Sanjay Kumar vs Narayan Singh on 14 July, 2026

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    Himachal Pradesh High Court

    Sanjay Kumar vs Narayan Singh on 14 July, 2026

              IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
    
                                               Cr. Revision No. 356 of 2026
                                               Reserved on: 22.06.2026
    
    
    
    
                                                                           .
                                               Date of Decision: 14.07.2026
    
    
    
    
    
        Sanjay Kumar                                                  ....Petitioner
    
    
    
    
    
                                               Versus
    
    
    
    
                                                   of
        Narayan Singh                                                 ....Respondent
    
    
        Coram
                         rt
        Hon'ble Mr Justice Rakesh Kainthla, Judge.
    
        Whether approved for reporting?1 No.
    
    
            For the petitioner                 :     Mr Naveen            K.     Bhardwaj,
                                                     Advocate.
    
            For the Respondent                 :     Nemo.
    
    
    
    
        Rakesh Kainthla, Judge
    

    The present revision is directed against the

    judgment dated 04.06.2026, passed by the learned Additional

    SPONSORED

    Sessions Judge, Kullu, District Kullu, H.P. (learned Appellate

    Court) vide which judgment of conviction dated 19.09.2024

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

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    and order of sentence dated 20.09.2024, passed by learned

    Judicial Magistrate, First Class, Kullu, District Kullu, H.P.

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

    .

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

    learned Trial Court for convenience.)

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

    petition are that the complainant filed a complaint against the

    of
    accused for the commission of an offence punishable under

    Section 138 of the Negotiable Instruments Act (N I Act). It was
    rt
    asserted that the parties were well known to each other. The

    accused required money in October 2016 for the construction

    of his house. He borrowed ₹ 6,00,000/- from the complainant

    and promised to return the money shortly. He issued a cheque

    of ₹6,00,000/- drawn on the State Bank of Patiala, branch

    Patlikuhal, District Kullu, H.P., to return the money. The

    complainant presented the cheque at his bank, but it was

    dishonoured with an endorsement ‘funds insufficient’. The

    complainant issued a legal notice to the accused asking him to

    repay the money within 15 days of its receipt. The legal notice

    was duly served upon the accused, but the accused failed to

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    repay the money. Hence, the complaint was filed to take

    action against the accused.

    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 N I Act, to which he

    pleaded not guilty and claimed to be tried.

    of

    4. The complainant examined himself (CW1) to prove

    his complaint.

    rt

    5. The accused, in his statement recorded under

    Section 313 of the Code of Criminal Procedure (Cr.P.C), denied

    the complainant’s case in its entirety. He claimed that he had

    issued a cheque in favour of Sesh Ram, a relative of the

    complainant. The complainant misused the cheque issued by

    the accused. However, he did not produce any evidence to

    prove his defence.

    6. Learned Trial Court held that the issuance of the

    cheque was not disputed. The plea taken by the accused that

    he had issued a cheque in favour of Sesh Ram was denied by

    the complainant in his cross-examination. The accused did

    not lead any evidence to prove the plea taken by him. Hence,

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    he had failed to rebut the presumption attached to the cheque.

    The cheque was dishonoured with an endorsement of

    insufficient funds. The notice was duly served upon the

    .

    accused, and an acknowledgement was received bearing the

    signatures of the accused. The accused had also admitted in

    his statement recorded under Section 313 of the CrPC that he

    had received the notice. The accused failed to repay the money

    of
    to the complainant despite the receipt of the notice of

    demand. All the ingredients of the commission of an offence
    rt
    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 8 months and pay a compensation of ₹8,50,000/-.

    7. Being aggrieved by the judgment and order passed

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

    was decided by the learned Additional Sessions Judge, Kullu,

    District Kullu, 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

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    consideration to discharge the debt/liability. The plea taken

    by the accused that he had issued the cheque in favour of Sesh

    Ram was not proved by any material on record. The cheque

    .

    was dishonoured with an endorsement ‘insufficient funds’,

    the notice was duly served upon the accused, and the accused

    failed to repay the money despite the receipt of a valid notice

    of demand. There was no infirmity in the judgment and order

    of
    passed by the learned Trial Court. Hence, the appeal was

    dismissed. rt

    8. Being aggrieved by the judgments and order

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

    present revision asserting that the learned Courts below erred

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

    accused that the cheque was issued in favour of Sesh Ram and

    the complainant had misused it was highly probable. The

    complaint was barred by limitation, and the service of notice

    was not proved. Therefore, it was prayed that the present

    revision be allowed and the judgments and order passed by

    the learned Courts below be set aside

    9. Mr Naveen K. Bhardwaj, learned counsel for the

    petitioner/accused, submitted that the learned Courts below

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    erred in appreciating the material on record. The plea taken by

    the accused that the cheque was issued to Sesh Ram and the

    complainant had misused it was highly probable. The notice

    .

    was not served upon the accused, and the findings recorded by

    the learned Courts below to this effect are not correct.

