Presumption under NI Act ss.118,139 rebuttable on preponderance of probabilities by probable defence; accused's unproved allegation of cheque amount misuse fails rebuttal. Revision jurisdiction limited to correcting miscarriage, upholds concurrent findings sans perversity. (32 words)

JUDGMENT :

Sandeep Sharma, J.

Instant Criminal Revision petition filed under Section 438 read with Section 442 of the Bharatiya Nagarik Suraksha Sanhita, lays challenge to judgment dated 15.05.2025 passed by learned Additional Sessions Judge, Sarkaghat, District Mandi, Himachal Pradesh (Camp at Jogindernagar) in Criminal Appeal No.01 of 2024 affirming the judgment of conviction and order of sentence dated 16.12.2023 passed by learned Judicial Magistrate, First Class, Jogindernagar, District Mandi, Himachal Pradesh, in case No.50 of 2019, whereby learned trial Court, while holding petitioner-accused ( for short ‘accused’) guilty of his having committed an offence punishable under Section 138 of the Negotiable Instruments Act(for short ‘Act’), convicted and sentenced him to undergo simple imprisonment for a period of two years and pay compensation to the tune of Rs.6,00,000/- to the respondent-complainant.

2. Precisely, the facts of the case, as emerge from the pleadings as well as other documents adduced on record by the respective parties, are that respondent No.1-complainant (for short ‘complainant’) filed a complaint under Section 138 of the Act in the competent Court of law, alleging therein that in the month of November, 2017 accused came to his house and borrowed sum of Rs. 5, 00,000/- for his hotel business at Bir, Baijnath. He alleged that since accused was well known to him, he advanced aforesaid loan with the understanding that accused shall return the same in the first week of November, 2018. Accused, with a view to discharge his lawful liability, issued cheque bearing No.994625, dated 03.02.2019, amounting to Rs.5, 00,000/-(Ex.CW2/B). However, fact remains that aforesaid cheque on its presentation in the bank concerned i.e HDFC Bank, Branch at Jogindernagar, was returned with the remarks “account closed” & “ Exceeds Arrangement” vide returned memo dated 13.02.2019 (Ex.CW2/C). After receipt of aforesaid return memo, complainant got issued legal notice Ex.CW2/E to the accused, thereby calling upon him to make the 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 of the Act in the competent Court of law, which subsequently, on the basis of evidence adduced on record by the respective parties, held the accused guilty of 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 the aforesaid judgment of conviction and order of sentence recorded by learned trial Court, present petitioner-accused preferred an appeal in the Court of learned Additional Sessions Judge, Sarkaghat, District Mandi, Himachal Pradesh (camp at Jogindernagar), but same also came to be dismissed vide judgment dated 15.05.2025. In the aforesaid background, petitioner-accused has approached this Court in the instant proceedings, praying therein for his acquittal after quashing and setting aside the impugned judgment of conviction and order of sentence recorded by Courts below.

4. Vide order dated 08.07.2025, this Court suspended the substantive sentence imposed by Court below, subject to petitioner- accused 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 learned trial Court within a period of four weeks. However, fact remains that afore