Himachal Pradesh High Court
Keshwa Nand vs Acharya Mahinder Sharma on 3 July, 2026
Author: Sandeep Sharma
Bench: Sandeep Sharma
THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No.684 of 2025
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Date of Decision: 03.07.2026
_______________________________________________________
Keshwa Nand …….Petitioner
Versus
Acharya Mahinder Sharma … Respondents
_______________________________________________________
Coram:
of
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1For the Petitioner rt : Mr. Arun Kumar, Advocate.
For the Respondent : Mr. Jeevesh Sharma, Advocate.
_______________________________________________________Sandeep Sharma, Judge(oral):
Instant Criminal Revision petition filed under Section 438
read with Section 442 of the Bharatiya Nagarik Suraksha Sanhita,
lays challenge to judgment dated 08.09.2025, passed by learned
Sessions Judge, Shimla, District Shimla, Himachal Pradesh, in
Criminal Appeal No.133-S/10 of 2024, affirming judgment of
conviction and order of sentence dated 12.08.2024, passed by
learned Additional Chief Judicial Magistrate, Court No.1, Shimla,
District Shimla, Himachal Pradesh, in Computer Registration No.828
of 2021, titled Sh. Acharya Mahinder Sharma vs. Sh. Keshwa
Nandi, whereby learned trial Court, while holding petitioner-accused
(hereinafter referred to as the ‘accused’) guilty of his having
1
Whether the reporters of the local papers may be allowed to see the judgment?
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committed an offence punishable under Section 138 of the Negotiable
Instruments Act (for short ‘Act’), convicted and sentenced him to
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undergo simple imprisonment for a period of six months and pay
compensation to the tune of Rs. 2,00,000/- to the respondent-
complainant (hereinafter referred to as the complainant).
2. Precisely, the facts of the case, as emerge from the
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pleadings as well as other documents adduced on record by the
respective parties, are that the respondent-complainant instituted a
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complaint under Section 138 of the Act in the competent Court of law,
alleging therein that an agreement to sell dated 01.05.2017 was
entered between him and the accused, whereby accused agreed to
sell his land bearing Khasra Nos. 233, 235, measuring 6 Bighas,
situate at Chak Rauni Chadara, Tehsil Theog, District Shimla for total
consideration of ₹15,00,000/-. It also came to be agreed inter se
complainant and the accused that accused will execute sale deed of
the aforesaid land between 01.05.2017 to 31.05.2017. Though, as per
the agreement to sell dated 01.05.2017, complainant made payment
of ₹3,00,000/- to the accused as advance, out of the total sale
consideration of ₹15,00,000/-, at the time of entering into the
agreement to sell and thereafter paid ₹ 2,00,000/-(in total ₹5,00,000/-)
was paid to the accused by the complainant, but he failed to honour
the agreement to sell and the complainant requested the accused to
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return the amount of ₹ 5,00,000/-. The accused had made payment of
₹3,40,000/- to the complainant and for remaining amount he issued a
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cheque bearing No. 211912, dated 31.03.2021, amounting to ₹
1,60,000/- payable at PNB, branch Mul Matiana, Tehsil Theog.
However, aforesaid cheque on its presentation to the bank concerned
was dishonoured vide memo dated 30.06.2021 with the remarks
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“funds insufficient”. Immediately, after receipt of aforesaid return
memo, respondent-complainant served accused with legal notice
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dated 23.07.2021, thereby calling upon him to make payment good
within stipulated time, but since he failed to make the payment good
within stipulated time, complainant had no option, but to initiate
proceedings under Section 138 of the Act in the competent Court of
law, which subsequently, on the basis of evidence adduced on record
by the respective parties, held accused guilty of his having committed
offence punishable under S. 138 of the Act and accordingly, convicted
and sentenced him as per description given herein above.
3. Being aggrieved and dissatisfied with aforesaid
judgment of conviction and order of sentence recorded by learned trial
Court, present petitioner-accused preferred an appeal in the Court of
learned Sessions Judge, Shimla, District Shimla, Himachal Pradesh,
but same also came to be dismissed vide judgment dated 08.09.2025.
