IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 253 of 2014 Reserved on: 13.11.2025 Decided on: 28.11.2025 _________________________________________________________

M/s Himachal Pradesh Horticulture Produce Marketing and processing Corporation ...Appellant Versus Rakesh Awasthi o …Respondent _________________________________________________________

Coram Hon'ble Mr. Justice Sushil Kukreja, Judge

1 Whether approved for reporting?

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For the appellant: Mr. Rahul Ghatania, Advocate.

For the respondent: Mr. Adarsh K. Vashista, Advocate.

Sushil Kukreja, Judge The instant appeal has been preferred by the appellant-

complainant (hereinafter referred to as the complainant) under Section i378 of Criminal Procedure Code (for short “Cr.P.C.”) against judgment dated 17.07.2013, passed by learned Judicial Magistrate 1^st Class, Court No.3, Shimla, District Shimla, H.P., in Criminal Complaint No.1941-3 of 2010/09, whereby the accused (respondent herein) was acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the NI Act”).

2. Briefly stated the facts of the case, as emerge from the record, are that the accused was posted as Junior Accountant in the

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

branch office of the complainant-Corporation at Baij Nath and as per audit para, a sum of Rs.36,91,926/-, including inventory of wine of Rs.1,04,625/- was held recoverable from the accused, tPherefore, a criminal case was registered against him. On 23.12.2008, the accused executed an affidavit admitting his liability to make the payment of Rs.35,87,301/- to the complainant and in order to discharge his part liability, he issued a cheque bearing oNo.695049, dated 31.03.2009, amounting to Rs.13,50,000/- in favou r of the complainant-Corporation. However, on presentation, the said cheque was dishonoured with the remarks ‘funds insufficient’ in the bank account of the accused. Thereafter, a legal notice was issued to him on 19.04.2009, for arranging thCe cheque amount, but he did not make the payment. Subsequently, the complainant filed a complaint under Section 138 of NI Act against the accused before the learned Trial Court.

3. The learned Trial Court, after having found sufficient material against the accused, had put notice of accusation to him, vide order dated 25.05.2009 and on conclusion of trial, the learned Trial Court acquitted the accused for commission of the offence under Section 138 of NI Act, hence, the present appeal by the complainant.

4. Learned counsel for the appellant/complainant contended that the learned Trial Court has failed to appreciate the fact that the complaint was filed by the General Power of Attorney on behalf of the principal. He further contended that the learned Trial Court has wrongly held that the notice sent to the accused for arranging the cheque amount was not proved on record and it has gone in much technicalities. It is submitted that the impugned judgment is based on hypothesis and imaginary grounds, hence, prayer for settiPng-aside of the same and acceptance of the instant appeal has been made.

5. Per contra, learned counsel for the respondent-accused while supporting the judgment of the Trial Court, contended that there was no infirmity in the findings returned boy the learned trial Court as the same were borne out from the record of the case, therefore, the present appeal deserves to be dismissed.

6. I have heard learned counsel for the appellant/ complainant as well as learned counsel for the respondent/ accused and also gone through the reCcord carefully.

7. It is well settled by the Hon’ble Apex Court in a catena of decisions that an Appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, Appellate Court must bear in mind that in case of acquittal, there is double presumption in favour of the accused. F