IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP(M) No. 2506 of 2025.

Reserved on: 21.11.2025.

Date of Decision: 26.11.2025.

The Thore Co-operative Agriculture Service Society Ltd.

...Applicant/ appellant Versus Milap Chand r ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting?¹ No For the applicant/ : Mr. Surender K Sharma, Advocate.

appellant Rakesh Kainthla, Judge i The applicant/appellant has filed the present application for seeking leave to appeal against the judgment dated 14.07.2025 passed by learned Additional Chief Judicial Magistrate, Dehra, District Kangra, HP (learned Trial Court). (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 applicant/complainant filed a complaint against the accused 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 borrowed money from the complainant and issued a cheque of ₹2,50,000/- drawn on Punjab National Banku, Dada Siba, District Kangra, to return the amount. The comoplainant presented the cheque to the bank, but it was disChonoured with the remark ‘funds insufficient’. The complainant served a notice upon the accused, but he failed to repay the amount. Hence, the complaint was filed before the learned Trial Court for taking action 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 Rajeev Kumar (CW-1), Neelam (CW-2) and Parveen Pathania (CW-3) to prove its complaint.

5. The accused, in his statement recorded under Section 313 of CrPC, admitted that he had taken the loan from the complainant society and agreed to repay it in monthly equal installments. He admitted his signature on the cheque, but denied that he had filled in the contents of the cheque. He did not produce any evidence in his defence.

6. Learned Trial Court held that Praveen Pathania (CW-3) stated in his cross-examination that he had not issued any notice to the accused regarding the dishonour of the cheque. Therefore, the essential ingredient of Section 138 of the NI Act, that a notice was issued demanding the payment of the money, was missing, and the complaint was not maintainable. Hence, the complaint was dismissed.

7. Being aggrieved by the judgment passed by the learned Trial Court, the complainant has filed the present application seeking leave to appeal. It has been asserted that the learned Trial Court erred in dismissing the complaint. The accused had obtained a loan from the complainant society and had issued a cheque of ₹2,50,000/- to discharge his liability. Praveen Pathania (CW-3) had issued the notice in his official capacity. He stated in his cross-examination that he had not issued any notice to the accused under the wrong impression that the notice was not issued by him in his personal capacity. The notice was exhibited without any objection from the accused, and the learnued Trial Court was not justified in holding that the noticeo was not proved. The accused admitted the issuance oCf the cheque, and there was a presumption that the cheque was issued for consideration to discharge the debt/liability. The learned Trial Court ignored the presumption; therefore, it was prayed that the present application be allowed Hand the leave to appeal be granted.

8. Mr. Surender K Sharma, learned counsel for the applicant/ appellant, submitted that Praveen Pathania (CW-3) mistakenly said in his cross-examination that the notice was not issued by him beca