Neutral Citation No. ( 2025:HHC:18361 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 56 of 2024 Reserved on: 30.05.2025 Date of Decision: 17.06.2025 Mahesh Gautam ...Petitioner Versus Rajeev Kohli ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting?¹ Yes For the Petitioner : Mr. N.K. Thakur, Sr. Advocate with Mr. Divya Raj Singh, Advocate.

Forg the Respondent : Mr. Surinder K. Saklani, Advocate.

Rakesh Kainthla, Judge The petitioner (accused before learned Trial Court) has filed the present petition against the judgment dated 28.12.2023 passed by learned Additional Sessions Judge-II, Una, District Una, H.P (learned Appellate Court), vide which the appeal filed by the petitioner was dismissed and the judgment and order dated 30.08.2022 passed by learned Additional Chief Judicial Magistrate

1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

Court No.1, Una, District Una, (learned Trial Court) convicting and sentencing the petitioner 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 petition 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 (in short ‘NI Act’). It was asserted that the complainant is the proprietor of M/s Kohli Traders and deals in cold drinks and other items. The accused No .1 is the proprietor of M/s MVASKT India. He purchased various items of cold drinks from the complainant vide Bill No.51 dated 25.05.2015 for a sum of ₹2,90,440/-. The accused paid ₹27,224/- in cash and issued a cheque of ₹2,63,216/- to discharge the remaining liability. The complainant presented the cheque before his Bank-Bank of Baroda, Una Branch. The cheque was forwarded to the Bank of the accused but it was dishonoured with the remarks ‘funds insufÏcient’. The complainant issued a legal notice dated 25.08.2015 to the accused requesting him to pay the amount of ₹2,63,216/- within 15 days from the date of the receipt of the legal notice. The accused refused to receive the notice and the same is deemed to be served. The accused failed to pay the amount despite the deemed receipt of the notice; hence, the complaint was filed before the learned Trial Court to take action against the accused as per the law.

3. The learned Trial Court found sufÏcient 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 the accused pleaded not guilty and claimed to be tried.

4. The complainant examined himself (CW1), Arun Guleri (CW2), and Dipti (CW3) to prove his case.

5. g The accused in his statement recorded under Section i313 of Cr.P.C. admitted that the complainant is the proprietor of M/s Kohli Traders and that he is a proprietor of M/s MVASKT. He denied the rest of the prosecution case. He stated that the cheque was given in lieu of the transfer of the stock of the Company in which the accused was an employee and the Company to which the stock was transferred gave another cheque. The complainant undertook to return the blank cheque of the accused, however, he failed to do so. A legal notice was also served upon the complainant. He examined Lovekesh Patial (DW1) and himself (DW2).

6. Learned Trial Court held that it was duHly proved that the cheque was issued by the accused. There is a presumption under the NI Act that the cheque was issued for valid consideration in the discharge of the legal liability. The plea taken by the accused, that the cheque was issued as a security for the transfer of some articles and the payment was made by the transferee, was not proved. The cheque was dishonoured with an endorsement of ‘insufÏcient funds’ and the accused had refused to receive the notice. Th