Himachal Pradesh High Court
Reserved On : 03.12.2024 vs Baldev Thakur on 30 December, 2024
Author: Sushil Kukreja
Bench: Sushil Kukreja
1 Neutral Citation No. ( 2024:HHC:16453 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No.452 of 2023
Reserved on : 03.12.2024
Date of Decision: 30.12.2024
_________________________________________________
Umed Ram
….Petitioner
Versus
Baldev Thakur
….Respondent
____________________________________________________
Coram
Hon’ble Mr. Justice Sushil Kukreja, Judge
Whether approved for reporting?1 Yes.
________________________________________________
For the petitioner : Mr. Vijay K. Arora, Senior Advocate
with Mr. Gaurav Kumar Advocate.
For the respondent : Ms. Deepmala Sharma, Advocate.
________________________________________________
Sushil Kukreja, Judge
The instant petition has been filed by the
petitioner-accused/convict (hereinafter referred to as the
accused) under Section 397 read with Section 401 of the
Code of Criminal Procedure (Cr.P.C.) against judgment
dated 19.01.2023, passed by the learned Sessions Judge,
Shimla, H.P., whereby the judgment of conviction and order
of sentence dated 01.10.2022, passed by the learned
Judicial Magistrate, First Class, Court No.3, Shimla, HP, in
1 Whether reporters of Local Papers may be allowed to see the judgment?
2 Neutral Citation No. ( 2024:HHC:16453 )
case No.145-3 of 2017 were affirmed, with a prayer to quash
and set aside the impugned judgments.
2. Brief facts of the case, as emerge from the
record, are that on 02.01.2017 the accused borrowed a sum
of Rs.2,00,000/- from the complainant due to friendly
relations and assured him to return the same within a period
of six months. However, the accused failed to return the
borrowed money to the complainant, hence, in order to
discharge his liability, he issued a cheque bearing
No.520653 dated 07.07.2017, amounting to Rs.2,00,000/-
drawn on HP State Cooperative Bank, Limited, Branch
Sunni, District Shimla, in favour of the complainant.
However, on presentation of the said cheque, it was returned
unpaid to the complainant with the remarks “insufficient
funds’, vide memo dated 11.07.2017. Thereafter, the
complainant issued a legal notice dated 29.07.2017 to the
accused demanding the cheque amount, but the accused
failed to pay the cheque amount within the stipulated period.
Subsequently, the complainant filed a complaint u/s 138 of
3 Neutral Citation No. ( 2024:HHC:16453 )
Negotiable Instruments Act on 05.09.2017 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 06.12.2018 and on
conclusion of trial, the learned trial Court convicted the
accused for the commission of the offence under Section
138 of the NI Act and sentenced him to undergo simple
imprisonment for one year and to pay compensation amount
to the double of the cheque amount i.e. Rs.4,00,000/- and in
default of payment of compensation, he had to undergo
simple imprisonment for a further period of six months.
Feeling aggrieved, the accused preferred an appeal before
the learned Appellate Court, however, the learned Appellate
Court, vide judgment dated 19.01.2023, dismissed the same
and upheld the judgment/order of the learned trial Court.
4. The accused/petitioner, feeling dissatisfied with
the impugned judgment of the learned Appellate Court,
preferred the present revision petition.
4 Neutral Citation No. ( 2024:HHC:16453 )
5. Learned Senior Counsel for the petitioner
contended that both the learned Courts below have not
appreciated the law and evidence in its right perspective as
the respondent had failed to prove that the cheque in
question was actually given by the petitioner in order to
discharge any legal liability. He further contended that the
complainant had not filed his income tax return and had also
failed to disclose his source of income, therefore, it cannot
be said that the cheque in question was issued in discharge
of any legal liability or enforceable debt.
6. On the other hand, learned counsel for the
respondent supported the judgment of the learned trial Court
and contended that since the charge against the accused
has been duly proved beyond reasonable doubt, the learned
trial Court has rightly convicted the accused on the basis of
proper appreciation of evidence.
7. I have heard learned Senior Counsel for the
petitioner as well as learned counsel for the respondent and
also gone through the record carefully.
5 Neutral Citation No. ( 2024:HHC:16453 )
8. Before adverting to the merits of the case, it
would be apposite to have a look into the legal position. The
scope of revision is very limited and unless the revision
petitioner can show that the judgments of the courts below
were perverse or grossly erroneous, this Court would not
ordinarily interfere with their decisions.
