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SANDEEP SHARMA, J. –

Instant criminal revision petition filed under S. 397 read with S. 401 CrPC, lays challenge to judgment dated 3.12.2021 passed by learned Additional Sessions Judge, Kullu, District Kullu, Himachal Pradesh in Cr. Appeal No. 16 of 2020, affirming judgment of conviction and order of sentence dated 11.2.2020, passed by learned Chief Judicial Magistrate, Kullu, Himachal Pradesh in Cr. Complaint No. 80-I/2012 (486-I/2013) titled Kishori Lal v. Roshan Lal, whereby learned trial Court, while holding petitioner-accused (hereinafter, ‘accused’) guilty of having committed offence punishable under S.138 of the Negotiable Instruments Act (hereinafter, ‘Act’), convicted and sentenced him to undergo simple imprisonment for a period of six months and pay compensation in the sum of Rs.70,000/- to the respondent-complainant (hereinafter, ‘complainant’).

2. Precisely, the facts of the case, as emerge from the record, are that the complainant instituted proceedings under S.138 of the Act in the competent court of law, alleging therein that since the accused was well known to him, on his request, complainant lent Rs.50,000/- to the accused, who with a view to discharge his liability, issued cheque bearing No.023761 dated 5.3.2012 amounting to Rs. 50,000/- drawn on Union Bank of India, Bhunter, Kullu. However, the fact remains that the aforesaid cheque on its presentation was dishonoured on account of insufficient funds vide memo dated 15.3.2012. Since despite having received legal notice, accused failed to make good payment as such, complainant was compelled to institute proceedings under S. 138 of the Act in the competent Court of law.

3. Learned trial Court, on the basis of evidence adduced on record by respective parties, held accused guilty of having committed offence punishable under S. 138 of Act and convicted and sentenced him as per description given above.

4. Being aggrieved and dissatisfied with judgment of conviction and order of sentence, accused preferred an appeal in the court of learned Additional Sessions Judge, Kullu, District Kullu, however, same was dismissed on 3.12.2021. In the aforesaid background accused has approached this Court in the instant proceedings, praying therein for his acquittal, after setting aside judgments of conviction and order of sentence passed by learned Courts below.

5. On 26.2.2022, this court suspended substantive sentence imposed upon the accused by the learned trial Court, subject to accused depositing 50% of compensation amount. However, fact remains that the aforesaid order never came to be complied with, rather, this court repeatedly adjourned the matter, enabling accused to deposit the amount of compensation but since he failed to do the needful, as such, on 16.6.2022 interim protection granted in favour of the accused, was vacated.

6. Today, during proceedings of case, learned counsel for the petitioner submitted that this court may proceed to decide matter on merit.

7. Having heard learned counsel for the parties and perused material available on record vis-à-vis reasoning assigned in the impugned judgments of conviction and order of sentence, this court finds no force in the submission of learned Counsel appearing for the accused that the learned Courts below have failed to appreciate the evidence in its right perspective, rather, this court finds that both the learned Courts below have dealt with each and every aspect of the matter meticulously, as such, there is no scope for this court to interfere with the judgments of conviction and order of sentence.

8. Interestingly, at no point of time, factum with regard to issuance of cheque and signatures thereupon ever came to be disputed by the accused, rather, in his defence, he set up a case that he had borrowed Rs. 15,000/- which he had returned and the cheque was issued as a security, which has been misused by the complainant. Since there is no denial on the part of accused with regard to issuance of cheque and signatures thereupon, it can be presumed that the same was issued by the accused in discharge of lawful liability, as such, presumption under Ss. 118 and 139 of the Act comes into play in favour of the complainant. True, it is that to rebut aforesaid presumption accused can always raise probable defence either by leading some positive evidence or by referring to the material, if any adduced on record by the complainant. But in the case at hand, accused has miserably failed to raise probable defence much less sufficient to rebut the presumption applicable in favour of the complainant under Section 118 and 139 of the Act.

9. The Hon’ble Apex Court in M/s Laxmi Dyechem V. State of Gujarat, 2013(1) RCR(Criminal), has categorically held that if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. To raise probable defence, accused can rely on the materials submitted by the complainant. Needless to say, if the accused/drawer of the cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability, statutory presumption under Section 139 of the Negotiable Instruments Act, regarding commission of the offence comes into play. It would be profitable to reproduce relevant paras No.23 to 25 of the judgment herein:-

“23. Further, a three judge Bench of this Court in the matter of Rangappa vs. Sri Mohan [3] held that Section 139 is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies the strong criminal remedy in relation to the dishonour of the cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. The Court however, further observed that it must be remembered that the offence made punishable by Section 138can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose money is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant accused cannot be expected to discharge an unduly high standard of proof”. The Court further observed that it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is all preponderance of probabilities.

