A cheque issued as security can be subjected to Section 138 liabilities; presumption under Section 139 requires the accused to establish a probable defence for avoidance of conviction.

JUDGMENT :

SANDEEP SHARMA, J.

Cr MP N. 1096 of 2026

1. For the reasons stated in the application for early hearing, same is allowed. The application is disposed of.

Cr. R No.768 of 2024

2. Instant criminal revision petition, lays challenge to judgment dated 20.8.2024, passed by the learned Sessions Judge, Shimla, District Shimla, Himachal Pradesh in Criminal Appeal No.51-S/10 of 2024, affirming the judgment of conviction and order of sentence dated 30.4.2024, in Criminal Case No. 900436 of 2015 (CNR No.HPSH110010452015), passed by the learned Judicial Magistrate First Class, Court No-3, Shimla, District Shimla, Himachal Pradesh, 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. Learned trial Court further ordered that in default of payment of fine/compensation amount, he shall undergo simple imprisonment for one month.

3. 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, stating therein that accused with a view to discharge his liability issued cheque (Ext.CW2/A) bearing No.049365 dated 20.3.2015 amounting to Rs. 2,00,000/- in favour of the complainant, however fact remains that aforesaid cheque on its presentation to the bank concerned, was dishonoured on account of “insufficient funds”. Since accused failed to make the payment good within the stipulated period despite having received legal notice issued to him, complainant had no option but to initiate proceedings under of the Act in the competent court of law.

4. Learned trial Court on the basis of material adduced on record by the respective parties, vide judgment/order dated 30.4.2024, 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.

5. 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 vide judgment dated 20.8.2024. 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.

6. Vide order dated 25/11/2025, this Court suspended the substantive sentence imposed by the court below, subject to depositing 30% of the compensation amount and furnishing personal bond in the sum of Rs.30,000/- with the trial Court within six weeks. Though aforesaid order was duly complied with, but thereafter matter was repeatedly adjourned on the request of learned counsel for the petitioner enabling him to deposit the remaining amount, however fact remains that till date, no amount has been deposited and as such, this Court has no option but to decide the petition on merit.

7. Having heard learned counsel for the parties and perused material available on record vis-à-vis reasoning assigned in the judgment impugned in the instant proceedings, this Court is not persuaded to agree with learned counsel appearing for the petitioner that courts below have failed to appreciate the evidence in its right perspective, rather this Court finds t