Himachal Pradesh High Court
Naresh Kumar vs Surender Kumar Goel on 15 July, 2026
2026:HHC:28737
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 333 of 2026
Reserved on: 6.7.2026
.
Date of Decision: 15.7.2026.
Naresh Kumar ...Petitioner
Versus
Surender Kumar Goel ...Respondent
of
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
rt
Whether approved for reporting?1
For the Petitioner : Mr Raman Parashar, Advocate.
For the Respondent : Nemo.
Rakesh Kainthla, Judge
The present revision is directed against the judgment
dated 06.04.2026, passed by the learned Additional Sessions
Judge-I, Solan, District, Solan, HP, (learned Appellate Court)
vide which the judgment of conviction dated 23.08.2024 and
order of sentence dated 03.09.2024, passed by the learned
Additional Chief Judicial Magistrate, Kasauli, District Solan, H.P.
(learned Trial Court) were upheld. (The parties shall hereinafter be
referred 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.
::: Downloaded on – 15/07/2026 20:33:22 :::CIS
2
2026:HHC:28737
2. Briefly stated, the facts giving rise to the present
petition are that the complainant filed a complaint against the
.
accused before the learned Trial Court for the commission of an
offence punishable under Section 138 of the NI Act. It was
asserted that the complainant had advanced ₹5,00,000/- to the
accused on 09.07.2020 on his demand through cheque. The
of
accused assured to repay the amount within 6 months. The
complainant demanded the money after 6 months, but the
rt
accused prevaricated. He issued a cheque of ₹5,00,000/- in
favour of the complainant on 20.02.2022 to repay the money.
The complainant presented the cheque to his bank, but it was
dishonoured with an endorsement ‘funds insufficient’. The
complainant issued a legal notice to the accused, which was duly
served. However, the accused failed to repay the money despite
the receipt of the notice of demand. Hence, the 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
::: Downloaded on – 15/07/2026 20:33:22 :::CIS
3
2026:HHC:28737
punishable under Section 138 of the NI Act, to which he pleaded
not guilty and claimed to be tried.
.
4. The complainant examined Rohit (CW1), himself
(CW2), Chandan (CW3) and Amarjeet (CW4) to prove his
complaint.
of
5. The accused, in his statement recorded under Section
313 of the Code of Criminal Procedures (Cr.PC), admitted that he
rt
had borrowed ₹5,00,000/- from the complainant in July 2020,
which was paid through a cheque to him. He admitted that he
had received a legal notice. He did not produce any evidence in
his defence.
6. The learned Trial Court held that the accused had
admitted the taking of the money, issuance of the cheque and
the receipt of the notice. A presumption arose that the cheque
was issued for consideration to discharge the debt/liability. The
admission made by the accused in his statement recorded under
Section 313 of the Cr.PC strengthened the presumption that the
cheque was issued for consideration. The cheque was
dishonoured with an endorsement ‘insufficient funds’. The
accused failed to repay the money despite the receipt of a valid
::: Downloaded on – 15/07/2026 20:33:22 :::CIS
4
2026:HHC:28737
notice of demand. 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 9 months and pay a compensation of ₹ 5,70,000/-.
of
7. Being aggrieved by the judgment and order passed by
the learned Trial Court, the accused filed an appeal which was
rt
decided by the learned Additional Sessions Judge, Solan, District
Solan, H.P. (learned Appellate Court). The Appellate Court
concurred with the findings recorded by the learned Trial Court
that 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 admitted the complainant’s case
that he had borrowed 5,00,000/- from the complainant. The
cheque was dishonoured with an endorsement ‘insufficient
funds’. The notice was duly served upon the accused. Learned
Trial Court had imposed an adequate sentence, and no
interference was required with the judgment and order passed
by the learned Trial Court. Hence, the appeal was dismissed.
::: Downloaded on – 15/07/2026 20:33:22 :::CIS
5
2026:HHC:28737
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 holding
that there was no valid service of notice. The notice was sent to
village Anhech, whereas the name of the petitioner’s village is
Nahech. The notice was served upon some person who signed it
of
as Naresh. The delivery report was only marked and not
exhibited; hence, it cannot be read in evidence. In the absence of
rt
proof of the date of service, a presumption would have to be
applied, and the complaint would be premature. 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 M/s Raman Parashar and Virender
Singh, learned counsel for the petitioner/accused,
10. Mr Raman Parashar, learned counsel for the
petitioner/accused, submitted that the notice was not served
upon the accused. It was sent to a different address, and the
learned Courts below erred in convicting and sentencing the
accused. Therefore, he prayed that the present revision be
::: Downloaded on – 15/07/2026 20:33:22 :::CIS
6
2026:HHC:28737
allowed and the judgments and order passed by the learned
Courts below be set aside.
