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2026 Supreme(Online)(HP) 3209
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Rakesh Kainthla, J
Hradaya Kumar Tiwari – Appellant
Versus
Harish Chander Sharma – Respondent
Cr. Revision No. 210 of 2026
Important Points
Subject
Criminal Law - Negotiable Instruments
Act Referred
Criminal Procedure Code: S.313, S.397, S.401, S.357(3), S.421
Evidence Act: S.65B, S.114
Bankers Book of Evidence Act: S.4
Indian Penal Code: S.64
Limitation Act: S.27
Income Tax Act: S.269SS, S.271D
Headnote
(B) Criminal Procedure - Revisional Jurisdiction - Scope - Power under Section 397 CrPC is supervisory and limited to correcting patent defects or errors of law; it cannot be equated with appellate jurisdiction and does not permit re-appreciation of evidence absent perversity. (Paras 11, 13, 14)
(C) Income Tax Act, 1961 - Sections 269SS and 271D - Cash transaction - Violation of prescribed limits for cash loans does not render a transaction illegal or void for the purpose of maintaining a complaint under Section 138 of the Negotiable Instruments Act. (Paras 28, 29)
(D) Notice of Demand - Service - Where the accused denies receipt of the statutory notice sent to his registered address, failure to make payment within 15 days of receiving the court summons defeats the plea of non-service. (Paras 35, 36)
Facts of the case:
A complaint was filed alleging that a cheque issued for the repayment of a cash loan was dishonoured due to insufficient funds. The accused admitted signing the cheque but contended it was issued as security for a smaller loan, which he claimed was already repaid to a third party. Lower courts convicted the accused, dismissing his defenses regarding the nature of the transaction and the validity of service of notice.
Findings of Court:
The court found that the accused failed to produce credible evidence to rebut the statutory presumption of debt. The contention that the transaction was illegal due to the cash amount exceeding tax limits was rejected as it does not invalidate the underlying debt. The court also held that sentencing for default in compensation payment is legally permissible.
Issues: The primary issues were whether the accused successfully rebutted the statutory presumption of a legally enforceable debt, whether the transaction violated tax laws rendering it unenforceable, and whether the scope of revision allowed for re-evaluating factual findings.
Ratio Decidendi: Once the signature and execution of a cheque are admitted, a strong presumption of a legally enforceable debt arises under Sections 118 and 139 of the Act. The accused bears the burden of proving a probable defense, which was not met; moreover, a violation of tax regulations concerning cash transactions does not render a civil liability unenforceable in criminal proceedings for cheque dishonour.
Result: Revision petition dismissed.
For the Appellants/Petitioners: Owais Khan Pathan
For the Respondents: None
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
2026:HHC:21025
Cr. Revision No. 210 of 2026
Reserved on: 16.4.2026
Date of Decision: 2.6.2026.
Hradaya Kumar Tiwari ...Petitioner
Versus
Harish Chander Sharma & anr. ...Respondent
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?11 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
For the Petitioner : Mr Owais Khan Pathan, Advocate.
For the Respondent : None.
Rakesh Kainthla, Judge
The present revision is directed against the judgment dated 1.1.2026, passed by the learned Additional Sessions Judge, Nahan, District Sirmour, H.P. (learned Appellate Court), vide which the judgment of conviction and order of sentence dated 11.3.2025, passed by the learned Judicial Magistrate First Class, Nahan, District Sirmour, H.P. (learned Trial Court), were upheld.
(Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.)
Briefly stated, the facts giving rise to the present revision are that the complainant advanced a sum of ₹1,70,000/- to the accused in January, 2019 for domestic purposes. The accused issued a cheque of ₹1,70,000/- to return the amount. The complainant presented the cheque to his bank, but it was returned with an endorsement ‘funds insufficient’. The complainant issued a notice to the accused asking him to pay the money within 15 days from the date of receipt of the notice. The accused failed to pay the money despite the receipt of the notice. Hence, a complaint was filed before the Court for taking action against the accused as per the law.
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 Negotiable Instruments Act (NI Act), to which he pleaded not guilty and claimed to be tried.
The complainant examined Ashutosh (CW1) and himself (CW2).
The accused, in his statement recorded under Section 313 of the Cr.P.C., stated that he had borrowed ₹50,000 from the complainant and handed over five blank cheques to the complainant. He admitted his signature on the cheque but denied that he had received any legal notice. He examined himself (DW1).
Learned Trial Court held that the accused had not disputed his signature on the cheque. He asserted that the cheque was issued as security. The cheque issued as a security also attracts the provisions of Section 138 of the NI Act. A cheque carries with it a presumption that it was issued for consideration to discharge the debt/liability. The accused has failed to rebut the presumption. The cheque was dishonoured with the endorsement ‘insufficient funds’. The notice was duly served upon the accused. All the ingredients of the commission of an offence punishable under Section 138 of the NI Act were duly satisfied, hence the learned Trial Court convicted the accused of the commission of an offence punishable under Section 138 of the NI Act and sentenced him to undergo simple imprisonment for one year, pay a compensation of ₹2,50,000/- and in default of payment of compensation to undergo simple imprisonment for two months.
Being aggrieved by the judgment and order passed by the learned Trial Court, the accused filed an appeal, which was decided by the learned Additional Sessions Judge, Nahan, District Sirmour, H.P. (learned Appellate Court). The Appellate Court concurred with the findings recorded by the learned Trial Court that the cheque was issued for consideration. The accused had failed to rebut the presumption attached to the cheque. The cheque was dishonoured with an endorsement ‘insufficient funds’. The notice was duly served upon the accused, and all the ingredients of the commission of an offence punishable under Section 138 of the NI Act were duly satisfied. The sentence imposed by the learned Trial Court was adequate, and no interference was required with the jud
