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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Rakesh Kainthla, J.
M/s Mam Raj Ramesh Chand Aggarwal - Petitioner
Versus
State of Himachal Pradesh and others - Respondents
Cr. Appeal No. 12 of 2010
Decided On : 14-11-2025
| Table of Content |
|---|
| 1. cheque issued, dishonoured; trial proceedings summary (Para 2 , 3 , 4 , 5) |
| 2. trial convicted; appellate acquitted on liability grounds (Para 6 , 7) |
| 3. parties contend on presumption rebuttal and firm liability (Para 8 , 10 , 11 , 12) |
| 4. interfere with acquittal only if perverse or ignores evidence (Para 13 , 14 , 15) |
| 5. presumption under sections 118/139 ni act rebuttable by probabilities (Para 16 , 17 , 18) |
| 6. notice admits cheque consideration and receipt (Para 19 , 20) |
| 7. accused defense inconsistent; no repayment proof (Para 21 , 22) |
| 8. signatory partner personally liable under section 141 (Para 23 , 24 , 25 , 26 , 27) |
| 9. witnesses irrelevant; partnership admitted (Para 28 , 29) |
| 10. cash violation doesn't invalidate debt (Para 30) |
| 11. cited cases inapplicable; presumption not rebutted (Para 31 , 32 , 33 , 34 , 35 , 36) |
| 12. appeal allowed; trial judgment restored (Para 37 , 38 , 39 , 40) |
JUDGMENT :
Rakesh Kainthla, J.
The present appeal is directed against the judgment dated 03.03.2008 passed by learned Sessions Judge, Shimla, District Shimla, H.P. (learned Appellate Court), vide which the appeal filed by the respondents No. 2 and 3 (accused before learned Trial Court) was allowed and the judgment of conviction dated 19.11.2007 and order of sentence dated 21.11.2007 passed by learned Judicial Magistrate First Class, Court No.2 (learned Trial Court) were set aside. (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 appeal are that the complainant filed a complaint before the learned Trial Court for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as ‘NI’ Act). It was asserted that the accused No. 1 issued a cheque bearing No.725301 dated 30.11.1999 in favour of the complainant for consideration received from him on his behalf and on behalf of accused No.2 for a sum of Rs.50,000/- drawn on Indian Overseas Bank, Shimla. The complainant presented the cheque to his bank, but it was returned with an endorsement ‘insufficient funds’. The complainant served a legal notice upon the accused demanding the payment of money within 15 days of the receipt of the notice. The notice was served upon the accused on 07.03.2000. However, he failed to repay the amount. Hence, a complaint was filed before the learned Trial Court for taking action against the accused 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), Ominder Mahajan (CW2) and Daya Nand (CW3) to prove his complaint.
5. The accused, in his statement recorded under Section 313 of the Cr.PC denied the complainant’s case in its entirety. He stated that the cheque was handed over to the complainant as security. He and the complainant had a joint business in finance. The accused examined himself (DW1), Shiv Kumar (DW2), Nanak Ram Jandan (DW3), Mast Ram (DW4), and Sachidanand (DW5) to prove his innocence.
6. Learned Trial Court held that the accused admitted the issuance of the cheque. He stated that he was running a chit fund scheme with the complainant and had issued the cheques as security. He also examined the witnesses to prove this fact. However, he had sent a notice (Ext.A-1) through his counsel admitting the receipt of various amounts. He asserted that he had repaid the money to the complainant. However, there was no proof of this fact. The evidence of the accused was not sufficient to rebut the presumption contained in the Negotiable Instruments Act; therefore, the accused was convicted of the commission of an offence punishable under Section 138 of the NI Act and was sentenced to undergo rigorous imprisonm
Admission of cheque execution raises presumption under Sections 118(a) and 139 NI Act of legally enforceable debt; rebuttable by preponderance of probabilities. Firm signatory liable under Section 14....
The presumption under Section 139 of the NI Act mandates that a cheque is presumed to be issued for discharge of a debt unless the accused proves otherwise.
Presumption under Section 139 NI Act shifts burden to accused to rebut by probable defence; trial court erred in requiring complainant to prove debt, rendering acquittal perverse in appeal.
Presumption under Section 139 of the Negotiable Instruments Act requires the accused to present credible evidence to rebut the holder's claim of legal liability regarding the cheque issued.
The presumption of liability under the NI Act is rebuttable, and the burden of proof lies on the complainant to establish the existence of a legally enforceable debt.
Admission of cheque execution triggers Sections 118/139 NI Act presumptions of debt; burden on accused to rebut by evidence; trial acquittal ignoring presumption and shifting onus to complainant is p....
Presumption under Section 139 NI Act that cheque is for debt discharge holds unless rebutted by preponderance of probabilities; trial acquittal reversed for perversely ignoring defence witness confir....
The presumption in favor of the complainant under the N.I. Act is rebuttable, and the standard of proof required to prove a defense in a criminal case is preponderance of probabilities.
The main legal point established in the judgment is the significance of the accused raising a probable defense to rebut the presumption under Section 139 of the N.I. Act, and the requirement for the ....
Dishonour of cheque – Whereas prosecution must prove guilt of an accused beyond all reasonable doubt, standard of proof so as to prove a defence on part of accused is preponderance of probabilities.
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