.
11. I have given a considerable thought to the
submissions made at the bar and have gone through the records
carefully.
of
12. It was laid down by the Hon’ble Supreme Court in
Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204:
rt
(2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that a revisionalcourt 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 adetailed appreciation of the material and evidence
brought on record. The High Court in criminal revision
against conviction is not supposed to exercise thejurisdiction 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
that is to be determined on the merits of individual cases.
It is also well settled that while considering the same, the::: Downloaded on – 15/07/2026 20:33:22 :::CIS
72026:HHC:28737
Revisional Court does not dwell at length upon the facts
and evidence of the case to reverse those findings.
13. This position was reiterated in State of Gujarat v.
.
DilipsinhKishorsinh 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
of
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
rt
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 aninferior 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 isto 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,::: Downloaded on – 15/07/2026 20:33:22 :::CIS
82026:HHC:28737
material evidence is ignored, or judicial discretion is
exercised arbitrarily or perversely. These are not
exhaustive classes, but are merely indicative. Each
case would have to be determined on its own merits.
.
13. Another well-accepted norm is that the revisional
jurisdiction of the higher court is a very limited one and
cannot be exercised in a routine manner. One of the
inbuilt restrictions is that it should not be against an
interim or interlocutory order. The Court has to keep in
mind that the exercise of revisional jurisdiction itself
of
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
rt
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.”
14. It was held in Kishan Rao v. Shankargouda, (2018) 8
SCC 165: (2018) 3 SCC (Cri) 544: (2018) 4 SCC (Civ) 37: 2018 SCC
OnLine SC 651 that it is impermissible for the High Court to
reappreciate the evidence and come to its conclusions in the
absence of any perversity. It was observed at page 169:
“12. This Court has time and again examined the scope of
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::: Downloaded on – 15/07/2026 20:33:22 :::CIS
92026:HHC:28737
propriety of any finding, sentence or order. In other
words, the jurisdiction is one of supervisory
jurisdiction exercised by the High Court for
correcting a miscarriage of justice. But the said.
revisional power cannot be equated with the power
of an appellate court, nor can it be treated even as a
second appellate jurisdiction. Ordinarily, therefore,it would not be appropriate for the High Court to
reappreciate the evidence and come to its
conclusion on the same when the evidence hasof
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
rt
miscarriage of justice. On scrutinising the
impugned judgment of the High Court from theaforesaid 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 SanjaysinhRamrao 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
::: Downloaded on – 15/07/2026 20:33:22 :::CIS
10
2026:HHC:28737
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
of
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
rt 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.”
15. 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.
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.”
::: Downloaded on – 15/07/2026 20:33:22 :::CIS
11
2026:HHC:28737
16. A similar view was taken in Sanjabij Tari v. Kishore S.
Borcar, 2025 SCC OnLine SC 2069, wherein it was observed:
.
“27. It is well settled that in exercise of revisional
jurisdiction, the High Court does not, in the absence of
perversity, upset concurrent factual findings [See: BirSingh(supra)]. This Court is of the view that it is not for
the Revisional Court to re-analyse and re-interpret the
evidence on record. As held by this Court in Southern Salesof
& 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
rt
absence of a jurisdictional error.
28. Consequently, this Court is of the view that in the
absence of perversity, it was not open to the High Court in
the present case, in revisional jurisdiction, to upset the
concurrent findings of the Trial Court and the Sessions
Court.
17. The present revision has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
18. The complainant reiterated the contents of the
complaint in his proof affidavit (Ex.CW2/A). He stated in his
cross-examination that he had an annual income of ₹8-10 lacs
from his karyana shop. He had paid the money to the accused
through a cheque, and no written document was prepared. He
had mentioned the payment to the accused in his Income Tax
Return. The accused had handed over two cheques to him, first
::: Downloaded on – 15/07/2026 20:33:22 :::CIS
12
2026:HHC:28737
on 20.02.2022 and second on 25.02.2022. He denied that he had
filled the amount in the cheque.