    Therefore, he prayed that the present revision be allowed and

    the judgments and order passed by the learned Courts below

    of
    be set aside.

    10. I have given a considerable thought to the
    rt
    submissions made at the bar and have gone through the

    records. carefully.

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

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

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

    revisional court is not an appellate court and it can only

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

    was observed at page 207-

    “10. Before adverting to the merits of the contentions,
    at the outset, it is apt to mention that there are
    concurrent findings of conviction arrived at by two
    courts after a detailed appreciation of the material and
    evidence brought on record. The High Court in criminal
    revision against conviction is not supposed to exercise
    the jurisdiction like the appellate court, and the scope

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    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 Revisional Court does
    not dwell at length upon the facts and evidence of the

    of
    case to reverse those findings.

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

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

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

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

    the perversity which has crept in such proceedings.

    15. It would be apposite to refer to the judgment of this
    Court in Amit Kapoor v. Ramesh Chander [Amit Kapoor v.
    Ramesh Chander, (2012) 9 SCC 460: (2012) 4 SCC (Civ)

    687: (2013) 1 SCC (Cri) 986], where scope of Section 397
    has been considered and succinctly explained as under:

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

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    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

    of
    discretion is exercised arbitrarily or perversely.
    These are not exhaustive classes, but are merely
    indicative. Each case would have to be
    rt 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 should not lead to injustice ex facie. Where
    the Court is dealing with the question as to
    whether the charge has been framed properly

    and in accordance with law in a given case, it
    may be reluctant to interfere in the exercise of its

    revisional jurisdiction unless the case
    substantially falls within the categories

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

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

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

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

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    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)

    of

    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,
    rt 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.

    Ordinarily, therefore, it would not be appropriate
    for the High Court to reappreciate the evidence
    and come to its conclusion on the same when the

    evidence has already been appreciated by the
    Magistrate as well as the Sessions Judge in

    appeal, unless any glaring feature is brought to
    the notice of the High Court which would
    otherwise amount to a gross miscarriage of

    justice. On scrutinising the impugned judgment
    of the High Court from the aforesaid standpoint,
    we have no hesitation in concluding that the
    High Court exceeded its jurisdiction in
    interfering with the conviction of the respondent
    by reappreciating the oral evidence. …”

    13. Another judgment which has also been referred to
    and relied on by the High Court is the judgment of this
    Court in Sanjaysinh Ramrao Chavan v. Dattatray

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    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

    of
    palpable misreading of records, the Revisional
    Court is not justified in setting aside the order,
    merely because another view is possible. The
    rt 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 on no material or where the
    material facts are wholly ignored or where the

    judicial discretion is exercised arbitrarily or
    capriciously, the courts may not interfere with

    the decision in exercise of their revisional
    jurisdiction.”

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

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

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

    page 205:

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    “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

    of
    question is, therefore, in the negative.”

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

    parameters laid down by the Hon’ble Supreme Court.

    rt

    16. The accused asserted that he had issued a cheque

    in favour of Sesh Ram, which was misused by the

    complainant. Thus, the issues of the cheque and the

    signatures 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
    because 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

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    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

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

    17. A similar view was taken 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

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    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.”

    18. This position was reiterated 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

    of
    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
    rt
    execution of the cheque is admitted, the presumption
    under Section 118 of the NI Act that the cheque in

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

    against the accused. It is pertinent to mention that
    observations to the contrary by a two-Judge Bench in
    Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4

    SCC 54, have been set aside by a three-Judge Bench in
    Rangappa (supra).

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

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    19. Therefore, the Court has to start with the

    presumption that the cheque was issued for consideration to

    discharge the debt/liability.

    .

    20. The complainant admitted in his cross-

    examination that Sesh Ram was his uncle, but he denied that

    Sesh Ram had obtained a blank cheque as security from the

    accused, and the complainant had misused the cheque. The

    of
    learned Court below had rightly held that a denied suggestion

    does not amount to any proof. Therefore, the cross-

    rt
    examination of the complainant does not establish the

    defence taken by the accused.