In the aforesaid background, petitioner-accused has approached this
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Court in the instant proceedings, praying therein for his acquittal after
quashing and setting aside the impugned judgment of conviction and
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order of sentence recorded by Courts below.
4. Vide order dated 08.12.2025, this Court suspended the
substantive sentence imposed by Court below, subject to petitioner-
accused furnishing personal bond and depositing 30% of the
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compensation amount within a period of six weeks. Though, afore
order stands complied with, but thereafter matter was repeatedly
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adjourned, enabling petitioner to deposit the remaining amount. On
24.02.2026, learned counsel for the petitioner informed this Court that
in terms of order dated 08.12.2025, 30% of the compensation amount
has been deposited and efforts are being made to explore the
possibility of amicable settlement. Today, during the proceedings of
the case, learned counsel for the petitioner on instructions submitted
that he had no liability, if any, of the amount, as detailed in the cheque
in question and as such, this Court may proceed to decide the case
on its own merit.
5.
6. Having heard learned counsel representing the parties
and perused material available on record vis-Ã -vis reasoning assigned
in the impugned judgment passed by learned Sessions Judge, Shimla
District Shimla, Himachal Pradesh, affirming judgment of conviction
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and order of sentence recorded by learned trial Court, this Court is not
persuaded to agree with learned counsel for the petitioner that both
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the Courts below have failed to appreciate the evidence in its right
perspective, rather this Court is convinced and satisfied that both the
Courts below have meticulously dealt with each and every aspect of
the matter and there is no scope left for interference.
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7. In his statement recorded under Section 313 Cr.P.C.,
though accused denied the case of the complainant in its totality and
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attempted to set up a defence that complainant had only paid him
₹3,00,000/-. He also stated that complainant had demanded blank
cheque from him and he issued the same. He also set up a case that
he did not receive any legal notice from the complainant. Though,
opportunity was granted to the accused to lead evidence, but he failed
to lead the evidence, as a result of which, opportunity to lead
evidence was closed by the Court order.
8. Pattern of cross-examination conducted upon the
complainant, if perused in its entirety, clearly establishes factum
with regard to issuance of cheque as well as signatures thereupon.
Though, accused attempted to carve out a case that his liability, if
any, towards the complainant was only to the extent of Rs. 3,00,000/-,
which he had paid, but such defence of him never came to be
probablized. By raising defence that complainant demanded blank
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cheque from the accused, which he had issued, accused virtually
admitted factum of his having issued cheque as well as signatures
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thereupon and as such, no illegality can be said to have been
committed by the Courts below while, invoking Sections 118 and 139
of the Act, which speak about presumption in favour of the holder of
the cheque that cheque was issued towards discharge of lawful
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liability. No doubt, aforesaid presumption is rebuttable, but to rebut
such presumption, accused either can refer to the documents and
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evidence led on record by the complainant or presumption can be
rebutted by leading positive evidence, if any. However, in the instant
case, despite sufficient opportunities, no evidence ever came to be
led on record at the behest of the petitioner-accused to probablize his
defence, which he attempted to set up while cross-examining the
witness of the complainant.
9. While examining himself as CW-1, complainant proved
all the ingredients as required for proving the offence punishable
under Section 138 of the Act. He also placed on record cheque Ex.
CW1A, dated 31.03.2021, amounting to Rs. 1, 60,000/-. To prove that
the cheque in question, issued by the accused towards discharge of
his lawful liability, was dishonoured, he placed on record return memo
Ex. CW1/B. He also proved on record that legal notice Ex. CW1/C
was served upon the accused vide postal receipt Ex. CW1/D dated
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23.07.2021 at his correct address, thereby calling upon him to make
the payment good within stipulated time. Cross-examination
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conducted upon aforesaid witness, nowhere suggests that accused
was able to extract anything contrary to what this witness stated in his
examination-in-chief. True it is that in his cross-examination,
complainant admitted that he has not produced any document
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suggestive of the fact that he had made payment of Rs.5, 00,000- to
the accused. He also admitted that he had not annexed with the
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complaint any statement of his bank account, but accused, while
admitting factum with regard to his having received sum of
Rs. 3, 00,000/- from the complainant, coupled with the fact that he
tried to carve out a case that blank cheque issued by him has been
misused by the complainant, clearly proves the case of the
complainant under Section 138 of the Act.