24. Therefore, if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is inconceivable that in some cases the accused may not need to adduce the evidence of his/her own. If however, the accused/drawer of a cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability, obviously statutory presumption under Section 139 of the NI Act regarding commission of the offence comes into play if the same is not rebutted with regard to the materials submitted by the complainant.

25. It is no doubt true that the dishonour of cheques in order to qualify for prosecution under Section 138 of the NI Act precedes a statutory notice where the drawer is called upon by allowing him to avail the opportunity to arrange the payment of the amount covered by the cheque and it is only when the drawer despite the receipt of such a notice and despite the opportunity to make the payment within the time stipulated under the statute does not pay the amount, that the said default would be considered a dishonour constituting an offence, hence punishable. But even in such cases, the question whether or not there was lawfully recoverable debt or liability for discharge whereof the cheque was issued, would be a matter that the trial court will have to examine having regard to the evidence adduced before it keeping in view the statutory presumption that unless rebutted, the cheque is presumed to have been issued for a valid consideration. In view of this the responsibility of the trial judge while issuing summons to conduct the trial in matters where there has been instruction to stop payment despite sufficiency of funds and whether the same would be a sufficient ground to proceed in the matter, would be extremely heavy.”

10. In the case at hand, complainant successfully proved on record by leading cogent and convincing evidence that cheque Exhibit CB was issued by the accused in his favour for discharge of lawful liability but the same was returned vide memo Exhibit CC on account of insufficient funds.

11. Complainant, while stepping into witness box as CW-1 tendered evidence by way affidavit, Ext. CA, whereby he reiterated the contents of the complaint in verbatim. He tendered cheque Ext. CB, return memo Ext. CC, intimation letter, Ext. CD, demand notice, Ext. CE, postal receipt Ext. CF and AD, Ext. CG, Cross-examination conducted on this witness, nowhere suggests that the accused was able to extract anything from this witness, contrary to what he stated in his examination-in-chief. This witness admitted that in February, 2012, he advanced loan to the accused, though he does not recollect the exact date. While stating that he is an agriculturist and a horticulturist, he stated that he is having 3-8 Bigha of land in his name and his annual income is more than Rs.1.50 Lakh. He stated that two cheques were received by him from the accused against the amount borrowed by the accused and both the cheques were signed by the accused and dates and amounts were filled in by accused himself. In his cross-examination, he denied the suggestion that the accused had issued two cheques as security. He also denied that cheque was not presented to the banker and that the accused had not borrowed Rs.50,000/-.

12. CW-2 Vijay Kumar, Accountant, Punjab National Bank, Dhalpur deposed that cheque in question was issued in the name of Kishori Lal by Roshan Lal and same was returned on 16.3.2012, on account of insufficient funds. He filed computer generated account statement, Ext. CW-2/A. Cross-examination conducted upon this witness nowhere suggests that the accused was able to extract anything from this witness, contrary to what he stated in his examination-in-chief.

13. If the entire evidence led on record by complainant is perused in its entirety, it clearly reveals that the complainant had lent Rs. 50,000 to the accused, who with a view to discharge his liability, issued cheque in question, but the same was dishonoured on account of insufficient funds. Since, despite having received legal notice, accused failed to make good the payment to the complainant, as such, complainant was compelled to file complaint under S.138 of the Act.

14. In the case at hand, complainant successfully proved all the ingredients of S. 138 and as such, learned courts below had no option but to pass the judgments of conviction and order of sentence, which have been challenged in the instant proceedings.

15. Moreover, this Court has a very limited jurisdiction under Section 397 of the Cr.PC, to re-appreciate the evidence, especially, in view of the concurrent findings of fact and law recorded by the courts below. In this regard, reliance is placed upon the judgment passed by Hon’ble Apex Court in case “State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri” (1999) 2 Supreme Court Cases 452, wherein it has been held as under:-

“In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice.”

16. Since after having carefully examined the evidence in the present case, this Court is unable to find any error of law as well as fact, if any, committed by the courts below while passing impugned judgments, and as such, there is no occasion, whatsoever, to exercise the revisional power.

17. True it is that the Hon’ble Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 241; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order, but Mr. Singh, learned counsel representing the accused has failed to point out any material irregularity committed by the courts below while appreciating the evidence and as such, this Court sees no reason to interfere with the well reasoned judgments passed by the courts below.

18. Consequently, in view of above, I find no merit in the present petition and same is dismissed. Judgments of conviction and order of sentence passed by learned Courts below are upheld. Petition stands disposed of alongwith all pending applications. Bail bonds furnished by the accused are cancelled. He is directed to surrender to the learned trial Court to serve the sentence imposed upon him, forthwith.

Petition dismissed,

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