9. In State of Kerala vs. Puttumana Illath Jathavedan
Namboodiri, (1999)2 SCC 452 The Hon’ble Apex Court observed
as under:-
“5. 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
jusitce. 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
reappreciate the evidence and come to its own conclusion
on the same when the evidence as already been
appreciated by the Magistrate as well as the 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.”
10. The Hon’ble Apex Court in Sanjaysinh Ramrao
Chavan v. Dattatray Gulabrao Phalke and Others (2015)3
SCC123 (6 supra) also held that:-
“14…………..Unless the order passed by the Magistrate is
perverse or the view taken by the court is wholly
unreasonable or there is non- consideration of any
relevant material or there is palpable misreading of
records, the revisional court is not justified in setting
aside the order, merely because another view is possible.
6 Neutral Citation No. ( 2024:HHC:16453 )
The revisional court is not meant to act as an appellate
court. The whole purpose of the revisional jurisdiction is
to preserve the power in the court to do justice in
accordance with the principles of criminal jurisprudence.
Revisional power of the court under Sections 397 to 401
of Cr.P.C. is not to be equated with that of an appeal.
Unless the finding of the court, whose decision is sought
to be revised, is shown to be perverse or untenable in law
or is grossly erroneous or glaringly unreasonable or
where the decision is based on no material or where the
material facts are wholly ignored or where the judicial
discretion is exercised arbitrarily or capriciously, the
courts may not interfere with decision in exercise of their
revisional jurisdiction.”
11. It is a settled proposition of law that presumption
under Section 139 of NI Act is a presumption of law, as
distinguished from a presumption of fact, such a presumption
is a rebuttable presumption and the drawer of the cheque
may dispel the same. The rebuttal does not have to be
conclusively established, but such evidence must be
adduced in support of the defence that the Court must either
believe the defence to exist or consider its existence to be
reasonably probable; the standard of reasonability being that
of a ‘prudent man’. The aforesaid position in law stands
settled in the judgment of the Hon’ble Supreme Court in the
matter of Hiten P. Dalal Vs. Bratindranath Banerjee, (2001)
6 SCC 16. While dealing with the aspect of presumption in
terms of Section 139 of NI Act, the Hon’ble Supreme Court
observed as under:-
7 Neutral Citation No. ( 2024:HHC:16453 )
“21. The appellant’s submission that the cheques were not
drawn for the ‘discharge in whole or in part of any debt or
other liability’ is answered by the third presumption
available to the Bank under Section 139 of the Negotiable
Instruments Act. This section provides that “it shall be
presumed, unless the contrary is proved, that the holder
of a cheque received the cheque, of the nature referred to
in Section 138 for the discharge, in whole or in part, of
any debt or other liability”. The effect of these
presumptions is to place the evidential burden on the
appellant of proving that the cheque was not received by
the Bank towards the discharge of any liability.
22. Because both Sections 138 and 139 require that the Court
“shall presume” the liability of the drawer of the cheques
for the amounts for which the cheques are drawn, as
noted in State of Madras vs. A. Vaidyanatha Iyer AIR 1958
SC 61, it is obligatory on the Court to raise this
presumption in every case where the factual basis for the
raising of the presumption had been established. “It
introduces an exception to the general rule as to the
burden of proof in criminal cases and shifts the onus on
to the accused” (ibid). Such a presumption is a
presumption of law, as distinguished from a presumption
of fact which describes provisions by which the court
“may presume” a certain state of affairs. Presumptions
are rules of evidence and do not conflict with the
presumption of innocence, because by the latter all that
is meant is that the prosecution is obliged to prove the
case against the accused beyond reasonable doubt. The
obligation on the prosecution may be discharged with the
help of presumptions of law or fact unless the accused
adduces 7 of 36 evidence showing the reasonable
possibility of the non- existence of the presumed fact.
23. In other words, provided the facts required to form the
basis of a presumption of law exists, no discretion is left
with the Court but to draw the statutory conclusion, but
this does not preclude the person against whom the
presumption is drawn from rebutting it and proving the
contrary. A fact is said to be proved when, “after
considering the matters before it, the Court either
believes it to exist, or considers its existence so probable
that a prudent man ought, under the circumstances of the
particular case, to act upon the supposition that it exists”.