    21. It was submitted that the complainant had

    admitted the relationship between him and Sesh Ram, which

    establishes the defence taken by the accused. This submission

    cannot be accepted. The relationship between Sesh Ram and

    the complainant cannot lead to an inference that the cheque

    was issued to Sesh Ram and that Sesh Ram had handed over

    the cheque to the complainant.

    22. The accused claimed that he had borrowed money

    from Sesh Ram, but failed to produce any evidence to

    establish this plea. It was suggested to the complainant that

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    the accused had repaid the money to Sesh Ram; however, no

    proof of the payment was filed. The accused was aware of the

    fact that he had handed over a cheque to Sesh Ram, which

    .

    could be used against him. Therefore, being a prudent person,

    he would not have paid the money to Sesh Ram without taking

    the receipt or ensuring the proof of payment by depositing the

    amount in the account of Sesh Ram. No such material was

    of
    produced on record, and the plea taken by the accused that the

    cheque was issued in favour of Sesh Ram, who had handed it
    rt
    over to the complainant, is not acceptable.

    23. The accused did not examine any witness to prove

    the defence taken by him, and relied upon his statement

    recorded under Section 313 of the CrPC to prove the plea that

    the cheque was issued in the name of Sesh Ram. This was not

    sufficient. 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 is not

    sufficient. It was observed at page 700:

    “20. That apart, when the complainant exhibited all
    these documents in support of his complaints and
    recorded the statement of three witnesses in support

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    thereof, the appellant recorded her statement under
    Section 313 of the Code but failed to record evidence to
    disprove or rebut the presumption in support of her
    defence available under Section 139 of the Act. The
    statement of the accused recorded under Section 313 of the

    .

    Code is not substantive evidence of defence, but only an

    opportunity for the accused to explain the incriminating
    circumstances appearing in the prosecution’s case against
    the accused. Therefore, there is no evidence to rebut the

    presumption that the cheques were issued for
    consideration.” (Emphasis supplied)”

    24. Therefore, the statement of the accused recorded

    of
    under Section 313 of Cr.P.C. was not a legally admissible

    statement, and the accused cannot derive any advantage from
    rt
    it.

    25. Therefore, learned Courts below had rightly held

    that the accused had failed to rebut the presumption attached

    to the cheque.

    26. The complainant stated in his cross-examination

    that he had given ₹6,00,000/-to the accused, which he had

    earned by selling the apples. He admitted that he had not

    placed on record any document regarding the sale of apples.

    He also admitted that no writing was executed regarding the

    borrowing of the money. It was submitted that the

    complainant had failed to prove the source of the money or

    the payment of money to the accused. This submission will

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    not help the accused. It was laid down by the Hon’ble Supreme

    Court in Uttam Ram v. Devinder Singh Hudan, (2019) 10 SCC

    287: 2019 SCC OnLine SC 1361, that a presumption under

    .

    Section 139 of the NI Act would obviate the requirement to

    prove the existence of consideration. It was observed:

    “20. 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

    of
    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
    rt
    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.”

    27. 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 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

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    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 appellant had
    categorically stated in his deposition and reiterated in
    the cross-examination that he had withdrawn the

    of
    amount from the bank in Faizabad (Typed Copy of his
    deposition in the paperbook wrongly mentions this as
    ‘Firozabad’). The Court ought not to have summarily
    rejected such a stand, more so when respondent no. 2
    rt
    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

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    plea of defence has to be buttressed by evidence, either
    oral or documentary, which in the present case has not
    been done. Moreover, even if it is presumed that the
    complainant had not proved the source of the money
    given to the petitioners by way of loan by producing

    .

    statement of accounts and/or Income Tax Returns, the

    same ipso facto, would not negate such claim for the
    reason that the cheques having being issued and signed
    by the petitioners has not been denied, and no evidence

    has been led to show that the respondent lacked capacity
    to provide the amount(s) in question. In this regard, we
    may make profitable reference to the decision in Tedhi

    of
    Singh v. Narayan Dass Mahant
    , (2022) 6 SCC 735:
    ’10. The trial court and the first appellate court have
    noted that in the case under Section 138 of the NI Act,
    the complainant need not show in the first instance
    rt
    that he had the capacity. The proceedings under
    Section 138 of the NI Act are not a civil suit. At the time,

    when the complainant gives his evidence, unless a case
    is set up in the reply notice to the statutory notice sent,
    that the complainant did not have the 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, 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

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    that the accused has established a probable
    defence.'(emphasis supplied)'(underlining in
    original; emphasis supplied by us in bold).

