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2025 Supreme(HP) 1440
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
RAKESH KAINTHLA, J.
Dyal Negi @ Hardyal – Appellant
Versus
Anil Kumar – Respondent
Cr. Revision No. 119 of 2020
Decided On : 31-10-2025
For the Appellant : Paras Dhaulta
For the Respondent: Gunjan Sharma
Premature Section 138 complaint if filed before 15 days from deemed notice service (30 days post-posting sans proof); cross-examination doubting financial capacity rebuts presumption of debt, entitling acquittal in revision on legal errors.
Headnote:(A) Negotiable Instruments Act, 1881 - Section 138 - Cheque dishonour - Where no material on record to determine date of service of demand notice sent by registered post, presumption of service arises after 30 days from date of posting - Accused entitled to 15 days thereafter to pay amount - Complaint filed before expiry of such period is premature, no cognizance can be taken, liable to be dismissed - Plea of prematurity can be raised even first time in revision - Financial capacity of complainant doubted through cross-examination (no proof of cash payments, income sources, tax returns) rebuts presumption under Sections 118(a) and 139 that cheque issued for discharge of debt - Accused entitled to acquittal. (Paras 19-27, 29-36)
(B) Criminal Procedure Code, 1973 - Section 397 - Revisional jurisdiction - Narrow scope - Not appellate jurisdiction - Interference only for patent defect, jurisdictional error, perversity or gross miscarriage of justice - Not to reappreciate evidence or substitute view unless findings perverse, based on no evidence or ignoring material evidence. (Paras 13-17)
Facts of the case:
Accused allegedly borrowed amount for personal needs, issued post-dated cheque which was presented and dishonoured for insufficient funds. Demand notice sent on 19.03.2014, acknowledgment received but undated, no proof of delivery date. Complaint filed on 16.04.2014. Trial court convicted and sentenced to imprisonment and compensation equivalent to cheque amount. Appellate court upheld. Revision challenging prematurity of complaint and lack of proof of legally enforceable debt or complainant’s financial capacity.
Findings of Court:
Revision allowed - Judgments and orders of courts below set aside - Accused acquitted of offence under Section 138.
Issues: Whether complaint premature absent proof of demand notice service date; whether complainant proved financial capacity to advance loan and existence of legally enforceable debt; scope of revisional interference with concurrent findings.
Ratio Decidendi: Absent service proof, notice deemed served 30 days post-posting, rendering complaint filed within subsequent 15 days premature per settled law - No offence complete till then. Cross-examination exposing inconsistencies in financial capacity (unproved cash payments from horticulture, no tax returns despite claimed income) rebuts presumption, shifting burden discharged, conviction unsustainable. Revisional court rectifies legal errors overlooked below.
Result: Revision allowed.
| Table of Content |
|---|
| 1. lower courts upheld conviction under section 138 ni act (Para 1 , 2 , 3 , 4 , 5 , 6 , 7) |
| 2. premature complaint and financial capacity challenged (Para 8 , 9 , 10 , 11) |
| 3. revisional jurisdiction limited to patent errors (Para 12 , 13 , 14 , 15 , 16 , 17) |
| 4. deemed notice service after 30 days; complaint premature (Para 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27) |
| 5. financial capacity unproven; presumption rebutted (Para 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37) |
| 6. revision allowed; accused acquitted (Para 38 , 39 , 40) |
JUDGMENT :
RAKESH KAINTHLA, J.
1. The present revision is directed against the judgment dated 02.09.2019, passed by learned Sessions Judge, Kullu, H.P. (learned Appellate Court), vide which the judgment of conviction dated 12.04.2019 and order of sentence dated 17.4.2019, passed by learned Chief Judicial Magistrate, Kullu, District 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 parties were known to each other. The accused borrowed Rs.8,00,000/- from the complainant for his personal needs. He handed over a post-dated cheque of Rs.8,00,000/- to discharge his liability. The complainant presented the cheque before the bank, but it was dishonoured with an endorsement “funds insufficient”. The complainant sent a notice to the accused. The accused sent a reply to the notice but did not pay the amount. Hence, a complaint was filed 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 (CW1) to prove his complaint.
5. The accused, in his statement recorded under Section 313 Cr.P.C., denied the complainant’s case in its entirety. He stated that a false case was made against him. Narender Kumar was present before the Court on 28.08.2018, but was given up by the learned Counsel for defence, who also closed the defence evidence without examining any witness.
6. Learned Trial Court held that the issuance of the cheque was not disputed, and a presumption would arise that the cheque was issued for consideration in discharge of the debt/liability. The burden would shift upon the accused to rebut the presumption. However, the accused did not produce any evidence to rebut the presumption. The cross-examination of the complainant also did not rebut the presumption. The cheque was dishonoured with an endorsement “funds insufficient”. The legal notice was duly received by the accused, and he failed to repay the amount. Hence, the accused was convicted of the commission of an offence punishable under Section 138 of the NI Act and was sentenced to undergo simple imprisonment for four months and pay a compensation of Rs. 8,00,000/- to the complainant.
7. Being aggrieved by the judgment and order passed by the learned Trial Court, the accused filed an appeal, which was decided by the learned Sessions Judge, Kullu (learned Appellate Court). Learned Appellate Court concurred with the findings recorded by the learned Trial Court that the issuance of the cheque was not disputed, and a presumption would arise that the cheque was issued for consideration to discharge the liability. The cross-examination of the complainant was not sufficient to rebut the presumption. The cheque was dishonoured with an endorsement “funds insufficient”, and the accused had received a notice issued by the complainant. All the ingredie