10. It also came to be argued at the behest of the accused
that time was essence of agreement to sell and sale deed was to be
executed between 01.05.2017 to 31.05.2017, which also finds
mention in the complaint. As per agreement to sell, if the buyer fails to
perform his part, then the token/earnest amount shall stands forfeited.
Since complainant failed to perform his part of contract, there was no
liability, if any, of the accused towards the complainant. Learned
counsel for the petitioner argued that learned Court below failed to
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appreciate this material aspect with respect to existence of legally
enforceable liability after lapse of time mentioned in the agreement to
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sell, therefore, the complaint was not legally maintainable.
11. Needless to say, in terms of Section 25 of the Indian
Contact Act, 1872, an agreement made without consideration is void,
meaning thereby it is not a legally binding contract. However, there
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are three exceptions to this rule making such agreement valid, if (1) it
is in writing and registered under the law for the time being in force for
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registration of documents, and is made on account of natural love and
affection between parties standing in near relations, (2) a written
promise to compensate, wholly or in part, a person who has already
voluntarily done something for the promisor; or (3) a promise, made in
writing and signed by the person to be charged therewith, or by his
agent generally or specially authorized in that behalf, to pay wholly or
in part a debt that is time barred. In terms of sub-Section (3) of
Section 25 of the Indian Contract Act, 1872, a promise made in writing
and signed by the person to be charged with, becomes a new
contract.
12. Though, it also came to be argued that debt had become
time barred, however this Court finds that limitation to recover the
advance amount expired on 31.05.2020, which falls within the period
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of extension of limitation and therefore, learned Court below rightly
concluded that debt cannot be termed as time barred.
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13. In the instant case, accused also attempted to set up a
defence that he had not received any legal notice. However, having
taken of the judgment passed by Hon’ble Apex Court in C.C.Alavi
Haji vs. Palapetty Muhammad and another, AIR 2007(SUPP) 1705,
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the aforesaid contention deserves outright rejection. Even if it is
presumed that no notice was received by the accused, in that
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eventuality also, it was open for the accused to make the payment
within period of 15 days from the date of receipt of summons from the
Court, which petitioner-accused failed to do. Moreover, this Court
finds that evidence led on record, especially acknowledgment clearly
establishes factum of service of legal notice upon the accused, but yet
he failed to comply with the mandate contained in the same and as
such, complainant had no option, but to institute the proceedings
under Section 138 of the Act.
14. The Hon’ble Apex Court in M/s Laxmi Dyechem V.
State of Gujarat, 2013(1) RCR(Criminal), has categorically held that
if the accused is able to establish a probable defence which creates
doubt about the existence of a legally enforceable debt or liability, the
prosecution can fail. To raise probable defence, accused can rely on
the materials submitted by the complainant. Needless to say, if the
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accused/drawer of the cheque in question neither raises a probable
defence nor is able to contest existence of a legally enforceable debt
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or liability, statutory presumption under Section 139 of the Negotiable
Instruments Act, regarding commission of the offence comes into
play. It would be profitable to reproduce relevant paras No.23 to 25 of
the judgment herein:-
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“23. Further, a three judge Bench of this Court in the
matter of Rangappa vs. Sri Mohan [3] held that Section 139 is
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an example of a reverse onus clause that has been included
in furtherance of the legislative objective of improving the
credibility of negotiable instruments. While Section 138 of the
Act specifies the strong criminal remedy in relation to thedishonour of the cheques, the rebuttable presumption under
Section 139 is a device to prevent undue delay in the course
of litigation. The Court however, further observed that it must
be remembered that the offence made punishable by Section
138can be better described as a regulatory offence since the
bouncing of a cheque is largely in the nature of a civil wrongwhose money is usually confined to the private parties
involved in commercial transactions. In such a scenario, the
test of proportionality should guide the construction and
interpretation of reverse onus clauses and the defendant
accused cannot be expected to discharge an unduly highstandard of proof”. The Court further observed that it is a
settled position that when an accused has to rebut the
presumption under Section 139, the standard of proof fordoing so is all preponderance of probabilities.