    28. 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

    of
    Sections 118 and 139 of the NI Act and are treating the
    proceedings under the NI Act as another civil recovery
    proceedings and are directing the complainant to
    prove the antecedent debt or liability. This Court is of
    rt
    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 bank
    must honour the cheque; otherwise, trust in cheques
    would be irreparably damaged.”

    29. Therefore, the complainant’s version cannot be

    discarded because he has not produced the document

    regarding the sale of the apples or the advancement of the

    loan to the accused.

    30. The complainant stated in his cross-examination

    that he had handed over the money to the accused in the

    denomination of ₹500/-. It was submitted that the payment

    of the money in cash violates Section 269SS of the Income Tax

    Act, and the complaint was not maintainable. This submission

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

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    Singh vs. State of H.P. 2018(1) D.C.R. 45 that contravention of

    Section 269 SS of the Income Tax Act will give rise to a

    penalty, but will not invalidate the transaction. It was

    .

    observed:

    5. The relevant portion of Section 269 SS of the IT Act

    reads thus: –

    “(a) the amount of such loan or deposit or the
    aggregate amount of such loan and deposit’ or

    of

    (b) on the date of taking or accepting such loan or
    deposit, any loan or deposit taken or accepted
    earlier by such person from the depositor is
    rt remaining unpaid (whether repayment has fallen
    due or not), the amount or the aggregate amount
    remaining unpaid; or

    (c) The amount or the aggregate amount referred
    to in clause (a) together with the amount or the
    aggregate amount referred to in clause (b), is
    (twenty) thousand rupees or more. Provided……”

    6. Section 271D provides for a penalty for failure to
    comply with the aforesaid provisions, which reads
    thus:

    “271D. Penalty for failure to comply with the

    provisions of Section 269-SS – (1) If a person
    takes or accepts any loan or deposit in
    contravention of the provisions of Section 269-SS,

    he shall be liable to pay, by way of penalty, a sum
    equal to the amount of the loan or deposit so taken
    or accepted.

    (2) Any penalty impossible under sub-section (1)
    shall be imposed by the Joint Commissioner.”

    7. A collective reading of both the aforesaid Sections
    would go to show that even though contravention of
    Section 269-SS of the IT Act would be visited with a
    strict penalty on the person taking the loan or deposit.

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    However, Section 271D does not in any manner suggest
    or even provide that such a transaction would be null
    and void. The payer of money in cash, in violation of
    Section 269 SS of the IT Act, can always have the
    money recovered.

    .

    8. The object of introducing Section 269 of the IT Act has

    been succinctly set out by the Hon’ble Supreme Court in
    Asstt. Director of Inspection Investigation vs. A.B. Shanthi
    (2002) 6 SCC 259, wherein it was observed as under: –

    “8. The object of introducing Section 269-SS is to
    ensure that a taxpayer is not allowed to give a false
    explanation for his unaccounted money, or if he has

    of
    given some false entries in his accounts, he shall not
    escape by giving false entries in his accounts, or by
    giving a false explanation for the same. During search
    and seizures, unaccounted money is unearthed, and the
    rt
    taxpayer would usually give the explanation that he
    had borrowed or received deposits from his relatives or

    friends, and it is easy for the so-called lender also to
    manipulate his records later to suit the plea of the
    taxpayer. The main objection of Section 269-SS was to
    curb this menace.”

    9. In light of the aforesaid observations, it cannot but
    be said that Section 269-SS only provides for the mode
    of accepting payment or repayment in certain cases to

    counteract evasion of tax. However, Section 269-SS
    does not declare all transactions of loans by cash in

    excess of ₹20,000/- as invalid, illegal or null and void,
    as the main object of introducing the provision was to
    curb and unearth black money.

    31. A similar view was taken by the Hon’ble Supreme

    Court in Sanjabij Tari v. Kishore S. Borcar, 2025 SCC OnLine SC

    2069, wherein it was observed:

    “19. Recently, the Kerala High Court in P.C. Hari v. Shine
    Varghese, 2025 SCC OnLine Ker 5535 has taken the view

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    2026:HHC:28410

    that a debt created by a cash transaction above
    ₹20,000/- (Rupees Twenty Thousand) in violation of
    the provisions of Section 269SS of the Income Tax Act,
    1961 (for short ‘IT Act, 1961‘) is not a ‘legally
    enforceable debt’ unless there is a valid explanation for

    .

    the same, meaning thereby that the presumption under

    Section 139 of the Act will not be attracted in cash
    transactions above ₹ 20,000/- (Rupees Twenty
    Thousand).

