view, any other interpretation of the proviso would defeat
    the very object of the legislation. As observed in Bhaskaran’s
    rt
    case (supra), if the giving of notice in the context of Clause

    (b) of the proviso was the same as the receipt of notice, a

    trickster cheque drawer would get the premium to avoid
    receiving the notice by adopting different strategies and
    escape from the legal consequences of Section 138 of the
    Act.” (Emphasis supplied)

    38. The accused did not claim that he had repaid the

    amount to the complainant; therefore, it was duly proved on record

    that the accused had failed to repay the amount despite the receipt

    of the demand notice.

    39. Thus, it was duly proved before the learned Trial Court

    that the accused had issued a cheque to discharge his legal liability,

    the cheque was dishonoured with an endorsement ‘exceeds

    arrangement’, and the accused failed to pay the money despite the

    receipt of a notice of demand. Hence, all the ingredients of the

    offence punishable under Section 138 of the NI Act were duly

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    2026:HHC:28006

    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.

    .

    40. Learned Trial Court had sentenced the accused to

    undergo simple imprisonment for 6 months and pay a fine of

    ₹3,00,000/-. It was submitted that the learned Trial Court had

    of
    imposed the maximum sentence without providing any

    justification for it. This submission cannot be accepted. Section 138
    rt
    of the NI Act provides the maximum punishment of 2 years, and

    the punishment of 6 months imprisonment is not maximum. 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 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 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.”

    41. Keeping in view the deterrent nature of the punishment,

    the sentence of six months cannot be said to be excessive.

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    2026:HHC:28006

    42. The cheque was issued for ₹2,23,000/- on 12.05.2016,

    Learned Trial Court imposed the sentence on 10.01.2023 after the

    lapse of about 7 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 twice the cheque

    of
    amount along with simple interest at the rate of 9% per annum. It

    was observed at page 291: –

    rt

    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 approach towards awarding
    compensation, and unless there exist special circumstances,

    the courts should uniformly levy fines up to twice the cheque
    amount along with simple interest @ 9% p.a. [R. Vijayan v.

    Baby, (2012) 1 SCC 260, para 20: (2012) 1 SCC (Civ) 79: (2012) 1
    SCC (Cri) 520]”

    43. The complainant had to engage a counsel to prosecute

    the complaint. It was deprived of the money that it would have

    gained by advancing the loan to another person and was entitled to

    be compensated. Learned Trial Court awarded a compensation of

    ₹3,00,000/-. The cheque was issued for ₹2,23,000/-, which means

    an amount of ₹77,000/- was awarded as compensation, which is

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    2026:HHC:28006

    not excessive considering the time elapsed between issuance of the

    cheque and the imposition of the sentence.

    44. No other point was urged.

    .

    45. In view of the above, there is no infirmity in the

    judgments and order passed by the learned courts below. Hence,

    the present revision fails and is dismissed.

    of

    46. The present revision stands disposed of, and so are the

    pending miscellaneous application(s), if any.

    rt

    47. The record of the learned Courts below be returned with

    a copy of the judgment.

    (Rakesh Kainthla)

    Judge
    10th July, 2026
    (Nikita)

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