24. Therefore, if the accused is able to establish a
probable defence which creates doubt about the existence of
a legally enforceable debt or liability, the prosecution can fail.
The accused can rely on the materials submitted by the
complainant in order to raise such a defence and it is
inconceivable that in some cases the accused may not need
to adduce the evidence of his/her own. If however, the
accused/drawer of a cheque in question neither raises a
probable defence nor able to contest existence of a legally
enforceable debt or liability, obviously statutory presumption
under Section 139 of the NI Act regarding commission of the
offence comes into play if the same is not rebutted with regard
to the materials submitted by the complainant.
25. It is no doubt true that the dishonour of cheques
in order to qualify for prosecution under Section 138 of
the NI Act precedes a statutory notice where the drawer
is called upon by allowing him to avail the opportunity
to arrange the payment of the amount covered by the
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cheque and it is only when the drawer despite the
receipt of such a notice and despite the opportunity to
make the payment within the time stipulated under the
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statute does not pay the amount, that the said default
would be considered a dishonour constituting an
offence, hence punishable. But even in such cases, the
question whether or not there was lawfully recoverable
debt or liability for discharge whereof the cheque was
issued, would be a matter that the trial court will have
to examine having regard to the evidence adduced
before it keeping in view the statutory presumption that
unless rebutted, the cheque is presumed to have been
issued for a valid consideration. In view of this the
responsibility of the trial judge while issuing summons
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to conduct the trial in matters where there has been
instruction to stop payment despite sufficiency of
funds and whether the same would be a sufficient
ground to proceed in the matter, would be extremely
rtheavy.
15. Reliance in this regard is placed upon judgment passed by the
Hon’ble Apex Court in Bir Singh Vs. Mukesh Kumar, (2019) 4 SCC 197,
wherein it was observed as under:
“37. A meaningful reading of the provisions of the Negotiable
Instruments Act including, in particular, Sections 20, 87 and 139,
makes it amply clear that a person who signs a cheque and makes it
over to the payee remains liable unless he adduces evidence torebut the presumption that the cheque had been issued for payment
of a debt or in discharge of a liability. It is immaterial that the chequemay have been filled in by any person other than the drawer, if the
cheque is duly signed by the drawer. If the cheque is otherwisevalid, the penal provisions of Section 138 would be attracted.
38. answered in the negative.
40. Even a blank cheque leaf, voluntarily signed and handed over by
the accused, which is towards some payment, would attract
presumption under Section 139 of the Negotiable Instruments Act, in
the absence of any cogent evidence to show that the cheque was
not issued in discharge of a debt.
41. The fact that the appellant-complainant might have been an
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12make any difference to the law relating to the dishonour of a cheque.
The fact that the loan may not have been advanced by a cheque or.
demand draft or a receipt might not have been obtained would make
no difference. In this context, it would, perhaps, not be out of context
to note that the fact that the respondent-accused should have given
or signed blank cheque to the appellant- complainant, as claimed bythe respondent-accused, shows that initially there was mutual trust
and faith between them.
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42. In the absence of any finding that the cheque in question
was not signed by the respondent-accused or not voluntarily
made over to the payee and in the absence of any evidence with
regard to the circumstances in which a blank signed cheque had
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presumed that the cheque was filled in by the appellant-
complainant being the payee in the presence of the respondent-
accused being the drawer, at his request and/or with his
acquiescence. The subsequent filling in of an unfilled signed
cheque is not an alteration. There was no change in the amountof the cheque, its date or the name of the payee. The High Court
ought not to have acquitted the respondent-accused of the
charge under Section 138 of the Negotiable Instruments Act.
