Presumption under Sections 118/139 NI Act not rebutted by unsubstantiated security cheque claim; such cheques enforceable under Section 138 on dishonour for insufficient funds if liability undischarged.

JUDGMENT :

Sandeep Sharma, J.

Instant criminal revision petition filed under Section 397 of the Cr.P.C., lays challenge to judgment dated 29.02.2024, passed by the learned Additional Sessions Judge, Rohru, Himachal Pradesh, in Criminal Appeal No.112-R/10 of 2023, titled Gyaru Ram Vs. Prem Singh, affirming judgment of conviction and order of sentence dated 26.07.2023, passed by the learned Additional Chief Judicial Magistrate, Court No.1, Rohru, District Shimla, Himachal Pradesh, in criminal case No.2-3 of 2020, whereby the learned trial Court while holding the petitioner-accused (hereinafter, “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 ten months and pay compensation to the tune of Rs.4,70,000/- to the respondent-complainant.

2. Precisely, the facts of the case, as emerge from the record are that respondent-complainant (hereinafter, ‘complainant’) instituted a complaint under Section 138 of the Act, in the competent Court of law, alleging therein that he is running his business in the name and style of Chauhan Fruit Center, Shop No.31-A, New Subji Mandi, Rohru, Shimla, H.P. and he deals in sale and purchase of apples. He alleged that on 10.09.2019, accused purchased apple boxes from the complainant vide bill No.678, dated 10.09.2019 and with a view to discharge his lawful liability, accused issued Cheque No.284651, dated 15.09.2019, in the sum of Rs.3,80,393/-, drawn at H.P. State Cooperative Bank, Branch Batargalu. However, on presentation of aforesaid Cheque to the Bank concerned, the same was dishonoured with the remarks “Funds Insufficient”. After receipt of aforesaid return memo, complainant served accused with a legal notice calling upon him to make the payment good well within stipulated time. However, since petitioner-accused failed to make the payment good within the time stipulated in the legal notice, respondent/complainant was compelled to initiate proceedings under of the Act in the Court of learned Additional Chief Judicial Magistrate, Court No.1, Rohru, District Shimla, Himachal Pradesh.

3. Learned trial Court on the basis of material adduced on record by the respective parties, vide judgment/order dated 26.07.2023, held the petitioner-accused guilty of having committed offence under Section 138 of the Act and accordingly, convicted and sentenced him, as per the description given hereinabove.

4. Though, at the first instance, accused preferred an appeal in the Court of learned Additional Sessions Judge, Rohru, Himachal Pradesh, however, same was dismissed vide judgment dated 29.02.2024. In the aforesaid background, petitioner-accused has approached this Court by way of instant proceedings, seeking therein his acquittal after setting aside the judgments of conviction recorded by the Courts below.

5. Vide order dated 20.04.2024, Co-ordinate Bench of this Court stayed the substantive sentence imposed by the learned Court below, subject to petitioner/accused depositing 30% of the compensation amount and furnishing personal bond in the sum of Rs.25,000/-, however, fact remains that despite repeated opportunities, aforesaid order was never complied with.

6. Today during proceeding