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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RAKESH KAINTHLA, J.
Inderjeet - Petitioner
Versus
Kishan Chand - Respondent
Cr. Revision No. 556 of 2023
Decided On : 06-03-2026
Key Points: - The revisional court's narrow scope to correct patent defects, jurisdictional errors, or gross miscarriage of justice; not to reappreciate evidence absent perversity. (!) (!) - Presumptions under Sections 118(a) and 139 NI Act arise when there is implicit admission of cheque issuance and/or signature; burden on accused to rebut with evidence, not mere denial. (!) (!) (!) (!) - Once a cheque is admitted and presented for dishonour, there is a rebuttable presumption of debt/liability; the accused must lead evidence to rebut; complainant need not prove consideration if presumption applies. (!) (!) (!) - Service of notice by post is deemed served if endorsed as refused; cause of action accrues on deemed service; complaint timing must align with 15-day window post-service. (!) (!) (!) (!) - The punishment under Section 138 (six months’ imprisonment) upheld as deterrent; compensation up to twice the cheque amount with interest is justifiable in appropriate cases. (!) (!) (!) (!) - Courts should not substitute concurrent factual findings in revision unless perverse or grossly erroneous. (!) (!)
| Table of Content |
|---|
| 1. cheque issued for loan repayment, dishonoured; signature denied. (Para 2 , 3 , 4 , 5) |
| 2. lower courts applied unrebutted s.138 presumption. (Para 6 , 7) |
| 3. prematurity plea rejected as not raised earlier. (Para 8 , 9 , 10 , 11) |
| 4. revisional jurisdiction limited to patent errors. (Para 12 , 13 , 14 , 15 , 16 , 17) |
| 5. s.138 offence requires five sequential ingredients. (Para 18) |
| 6. loan proved by bank withdrawal statement. (Para 19) |
| 7. cross-suggestion admits cheque issuance. (Para 21 , 22) |
| 8. ss.118/139 presumptions unrebutted by accused. (Para 23 , 24 , 25 , 26 , 34) |
| 9. no receipt/itr needed due to presumption. (Para 27 , 28 , 29 , 30 , 31 , 32 , 33) |
| 10. bank memo presumes insufficient funds dishonour. (Para 35 , 36) |
| 11. refusal endorsement deems notice served. (Para 37 , 38 , 39 , 40) |
| 12. complaint timely; all s.138 ingredients satisfied. (Para 41 , 42 , 43) |
| 13. sentence adequate; revision dismissed. (Para 44 , 45 , 46 , 47 , 48 , 49) |
JUDGMENT :
RAKESH KAINTHLA, J.
The present revision is directed against the judgment dated 03.10.2023, passed by learned Sessions Judge, Kullu, District Kullu (learned Appellate Court) vide which the judgment of conviction dated 07 12.2022 and order of sentence dated 25.03.2023
passed by learned Chief Judicial Magistrate, L&S at 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 revision are that the complainant filed a complaint before the learned Trial Court against the accused for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (NI Act). It was asserted that the accused and the complainant were known to each other. The accused borrowed Rs. 9,00,000/- from the complainant in July, 2011. He agreed to repay the amount in October, 2012. The complainant demanded the money, and the accused issued a cheque of Rs. 9,00,000/- drawn on Union Bank of India, Bhuntar, in the complainant’s favour. The complainant presented the cheque before the bank for realization but it was dishonoured with an endorsement ‘funds insufficient’. The complainant issued a notice to the accused asking him to repay the money within fifteen days of its receipt, but the accused refused to receive it. Hence, a complaint was filed before the learned Trial Court against the accused for taking action as per the law.
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 NI Act, to which he pleaded not guilty and claimed to be tried.
4. The complainant examined himself (CW-1) and Roshan Lal (CW2) to prove his complaint.
5. The accused, in his statement recorded under Section 313 of Cr.P.C., admitted that the cheque book belonged to him and that he had issued a cheque. He stated that the cheque was not signed by him and he did not know how the complainant came into possession of the cheque book. He examined Lal Chand (DW1) to prove his defence.
6. Learned Trial Court held that it was suggested to the complainant in his cross-examination that the cheque was handed over to Mr P.D. Bhatia, the Manager of the bank, which shows that the accused had admitted the issuance of the cheque. This suggestion was not proven. The accused did not claim in his statement under Section 313 Cr.P.C. that the cheque was issued to Mr P.D. Bhatia. A presumption arose that the cheque was issued in discharge of the debt/legal liability for consideration. The burden shifted upon the accused to rebut the presumption. The accused failed to produce any evidence to rebut the presumption. The cheque was dishonoured with an endorsement ‘insufficient funds’. The accused refused to accept the notice, which is deemed service. All the ingredients of the commission of an offence punishable under Section
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