.
19. The accused admitted in his statement recorded un-
der Section 313 of the Cr.PC. that he had borrowed ₹5,00,000/-
from the complainant and the complainant had paid the money
to him through cheque. He had also admitted his signature on
of
the cheque and the issuance of the cheque. It was laid down by
the Hon’ble Supreme Court in State of Maharashtra v. Sukhdev
rt
Singh, (1992) 3 SCC 700: 1992 SCC (Cri) 705: 1992 SCC OnLine SC
421 that the Courts can rely upon the statement of the accused
recorded under section 313 of the Cr.P.C. It was observed at page
742:
“51. That brings us to the question of whether such a
statement recorded under Section 313 of the Code canconstitute the sole basis for conviction. Since no oath is
administered to the accused, the statements made by theaccused will not be evidence stricto sensu. That is why
sub-section (3) says that the accused shall not render
himself liable to punishment if he gives false answers.
Then comes sub-section (4), which reads:
“313. (4) The answers given by the accused may be
taken into consideration in such inquiry or trial, and
put in evidence for or against him in any other
inquiry into, or trial for, any other offence which
such answers may tend to show he has committed.”
Thus, the answers given by the accused in response to his
examination under Section 313 can be taken into
::: Downloaded on – 15/07/2026 20:33:22 :::CIS
13
2026:HHC:28737
consideration in such an inquiry or trial. This much is
clear on a plain reading of the above sub-section.
Therefore, though not strictly evidence, sub-section (4)
permits that it may be taken into consideration in the said
.
inquiry or trial. See State of Maharashtra v. R.B. Chowdhari
(1967) 3 SCR 708: AIR 1968 SC 110: 1968 Cri LJ 95. This
Court, in the case of Hate Singh Bhagat Singh v. State of
M.B. 1951 SCC 1060: 1953 Cri LJ 1933: AIR 1953 SC 468, held
that an answer given by an accused under Section 313
examination can be used for proving his guilt as much as
of
the evidence given by a prosecution witness. In Narain
Singh v. State of Punjab (1963) 3 SCR 678: (1964) 1 Cri LJ
730, this Court held that if the accused confesses to the
commission of the offence with which he is charged, the
rt
Court may, relying upon that confession, proceed to
convict him. To state the exact language in which the
three-Judge bench answered the question, it would be
advantageous to reproduce the relevant observations at
pages 684-685:
“Under Section 342 of the Code of Criminal
Procedure by the first sub-section, insofar as it is
material, the Court may at any stage of the enquiry
or trial and after the witnesses for the prosecutionhave been examined and before the accused is
called upon for his defence shall put questions tothe accused person for the purpose of enabling him
to explain any circumstance appearing in theevidence against him. Examination under Section
342 is primarily to be directed to those matters on
which evidence has been led for the prosecution to
ascertain from the accused his version or
explanation, if any, of the incident which forms the
subject-matter of the charge and his defence. By
sub-section (3), the answers given by the accused
may ‘be taken into consideration’ at the enquiry or
the trial. If the accused person in his examination
under Section 342 confesses to the commission of the
offence charged against him the court may, relying::: Downloaded on – 15/07/2026 20:33:22 :::CIS
142026:HHC:28737
upon that confession, proceed to convict him, but if he
does not confess and in explaining circumstance
appearing in the evidence against him sets up his
own version and seeks to explain his conduct.
pleading that he has committed no offence, the
statement of the accused can only be taken into
consideration in its entirety.” (emphasis supplied)Sub-section (1) of Section 313 corresponds to sub-section
(1) of Section 342 of the old Code, except that it now
stands bifurcated in two parts with the proviso addedof
thereto clarifying that in summons cases where the
presence of the accused is dispensed with, his
examination under clause (b) may also be dispensed with.
Sub-section (2) of Section 313 reproduces the old sub-
rt
section (4), asd the present sub-section (3) corresponds
to the old sub-section (2) except for the change
necessitated on account of the abolition of the jury
system. The present sub-section (4) with which we are
concerned is a verbatim reproduction of the old sub-
section (3). Therefore, the aforestated observations apply
with equal force.”