16. By now it is well settled that dishonour of cheque issued
as “security” can also attract offence under Section 138 of the
Negotiable Instruments Act. Hon’ble Apex Court in case titled Sripati
Singh v. State of Jharkhand, Criminal Appeal No. 1269-1270 of
2021, decided on 28.10.2021, has held as under:
“16. A cheque issued as security pursuant to a financial
transaction cannot be considered as 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
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13repay 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 between the parties to defer
the payment of 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 presentation, if the same isdishonoured, the consequences contemplated under Section
138 and the other provisions of N.I. Act would flow.
17. Needless to say, expression “security cheque” is not a
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statutorily defined expression in the Negotiable Instruments Act,
rather same is to be inferred from the pleadings as well as evidence, if
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any, led on record with regard to issuance of security cheque. The
Negotiable Instruments Act does not per se carve out an exception in
respect of a “security cheque” to say that a complaint in respect of
such a cheque would not be maintainable as there is a debt existing
in respect whereof the cheque in question is issued, same would
attract provision of Section 138 of the Act in case of its dishonour.
18. Having scanned the entire evidence adduced on record
by the respective parties, this Court finds that all the basic ingredients
of Section 138 of the Act are met in the case at hand. Similarly,
factum with regard to signatures and issuance of cheque by the
accused towards discharge of lawful liability stands duly established
on record.
19. Moreover, this Court has a very limited jurisdiction under
Section 397 of the Cr.P.C, to re-appreciate the evidence, especially,
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in view of the concurrent findings of fact and law recorded by the
courts below. In this regard, reliance is placed upon the judgment
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passed by Hon’ble Apex Court in case “State of Kerala Vs.
Puttumana Illath Jathavedan Namboodiri” (1999) 2 Supreme Court
Cases 452, wherein it has been held as under:-
“In its revisional jurisdiction, the High Court can call for and
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examine the record of any proceedings for the purpose of
satisfying 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 miscarriage of justice. But the
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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 beappropriate for the High Court to re-appreciate the evidence
and come to its own conclusion on the same when the
evidence has already been appreciated by the Magistrate as
well as Sessions Judge in appeal, unless any glaring feature
is brought to the notice of the High Court which wouldotherwise tantamount to gross miscarriage of justice.”
20. Since after having carefully examined the evidence in the
present case, this Court is unable to find any error of law as well as
fact, if any, committed by the courts below, while passing impugned
judgments, there is no occasion, whatsoever, to exercise the
revisional power.
21. True it is that the Hon’ble Apex Court in Krishnan and
another Versus Krishnaveni and another, (1997) 4 Supreme
Court Case 241; has held that in case Court notices that there is a
failure of justice or misuse of judicial mechanism or procedure,
sentence or order is not correct, it is salutary duty of the High Court to
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prevent the abuse of the process or miscarriage of justice or to correct
irregularities/ incorrectness committed by inferior criminal court in its
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judicial process or illegality of sentence or order, but learned counsel
representing the accused has failed to point out any material
irregularity committed by the courts below while appreciating the
evidence and as such, this Court sees no reason to interfere with the
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well reasoned judgments passed by the courts below.
22. Consequently, in view of the discussion made herein
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above as well as law laid down by the Hon’ble Apex Court, this Court
sees no valid reason to interfere with the well reasoned judgments
recorded by the Courts below, which otherwise, appear to be based
upon proper appreciation of evidence available on record and as
such, same are upheld.
23. Accordingly, the present criminal revision petition is
dismissed being devoid of any merit. The petitioner is directed to
surrender himself before the learned trial Court within a period of eight
weeks days to serve the sentence as awarded by the learned trial
Court, if not already served. Bail bonds of the petitioner are cancelled.
Interim direction, if any, stands vacated. Pending applications, if any,
also stand disposed of.
24. The amount lying deposited with the learned trial Court is
ordered to be released in favour of the respondent/complainant, by
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remitting the same in his saving bank account,t, details whereof, shall
be furnished by learned counsel for the petitioner within a period of
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one week.
(Sandeep Sharma),
Judge
July 03,2026
(shankar)
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