Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(HP) 1216

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RAKESH KAINTHLA, J.
Govind Ram - Petitioner
Versus
State Of H.P. And Another - Respondents
Cr. Revision No. 848 of 2024
Decided On : 25-09-2025

Advocates Appeared:
For the Petitioner:Mr. Hemant Thakur, Advocate, vice Mr. T.K. Verma, Advocate.
For the Respondent:Mr. Lokender Kutlehria, Additional, Advocate General, Mr. Lovneesh Singh Thakur, Advocate.

NI Act s.138 complaint premature if filed before 15 days from 30-day deemed service of notice via registered post without proof; computer-generated dishonour memos without seal/signature/65B certificate inadmissible, no s.146 presumption.

Headnote:(A) Negotiable Instruments Act, 1881 - Section 138 - Complaint premature if filed before expiry of 15 days from deemed date of notice service; notice by registered post without acknowledgment or return presumed served after 30 days from posting - Cheque dishonour memos computer-generated without bank seal, signature, official mark or Section 65B(4) Evidence Act certificate inadmissible; no presumption under Section 146 NI Act. (Paras 21-36)

(B) Code of Criminal Procedure, 1973 - Section 397 - Revisional jurisdiction limited to correcting patent defects, jurisdictional errors or perversity; cannot re-appreciate evidence or substitute views absent gross error. (Paras 14-19)

Facts of the case:
Complainant sold vehicle for Rs.3,25,000/-; accused issued three post-dated cheques which were presented and returned unpaid with 'funds insufficient' endorsement. Notice sent by registered post to correct address, not returned undelivered but no acknowledgment received. Complaint filed shortly after posting. Accused admitted issuance but denied liability claiming ownership not transferred and vehicle repossessed.

Findings of Court:
Courts below erred in presuming notice served within 5 days without proof and admitting unsigned unsealed dishonour memos; ingredients of offence not established.

Issues: Whether complaint premature due to improper notice service presumption; whether dishonour proved without valid bank memos; scope of revisional interference.

Ratio Decidendi: Deemed service after 30 days from notice posting applies absent proof; complaint filed before 15-day payment period post-deemed service is premature and liable to dismissal. Unsigned computer-generated memos lacking seal/certificate fail Section 146 presumption, requiring complainant to prove dishonour otherwise. Revisional court interferes only on perversity, here present in ignoring these defects.

Result: Revision allowed; conviction and sentence set aside; accused acquitted.

Table of Content
1. factual background of cheque dishonour case and lower court convictions (Para 1 , 2 , 3 , 4 , 5 , 6 , 7)
2. parties' contentions on evidence and limitation (Para 8 , 9 , 10 , 11 , 12)
3. limited scope of revisional jurisdiction (Para 13 , 14 , 15 , 16 , 17 , 18 , 19)
4. ingredients of section 138 ni act offence (Para 20)
5. premature complaint due to 30-day notice presumption (Para 21 , 22 , 23 , 24 , 25 , 26)
6. inadmissible unsigned unsealed dishonour memos (Para 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35)
7. revision allowed; conviction set aside (Para 36 , 37 , 38 , 39)

JUDGMENT :

Rakesh Kainthla, J.

The present revision is directed against the judgment dated 3.10.2024, passed by learned Sessions Judge, Mandi, H.P. (learned Appellate Court), vide which the judgment of conviction dated 13.5.2024 and order of sentence dated 15.5.2024, passed by learned Judicial Magistrate First Class, Court No.3, Mandi, H.P. (learned Trial Court) were as upheld and the appeal filed by the petitioner (accused before the learned Trial Court) was dismissed. (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 parties were known to each other. The complainant is owner of the vehicle bearing registration No. HP-65-1617. The complainant sold the vehicle to the accused on 1.6.2020 for Rs. 3,25,000/-. He delivered the possession of the vehicle to the accused. The accused issued three post dated cheques of Rs. 1.00 lac, Rs. 1.00 lac and Rs. 1.25 lacs as the sale consideration. The complainant presented the cheques to Punjab National Bank which were dishonoured with an endorsement ‘funds insufficient’. The complainant served a notice upon the accused. This notice was sent to the accused by registered letter acknowledgment due on the correct address. The acknowledgment was not received. The notice was also not returned undelivered. Hence the same is presumed to be served upon the accused within five days. The accused failed to pay the amount within 15 days from the due date of receipt. Hence the complaint was filed against the accused for taking action as per law.

3. The 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 (CW1), Chand Ram (CW2), Pushap Raj Sharma (CW3) and Komal Chand (CW4) to prove his case.

5. The accused, in his statement recorded under Section 313 of Cr.P.C., admitted that the vehicle was purchased by him for Rs. 3,25,000/-. He admitted that he had issued the cheques. He claimed that the complainant had assured to transfer the ownership in his name but the ownership was not transferred and only an affidavit was executed. Subsequently, the complainant took away the car and he had no liability to pay any amount. He examined Rajesh Khana (DW1).

6. Learned Trial Court held that the issuance of the cheques was not disputed. Therefore, a presumption would arise that the cheques were issued in discharge of the liability. They were dishonoured with an endorsement ‘funds insufficient’. Notice was sent on the correct address and was duly served upon the accused. The accused failed to repay the amount. Hence the accused was convicted of the commission of an offence punishable under Section 138 of NI Act and was sentenced to undergo simple imprisonment till rising of the Court, pay a fine of Rs. 3,75,000/- and in default of payment of fine to undergo simple imprisonment for 60 days.

7. Being aggrieved by the judgment and order passed