20. It was laid down by the Hon’ble Supreme Court in
Mohan Singh v. Prem Singh, (2002) 10 SCC 236: 2003 SCC (Cri)
1514: 2002 SCC OnLine SC 933, that the statement made by the
accused under Section 313 Cr.P.C. can be used to lend credence to
the evidence led by the prosecution, but such statement cannot
form the sole basis for conviction. It was observed at page 244:
27. The statement made in defence by the accused under
Section 313 CrPC can certainly be taken aid of to lend
credence to the evidence led by the prosecution, but only
a part of such statement under Section 313 of the Code of
Criminal Procedure cannot be made the sole basis of his
conviction. The law on the subject is almost settled that::: Downloaded on – 15/07/2026 20:33:22 :::CIS
152026:HHC:28737
the statement under Section 313 CrPC of the accused can
either be relied on in whole or in part. It may also be
possible to rely on the inculpatory part of his statement if
the exculpatory part is found to be false on the basis of.
the evidence led by the prosecution. See Nishi Kant Jha v.
State of Bihar (1969) 1 SCC 347: AIR 1969 SC 422: (SCC pp.
357-58, para 23)
“23. In this case, the exculpatory part of the
statement in Exhibit 6 is not only inherently
improbable but is contradicted by the other
of
evidence. According to this statement, the injury
that the appellant received was caused by the
appellant’s attempt to catch hold of the hand of Lal
Mohan Sharma to prevent the attack on the victim.
rt
This was contradicted by the statement of the
accused himself under Section 342 CrPC to the effect
that he had received the injury in a scuffle with a
herdsman. The injury found on his body when he
was examined by the doctor on 13-10-1961,
negatives of both these versions. Neither of these
versions accounts for the profuse bleeding which led
to his washing his clothes and having a bath in River
Patro, the amount of bleeding and the washing of
the bloodstains being so considerable as to attract
the attention of Ram Kishore Pandey, PW 17 and
asking him about the cause thereof. The bleeding
was not a simple one as his clothes all got stained
with blood, as also his books, his exercise book, his
belt and his shoes. More than that, the knife which
was discovered on his person was found to have
been stained with blood according to the report of
the Chemical Examiner. According to the post-
mortem report, this knife could have been the cause
of the injuries on the victim. In circumstances like
these, there being enough evidence to reject the
exculpatory part of the statement of the appellant in
Exhibit 6, the High Court had acted rightly in accepting
the inculpatory part and piercing the same with the
other evidence to come to the conclusion that the
::: Downloaded on – 15/07/2026 20:33:22 :::CIS
16
2026:HHC:28737
appellant was the person responsible for the crime.”
(emphasis supplied)
21. It was laid down in Ramnaresh v. State of Chhattisgarh,
.
(2012) 4 SCC 257: (2012) 2 SCC (Cri) 382: 2012 SCC OnLine SC 213,
that the statement of the accused under Section 313 Cr.P.C., in so
far as it supports the prosecution’s case, can be used against
of
him for recording a conviction. It was observed at page 275: –
“52. It is a settled principle of law that the obligation to
put material evidence to the accused under Section 313
rt
CrPC is upon the court. One of the main objects of
recording a statement under this provision of the CrPC isto give an opportunity to the accused to explain the
circumstances appearing against him as well as to put
forward his defence, if the accused so desires. But once he
does not avail this opportunity, then consequences in lawmust follow. Where the accused takes benefit of this
opportunity, then his statement made under Section 313
CrPC, insofar as it supports the case of the prosecution,can be used against him for rendering a conviction. Even
under the latter, he faces the consequences in law.”
22. This position was reiterated in Ashok Debbarma v.
State of Tripura, (2014) 4 SCC 747: (2014) 2 SCC (Cri) 417: 2014 SCC
OnLine SC 199, and it was held that the statement of the accused
recorded under Section 313 of the Cr.P.C. can be used to lend
corroboration to the statements of prosecution witnesses. It
was held at page 761: –
24. We are of the view that, under Section 313 statement,
if the accused admits that, from the evidence of various::: Downloaded on – 15/07/2026 20:33:22 :::CIS
172026:HHC:28737
witnesses, four persons sustained severe bullet injuries
by the firing by the accused and his associates, that
admission of guilt in Section 313 statement cannot be
brushed aside. This Court in State of Maharashtra v.
