Himachal Pradesh High Court
Nitin Chauhan vs Hem Chand on 7 May, 2026
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Criminal Revision No.581 of 2025
Date of Decision: 7.5.2026
_____________________________________________________________________
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Nitin Chauhan
.........Petitioner
Versus
Hem Chand
.......Respondent
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?
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For the Petitioner: Mr. Rajat Kumar, Advocate.
For the Respondent: Mr. Jagan Nath, Advocate.
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Sandeep Sharma, J. (Oral)
Instant criminal revision petition, lays challenge to judgment
dated 21.3.2023, passed by the learned Additional Sessions Judge-II,
Shimla, District Shimla, Himachal Pradesh, in Criminal Appeal No.28-T/10
of 2022 (Registration No. 196/2022), affirming the judgment of conviction
and order of sentence dated 10.8.2022, passed by the learned Additional
Chief Judicial Magistrate Theog, District Shimla, Himachal Pradesh in
Criminal Case No. 114/3 of 2016, whereby the learned trial Court while
holding the petitioner-accused guilty of having committed offence
punishable under Section 138 of the Negotiable Instruments Act (in short
the “Act”), convicted and sentenced him to undergo simple imprisonment
for a period of one year and pay compensation to the tune of Rs. 3,50,000
to the complainant.
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2. Precisely, the facts of the case, as emerge from the record are
that respondent/complainant lodged complaint under Section 138 of the
Act before the competent court of law, alleging therein that accused
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purchased apple crop from the complainant for a consideration of Rs.
1,75,600/- and with a view to discharge his liability issued two cheques
bearing No.804221 and 804225, dated 11.10.2015, amounting to
Rs.98,400/- and Rs. 77,200/- respectively, in favour of the complainant,
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however both the cheques on their presentation to the bank concerned
were dishonoured with an endorsement “insufficient funds” vide memos
dated 29.12.2015.
rt Immediately, after receipt of aforesaid memos,
complainant served statutory/demand notice dated 13.1.2016 upon the
accused, thereby calling upon him to make the payment good within
stipulated time, but in vain, as such, complainant had no option but to
initiate proceedings under Section 138 of the Act in the competent court of
law.
3. Learned trial Court on the basis of material adduced on record
by the respective parties, vide judgment/order dated 10.8.2022, held the
petitioner-accused guilty of having committed offence punishable under
Section 138 of the Act and accordingly, convicted and sentenced him as per
the description given herein above.
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4. Being aggrieved and dissatisfied with the aforesaid judgment of
conviction recorded by the court below, petitioner-accused preferred an
appeal before the learned first appellate Court, but the same was dismissed
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vide judgment dated 21.3.2023. In the aforesaid background, accused has
approached this Court in the instant proceedings, praying therein to set-
aside the judgment of conviction and order of sentence recorded by the
court below.
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5. Vide order dated 26.9.2025, this Court suspended the
substantive sentence imposed by the court below, subject to petitioner’s
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depositing 30% of the compensation amount and furnishing personal
bonds in the sum of Rs.50,000/- with one surety in the like amount to the
satisfaction of the trial Court, within four weeks, but fact remains that
afore order was never complied with. Case file reveals that many
opportunities came to be afforded to the petitioner-accused to do the
needful, but in vain. In the afore background, this Court has no option but
to decide the petition on merit.
6. Having carefully perused grounds taken in the appeal vis-Ã -vis
reasoning assigned by the learned Sessions Judge, thereby upholding the
judgment of conviction and order of sentence passed by the learned trial
Court, this Court is not persuaded to agree with learned counsel appearing
for the petitioner that courts below have failed to appreciate the evidence in
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its right perspective, rather this Court finds that both the courts below
have dealt with each and every aspect of the matter very meticulously and
there is no scope of interference.
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7. In the case at hand, at no point of time, petitioner-accused
denied factum with regard to issuance of cheque as well as signature
thereupon, rather he attempted to carve out a case that cheque in question
was issued as security and same was misused by the complainant,
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however, such defence never came to be probablised by leading cogent and
convincing evidence. Once factum with regard to issuance of cheque as
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well as signature thereupon never came to be disputed, no illegality can be
said to have been committed by the courts below while invoking Sections
118 and 139 of the Negotiable Instruments Act, which clearly provide that
there shall be presumption available in favour of the holder of the cheque
that same was issued in discharge of the lawful liability. No doubt,
aforesaid presumption is rebuttable, but for that purpose, accused is/was
under obligation to raise probable defence. Probable defence could be
raised by the accused by referring to the documents as well as evidence
adduced on record by the complainant or by leading some cogent and
convincing evidence. However, in the case at hand, accused, despite
sufficient opportunity, failed to raise probable defence.