Therefore, the rebuttal does not have to be conclusively
established but such evidence must be adduced before
the Court in support of the defence that the Court must
either believe the defence to exist or consider its
existence to be reasonably probable, the standard of
reasonability being that of the ‘prudent man’.
24. Judicial statements have differed as to the quantum of
rebutting evidence required. In Kundan Lal Rallaram vs
Custodian, Evacuee Property, Bombay AIR 1961 SC 1316,
8 Neutral Citation No. ( 2024:HHC:16453 )
this Court held that the presumption of law under Section
118of Negotiable Instruments Act could be rebutted, in
certain circumstances, by a presumption of fact raised
under Section 114 of the Evidence Act. The decision must
be limited to the facts of that case. The more authoritative
view has been laid down in the subsequent decision of
the Constitution Bench in Dhanvantrai Balwantrai Desai
vs State of Maharashtra AIR 1964 SC 575, where this
Court reiterated the principle enunciated in State of
Madras vs Vaidyanath Iyer (Supra) and clarified that the
distinction between the two kinds of presumption lay not
only in the mandate to the Court, but also in the nature of
evidence required to rebut the two. In the case of a
discretionary presumption the presumption if drawn may
be rebutted by an explanation which “might reasonably
be true and which is consistent with the innocence” of
the accused. On the other hand in the case of a
mandatory 8 of 36 presumption “the burden resting on
the accused person in such a case would not be as light
as it is where a presumption is raised under S.114 of the
Evidence Act and cannot be held to be discharged merely
by reason of the fact that the explanation offered by the
accused is reasonable and probable. It must further be
shown that the explanation is a true one. The words
‘unless the contrary is proved’ which occur in this
provision make it clear that the presumption has to be
rebutted by ‘proof’ and not by a bare explanation which is
merely plausible. A fact is said to be proved when its
existence is directly established or when upon the
material before it the Court finds its existence to be so
probable that a reasonable man would act on the
supposition that it exists. Unless, therefore, the
explanation is supported by proof, the presumption
created by the provision cannot be said to be
rebutted……”
12. In the matter of Kumar Exports Vs. Sharma
Carpets, (2009) 2 SCC 513, it has been held by the Hon’ble
Supreme Court that Section 118 of the NI Act inter-alia
directs that it shall be presumed, until the contrary is proved,
that every negotiable instrument was made or drawn for
consideration. The relevant portion of the aforesaid judgment
is reproduced as under:-
9 Neutral Citation No. ( 2024:HHC:16453 )
“13. In a significant departure from the general rule
applicable to contracts, Section 118 of the Act
provides certain presumptions to be raised. This
Section lays down some special rules of evidence
relating to presumptions. The reason for these
presumptions is that, negotiable instrument passes
from hand to hand on endorsement and it would make
trading very difficult and negotiability of the
instrument impossible, unless certain presumptions
are made. The presumption, therefore, is a matter of
principle to facilitate negotiability as well as trade.
Section 118 of the Act provides presumptions to be
raised until the contrary is proved (i) as to
consideration, (ii) as to date of instrument, (iii) as to
time of acceptance,(iv) as to time of transfer, (v) as to
order of indorsements,(vi) as to appropriate stamp and
(vii) as to holder being a holder in due course.
14. Section 139 of the Act provides that it shall be
presumed, unless the contrary is proved, that the
holder of a cheque received the cheque of the nature
referred to in Section 138 for the discharge, in whole
or in part, of any debt or other liability.
19. The use of the phrase “until the contrary is proved” in
Section 118 of the Act and use of the words “unless
the contrary is proved” in Section 139 of the Act read
with definitions of “may presume” and “shall
presume” as given in Section 4 of the Evidence Act,
makes it at once clear that presumptions to be raised
under both the provisions are rebuttable. When a
presumption is rebuttable, it only points out that the
party on whom lies the duty of going forward with
evidence, on the fact presumed and when that party
has produced evidence fairly and reasonably tending
to show that the real fact is not as presumed, the
purpose of the presumption is over.”
13. In the instant case, in support of his case, the
complainant while appearing in the witness box as CW-1 re-
asserted and reiterated the averments made in the complaint
under Section 138 of NI Act. He also placed on record
cheque Ext. CW1/A, return memo Ext. CW1/B, legal notice
Ext.CW1/C and postal receipt Ext.CW1/D.
