IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 32 of 2014 Reserved on: 28.08.2025 Date of Decision: 09.09.2025 Sanjeev Sood ... Appellant Versus Raj Kishore Sharma ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting?¹ No For the Appella nt : Mr. Lakshay Thakur, Advocate.

For the Respondent : Mr. Prashant Pandey, Advocate.

Rakesh Kainthla, Judge h The appellant has filed the present appeal against the gjudgment dated 30.11.2013 passed by learned Special Judicial iMagistrate (constituted under the NI Act), Shimla, District Shimla, H.P. (learned Trial Court) vide which the complaint filed by the appellant (complainant 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.)

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 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 advanced an amount of ₹2,50,000/- to the accused per his request. The accused issued a cheque of ₹2,50,000/-drawn on State Bank of India, the Mall, Shimla. H.P. to discharge his liability. Thre complainant presented the cheque to the bank, but it was dishonoured on 29.06.2012 with an endorsement ‘insufficient funds’. The complainant issued a legal notice asking the accused to repay an amount within 15 days, which was duly served upon the accused, but he failed to repay the amount. Therefore, the complaint was filed before the learned Trial Court for taking action as per 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 case.

5. The accused, in his statement recorded under Section 313 of Cr.P.C., stated that he had taken a loan of ₹50,000/- and issued two blank cheques. He had defposited ₹30,000/- in the complainant’s bank account. He also paid an amount of ₹20,000/- to the accused in cash. No notice was received by him. The complainant misused the blank cheque to extract money from the accused. A receipt of deposit of ₹30,000/- was tendered in evidence by his counsel.

6. Learned Trial Court held that the accused admitted the ihssuance of the cheque. Therefore, a presumption under Sections 118(a) and 139 of the NI Act arose that the cheque was issued for consideration in discharge of the liability. The burden would shift upon the accused to rebut the presumption. The plea taken by the accused that he had only borrowed a sum of ₹50,000/-, which was repaid by him, was not probable. The complainant admitted in his cross-examinaton that his monthly income was ₹20,000/-, which showed that he had no financial capacity to lend ₹2,50,000/- to the accused. The absence of any document would also disprove the complainant’s version regarding the advancement of the loan.

Therefore, the complaint was dismissed.

7. Being aggrieved by the judgment passed by the learned Trial Court, the complainant has filed the present appeal asserting that the learned Trial Court erred ifn acquitting the accused. Learned Trial Court erred in holding that the complainant was required to prove the advancement of the loan. There is no such requirement because of the presumption under Section 118(a) and 139 of the NI Act. Therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside.

8h. I have heard Mr. Lakshay Thakur, learned counsel for the appellant and Mr. Prashant Pandey, learned counsel for the respondent.

9. Mr. Lakshay Thakur, le