    20. However, this Court is of the view that any breach
    of Section 269SS of the IT Act, 1961, is subject to a
    penalty only under Section 271D of the IT Act, 1961.

    of
    Further, neither Section 269SS nor 271D of the IT Act,
    1961
    states that any transaction in breach thereof will
    be illegal, invalid or statutorily void. Therefore, any
    violation of Section 269SS would not render the
    rt
    transaction unenforceable under Section 138 of the NI
    Act or rebut the presumptions under Sections 118 and

    139 of the NI Act because such a person, assuming
    him/her to be the payee/holder in due course, is liable
    to be visited by a penalty only as prescribed.
    Consequently, the view that any transaction above Rs.

    20,000/- (Rupees Twenty Thousand) is illegal and void
    and therefore does not fall within the definition of
    ‘legally enforceable debt’ cannot be countenanced.
    Accordingly, the conclusion of law in P.C. Hari (supra)

    is set aside.”

    32. This position was reiterated in Shine Varghese

    Koipurathu v State of Kerala, Crl. A. No. 5385 of 2025 decided on

    8th December 2025.

    33. In the present case, no evidence was produced to

    rebut the presumption, and the learned Courts below had

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    2026:HHC:28410

    rightly held that the cheque was dishonoured with an

    endorsement ‘insufficient funds.’

    34. The complainant stated that the cheque was

    .

    dishonoured with an endorsement ‘insufficient funds. This

    was duly corroborated by the cheque returning memo

    (Ext.C-2/CW1), which mentioned the reason for dishonour as

    ‘insufficient funds’. It was laid down by the Hon’ble Supreme

    of
    Court in Mandvi Cooperative Bank Ltd. v. Nimesh B. Thakore,

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

    rt
    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 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.”

    35. In the present case, the accused has not produced

    any evidence to rebut the presumption, and the learned Courts

    below had rightly held that the cheque was dishonoured with

    an endorsement ‘funds insufficient’.

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    36. The complainant stated that he had served a notice

    upon the accused. This is duly corroborated by the

    acknowledgement (Ext. C-6/CW-1). Thus, the service of

    .

    notice was duly proved upon the accused.

    37. In any case, 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

    of
    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
    rt
    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 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 27 of the G.C. Act and Section 114 of the
    Evidence Act. In our view, any other interpretation of

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    2026:HHC:28410

    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
    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 has not claimed that any money was

    paid by him to the complainant after the receipt of the notice.

    of
    Therefore, it was duly proved that the accused had failed to

    pay the money despite the receipt of a valid notice of demand.

    39.
    rt
    Thus, it was duly proved on record that the accused

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

    was dishonoured with an endorsement ‘insufficient funds’,

    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 satisfied,

    and the learned Trial Court had rightly convicted the accused

    for the commission of the offence punishable under Section

    138 of the NI Act.

    40. Learned Trial Court sentenced the accused to

    undergo simple imprisonment for eight months and pay a fine

    in the form of compensation of ₹8,50,000/- to the

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

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    2026:HHC:28410

    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

    of
    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
    rt
    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 eight months cannot be said to

    be excessive.

    42. The learned Trial Court awarded the compensation

    of ₹8,50,000/- on the cheque amount of ₹6,00,000/-, which

    means that the amount of ₹2,50,000 was awarded as

    compensation. The cheque was issued on 15.12.2016, and the

    sentence was imposed on 20.09.2024 after the lapse of 93

    months. The complainant lost money that it would have

    gained by lending the money to someone. It had to engage a

    counsel to prosecute the complaint filed by him. Therefore, it

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    2026:HHC:28410

    was entitled to be compensated for its loss. 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 amount

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

    observed at page 291: –

    of

    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
    rt
    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. An amount of ₹6,00,000/- would have earned

    ₹3,72,000/- as interest for 93 months, and the compensation

    of ₹2,50,000/- cannot be said to be excessive, requiring any

    interference from the Court.

    44. No other point was urged.

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

    fails, and it is dismissed.

    46. The present petition stands disposed of, and so are

    .

    the pending applications, if any.

    (Rakesh Kainthla)

    Judge
    14th July, 2026.

    (ravinder)

    of
    rt

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