.
Sukhdev Singh [(1992) 3 SCC 700: 1992 SCC (Cri) 705 held
that since no oath is administered to the accused, the
statement made by the accused under Section 313 CrPC
will not be evidence stricto sensu and the accused, of
course, shall not render himself liable to punishment
merely on the basis of answers given while he was being
of
examined under Section 313 CrPC. But, sub-section (4)
says that the answers given by the accused in response to
his examination under Section 313 CrPC can be taken
into consideration in such an inquiry or trial. This Court
rt
in Hate Singh Bhagat Singh v. State of Madhya Bharat, 1951
SCC 1060: AIR 1953 SC 468: 1953 Cri LJ 1933 held that the
answers given by the accused under Section 313
examination can be used for proving his guilt as much as
the evidence given by the prosecution witness. In Narain
Singh v. State of Punjab (1964) 1 Cri LJ 730: (1963) 3 SCR
678, this Court held that when the accused confesses to
the commission of the offence with which he is charged,
the court may rely upon the confession and proceed to
convict him.
25. This Court in Mohan Singh v. Prem Singh (2002) 10
SCC 236: 2003 SCC (Cri) 1514 held that: (SCC p. 244, para
27)
“27. The statement made in defence by the
accused under Section 313 CrPC can certainly be
taken aid of to lend credence to the evidence led
by the prosecution, but only a part of such
statement under Section 313 CrPC cannot be
made the sole basis of his conviction.”
In this connection, reference may also be made to the
judgments of this Court in Devender Kumar Singla v.
Baldev Krishan Singla (2005) 9 SCC 15: 2005 SCC (Cri) 1185
and Bishnu Prasad Sinha v. State of Assam (2007) 11 SCC
467: (2008) 1 SCC (Cri) 766. The abovementioned decisions
::: Downloaded on – 15/07/2026 20:33:22 :::CIS
18
2026:HHC:28737
would indicate that the statement of the accused under
Section 313 CrPC for the admission of his guilt or
confession as such cannot be made the sole basis for
finding the accused guilty, the reason being he is not
.
making the statement on oath, but all the same the
confession or admission of guilt can be taken as a piece of
evidence since the same lends credence to the evidence
led by the prosecution.
26. We may, however, indicate that the answers given by
the accused while examining him under Section 313, fully
of
corroborate the evidence of PW 10 and PW 13 and hence
the offences levelled against the appellant stand proved,
and the trial court and the High Court have rightly found
him guilty for the offences under Sections 326, 436 and
rt
302 read with Section 34 IPC.”
23. Thus, the learned Courts below had rightly held that
the issuance of the cheque and the signatures on the cheque
were not in dispute. It was laid down by the Hon’ble Supreme
Court in APS Forex Services (P) Ltd. v. Shakti International Fashion
Linkers (2020) 12 SCC 724, that when the issuance of a cheque
and signature on the cheque are not disputed, a presumption
would arise that the cheque was issued in discharge of the legal
liability. It was observed: –
“9. Coming back to the facts in the present case and
considering the fact that the accused has admitted the
issuance of the cheques and his signature on the cheque
and that the cheque in question was issued for the second
time after the earlier cheques were dishonoured and that
even according to the accused some amount was due and
payable, there is a presumption under Section 139 of the
NI Act that there exists a legally enforceable debt or::: Downloaded on – 15/07/2026 20:33:22 :::CIS
192026:HHC:28737
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 offurther evidence to rebut the presumption, and more
particularly, the cheque in question was issued for the
second time after the earlier cheques were dishonoured.
of
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
rt
139 of the NI Act. It appears that both the learned trial
court as well as the High Court have committed an error inshifting 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 onusclause 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 ofthe complainant that there exists legally enforceable debt
or liability and thereafter, it is for the accused to rebutsuch presumption by leading evidence.”
24. In N. Vijay Kumar v. Vishwanath Rao N., 2025 SCC
OnLine SC 873 this position was reiterated, 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,::: Downloaded on – 15/07/2026 20:33:22 :::CIS
202026:HHC:28737
meaning they can be rebutted by the accused by raising a
probable defence.”
25. 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
of
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
rt
the NI Act that the cheque in question was drawn for
consideration and the presumption under Section 139 ofthe 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-JudgeBench 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 chequesas 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].
