IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 5 of 2012.

Reserved on: 04.08.2025.

Date of Decision: 11.08.2025.

Parvesh Kumar ...Appellant Versus o Joginder Pal Sood ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting?¹ Yes For the ApCpellant : Mr. Sanjeev K. Suri, Advocate.

For the Respondent : Mr. Anuj Gupta, Advocate.

Rakesh Kainthla, Judge The present appeal is directed against the judgment dated

21.07.2011, passed by learned Chief Judicial Magistrate, Sirmour District at Nahan, H.P. (learned Trial Court), vide which respondent (accused before learned Trial Court) was acquitted of the commission of an offence punishable under Section 138 of Negotiable Instruments Act (in short “NI Act”). (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

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

2. Briefly stated, the facts giving rise to the present appeal 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 NI Act. It was asserted that the accused approached the complainant to provide him a loan of ₹2,00,000/-, which the complainant had advanced. The accused issued a cheque of ₹2,00,000/- drawn on Punjab National Banku, Bahadurpur Chk, Hoshiarpur, Punjab, to discharge his leogal liability. The complainant presented the cheque to Chis bank for its realisation. The complainant’s bank sent the cheque to the bank of the accused; however, the bank of the accused dishonoured the cheque with the endorsement “funds insufÏcient”. The complainant served a notice upon the Haccused, asking him to repay the amount within 15 days from the date of receipt of the notice. The notice was duly served upon the accused, but the accused failed to repay the money. Hence, the complaint was filed before the learned Trial Court to take action as per law.

3. The learned Trial Court found sufÏcient reasons to summon the accused. When the accused appeared before the learned Trial Court, 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 DineHsh Bahadur (CW1)

and himself (CW2) to prove his case.

5. The accused, in his stateoment recorded under Section 313 of Cr.P.C., asserted that he had not issued any cheque in favour of the complainant.r He had not received any notice, and a false endorsement was made on the acknowledgement. The complainant is an agent of Hans Finance Company. He had not taken any money from the complainant. A false complaint was made against him at the instance of Hans Raj Hans, the owner of Hans Finance Company. The statements of Parvinder Pal Singh (DW1), HC Tarsem Singh (DW2) and Hitender Singh Verma (DW3) were recorded in defence.

6. Learned Trial Court held that the complainant failed to prove that he had advanced any money to the accused. The statement of Hitender Singh Verma (DW3) showed that the complainant was under a liability to repay the amount to LIC Housing Finance, and it was highly unlikely that he would have advanced any money to the accused. The material on record was sufÏcient to rebut the presumption attached to the cheque; therefore, the accused was acquitted of the commission of an offence punishable under Section 138 of the NI Act.

7. Being aggrieved by the judgment passed by the learned Trial Court, the complainant has filed the present appeal, asserting that the complaint is based on conjectures and surmises. The issuance of the cheque was duly proved, and the evidence of the accused was insufÏcient to rebut the presumption attached to the cheque. Learned Trial Court shifted the burden to prove the existence of consideration to the complai nant, whereas the accused was required to rebut the presumption. Therefore,