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8. 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
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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 accused/drawer of the cheque in
question neither raises a probable defence nor able to contest existence of a
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legally enforceable debt or liability, statutory presumption under Section
139 of the Negotiable Instruments Act, regarding commission of the offence
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comes into play. It would be profitable to reproduce relevant paras No.23 to
25 of the judgment herein:
“23. Further, a three judge Bench of this Court in the matter of
Rangappa vs. Sri Mohan [3] held that Section 139 is an example of areverse 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 strongcriminal remedy in relation to the dishonour 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 madepunishable by Section 138can be better described as a regulatory
offence since the bouncing of a cheque is largely in the nature of a
civil wrong whose 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::: Downloaded on – 08/05/2026 14:50:31 :::CIS
6reverse onus clauses and the defendant accused cannot be expected
to discharge an unduly high standard 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 for.
doing 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 toof
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
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probable defence nor able to contest existence of a legally enforceable
debt or liability, obviously statutory presumption under Section139 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 toavail the opportunity to arrange the payment of the amount covered
by the 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 statute does not pay theamount, 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::: Downloaded on – 08/05/2026 14:50:31 :::CIS
7that 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 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 heavy.”
9. In the case at hand, complainant while examining himself as
CW1 tendered his evidence affidavit Ext.CW1/E, reiterating therein
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contents of the complaint. He also proved cheques Ext.CW1/A & B, memos
Ext.CW1/C & D, notice Ext.CW1/F, postal receipt Ext.CW1/G. If the
cross-examination conducted upon afore witness is perused in its entirety,
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it cannot be said that accused was able to extract anything contrary to
what this witness stated in examination-in-chief. He also denied that
cheques in question were blank and he himself filled its contents.
10. With a view to prove that cheques were issued as security,
accused examined himself as DW1 and testified on oath that cheques
Ext.CW1/A & B were security cheques, which complainant was supposed
to return after receiving the consideration amount, however, aforesaid
defence of him never came to be probablised by leading cogent and
convincing evidence. Though accused attempted to prove that amount, in
lieu of which cheques were issued, was returned, but neither he was able to
place on record any receipt qua the same nor examined a person before
whom such amount was repaid.
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11. Though in his statement recorded under Section 313 CrPC,
accused denied the case of the complainant in toto, but while putting
suggestion with regard to security cheque, he virtually admitted the factum
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of his having issued cheque as well as signature thereupon. 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
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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
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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 ofpayment. 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 borroweragrees 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 noother 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.
12. Needless to say, expression “Security Cheque” is not a
statutorily defined expression in the Negotiable Instruments Act, rather
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same is to be inferred from the pleadings as well as evidence, if 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
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“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.
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13. Moreover, this Court has a very limited jurisdiction under
Section 397 of the Cr.PC, to re-appreciate the evidence, especially, in view
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of the concurrent findings of fact and law recorded by the courts below. In
this regard, reliance is placed upon the judgment 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
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 correctingmiscarriage 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 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::: Downloaded on – 08/05/2026 14:50:31 :::CIS
10in appeal, unless any glaring feature is brought to the notice of the
High Court which would otherwise tantamount to gross miscarriage
of justice.”
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14. 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.
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15. 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
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justice or misuse of judicial mechanism or procedure, sentence or order is
not correct, it is salutary duty of the High Court to prevent the abuse of
the process or miscarriage of justice or to correct irregularities/
incorrectness committed by inferior criminal court in its 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 well reasoned judgments passed by the courts
below.
16. Consequently, in view of the discussion made herein 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
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below, which otherwise, appear to be based upon proper appreciation of
evidence available on record and as such, same are upheld.
17. Accordingly, the present criminal revision petition is dismissed
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being devoid of any merit. The petitioner is directed to surrender himself
before the learned trial Court within fifteen days to serve the sentence as
awarded by the learned trial Court, if not already served. Interim direction,
if any, stands vacated. Learned court below is also directed to release the
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amount, if any, deposited before it by the accused, on filing appropriate
application by the complainant within one week. Pending applications, if
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any, also stand disposed of.
May 7, 2026 (Sandeep Sharma),
(manjit) Judge
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