26. Thus, the Court has to start with the presumption
that the cheque was issued in discharge of the liability for
::: Downloaded on – 15/07/2026 20:33:22 :::CIS
21
2026:HHC:28737
consideration, and the burden is upon the accused to rebut this
presumption.
.
27. The complainant’s cross-examination does not show
that the cheque was not issued for consideration. The accused
admitted that he had borrowed ₹5,00,000 from the
complainant, and the existence of consideration was duly
of
proved. The complainant’s version was duly corroborated by the
statement of Rohit, who proved the statement of account
rt
(Ex.CW1/A), in which the payment of ₹5,00,000 is shown to have
been made by means of a cheque. Thus, the learned Courts below
had rightly held that the accused had failed to rebut the
presumption attached to the cheque.
28. Amarjeet (CW4) proved that the cheque was
dishonoured with an endorsement ‘funds insufficient’. This is
duly corroborated by the return memo (Ex.CW2/D). 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:
::: Downloaded on – 15/07/2026 20:33:22 :::CIS
22
2026:HHC:28737
“24. Section 146, making a major departure from the
principles of the Evidence Act, provides that the bank’s
slip or memo with the official mark showing that the
cheque was dishonoured would, by itself, give rise to the.
presumption of dishonour of the cheque, unless and until
that fact was disproved. Section 147 makes the offences
punishable under the Act compoundable.”
29. In the present case, no evidence was produced to
rebut the presumption, and the learned Courts below had rightly
of
held that the cheque was dishonoured with an endorsement
‘insufficient funds.’
rt
30. The complainant asserted that he had issued a notice
to the accused, which was duly served upon him. It was
submitted that the notice was not sent to the correct address and
was sent to Village Anhech instead of Village Nahech. This
submission will not help the accused. Both the learned Courts
below have concurrently held that the accused admitted the
receipt of notice. Therefore, the plea that the notice was not
received by him is not acceptable. 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
::: Downloaded on – 15/07/2026 20:33:22 :::CIS
23
2026:HHC:28737
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 beforefiling a 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 underof
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
rt
liable to be rejected. A person who does not pay within 15
days of receipt of the summons from the Court, along with thecopy 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 27 of the G.C. Actand 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 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 trickstercheque 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)
31. 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.
::: Downloaded on – 15/07/2026 20:33:22 :::CIS
24
2026:HHC:28737
32. Therefore, the learned Trial Court had rightly held
that the accused had issued the cheque to discharge his liability,
.
the cheque was dishonoured with an endorsement ‘insufficient
funds’ and the accused failed to pay the money despite the
receipt of notice of demand. Hence, all the ingredients of the
commission of offences punishable under Section 138 of the NI
of
Act were duly satisfied, and the learned Trial Court had rightly
convicted the accused for the commission of an offence
rt
punishable under Section 138 of the NI Act. Act.
33. Learned Trial Court sentenced the accused to
undergo simple imprisonment for 9 months and pay a
compensation of ₹5,70,000. 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::: Downloaded on – 15/07/2026 20:33:22 :::CIS
252026:HHC:28737
instruments such as cheques without serious intention to
honour the promise implicit in the issuance of the same.”
34. Keeping in view the deterrent nature of the
.
punishment, the sentence of five months cannot be said to be
excessive.
35. In the present case, the cheque was issued on
of
20.02.2022. The Learned Trial Court imposed the sentence on
03.09.2024 after the lapse of two and a half years. It was laid
rt
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 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 settledprinciples 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]”
::: Downloaded on – 15/07/2026 20:33:22 :::CIS
26
2026:HHC:28737
36. In the present case, the complainant had to engage
counsel. He lost interest in the money that he would have gained
.
by investing it somewhere. He was entitled to be compensated
for the loss, and the amount of ₹70,000/- awarded as
compensation cannot be said to be excessive, requiring any
interference from the Court.
of
37. No other point was urged.
38.
rt
In view of the above, there is no infirmity in thejudgments passed by the learned Courts below; hence, the
present petition fails, and it is dismissed, so also the pending
applications, if any.
39. A copy of the judgment, along with records of the
learned Courts below, be sent back forthwith.
(Rakesh Kainthla)
Judge15th July, 2026
(Chander)::: Downloaded on – 15/07/2026 20:33:22 :::CIS