10 Neutral Citation No. ( 2024:HHC:16453 )
14. From the perusal of the evidence of the
complainant, it has become clear that the cheque Ext.CW1/A
was dishonoured on account of “insufficient funds” in the
bank account of the accused, vide memo, Ext. CW1/B. In
light of the evidence on record, the complainant has
discharged his initial burden and, therefore, it is required to
be presumed that the cheque in question was drawn for
consideration and the complainant received the same in
discharge of the existing debt. The onus, therefore, shifts
upon the accused to establish probable defence so as to
rebut such presumption.
15. The law is well settled that in order to rebut the
statutory presumption, the accused is not expected to prove
his defence beyond reasonable doubt as is expected of the
prosecution in a criminal trial. The accused may adduce
direct evidence to prove that the cheque in question was not
supported by consideration and that there was no debt or
liability to be discharged by him. On the aspects relating to
preponderance of probabilities, the accused has to bring on
record such facts and such circumstances which may lead
11 Neutral Citation No. ( 2024:HHC:16453 )
this court to conclude either that the consideration did not
exist or that its non-existence was so probable that a prudent
man would under the circumstances of the case, act upon
the plea that the consideration did not exist. It is settled
position of law that though there may not be sufficient
negative evidence which could be brought on record by the
accused to discharge his burden, yet mere denial would not
fulfill the requirements of the rebuttal as envisaged under
Sections 118 and 139 of the N.I. Act. Reference can also be
made to the judgment of the Hon’ble Supreme Court in
Rangappa vs. Sri Mohan (2010) 11 SCC 441, wherein it
has been observed that when an accused has to rebut the
presumption under Section 139, the standard of proof for
doing so is that of `preponderance of probabilities. The
relevant paras of the aforesaid judgment are reproduced as
under:-
”26. In light of these extracts, we are in agreement with the
respondent-claimant that the presumption mandated by
Section 139 of the Act does indeed include the existence
of a legally enforceable debt or liability. To that extent, the
impugned observations in Krishna Janardhan Bhat (supra)
may not be correct. However, this does not in any way
cast doubt on the correctness of the decision in that case
since it was based on the specific facts and circumstances
therein. As noted in the citations, this is of course in the
nature of a rebuttable presumption and it is open to the
accused to raise a defence wherein the existence of a
12 Neutral Citation No. ( 2024:HHC:16453 )
legally enforceable debt or liability can be contested.
However, there can be no doubt that there is an initial
presumption which favours the complainant.
27. Section 139 of the Act 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 a strong criminal remedy in relation to the 14 of
36 dishonour of cheques, the rebuttable presumption
under Section 139 is a device to prevent undue delay in
the course of litigation. However, it must be remembered
that the offence made punishable by Section 138 can be
better described as a regulatory offence since the
bouncing of a cheque is largely in the nature of a civil
wrong whose impact 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 accused/defendant cannot be expected to
discharge an unduly high standard or proof.
28. In the absence of compelling justifications, reverse onus
clauses usually impose an evidentiary burden and not a
persuasive burden. Keeping this in view, 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 that of `preponderance of probabilities’.
Therefore, if the accused is able to raise a probable
defence which creates doubts about the existence of a
legally enforceable debt or liability, the prosecution can
fail. As clarified in the citations, the accused can rely on
the materials submitted by the complainant in order to
raise such a defence and it is conceivable that in some
cases the accused may not need to adduce evidence of
his/her own.’ In the present case on hand, the accused
merely denied the case of complainant and he has not
placed sufficient materials before the court to believe his
defence. Mere denial of the case of complainant is not
sufficient ground to believe the defence of accused that
the complainant has not lent an amount of Rs.30 lakhs to
the accused.”
16. In Rohitbhai Jivanlal Patel Vs. State of Gujarat
and another, (2019) 18 SCC 106, it has been held by the
Hon’ble Supreme Court that once the accused could not
deny his signatures on the cheque in question that had been
drawn in favour of the complainant, therefore, it is required to
13 Neutral Citation No. ( 2024:HHC:16453 )
be presumed that the cheque in question was drawn for
consideration and the holder of the cheque i.e. the
complainant received the same in discharge of an existing
debt. Para-15 of the aforesaid judgment is reproduced as
under:-
“15. So far the question of existence of basic ingredients for
drawing of presumption under Sections 118 and 139 of
the NI Act is concerned, apparent it is that the appellant-
accused could not deny his signatures on the cheques in
question that had been drawn in favour of the
complainant on a bank account maintained by the
accused for a sum of Rs.3 lakhs each. The said cheques
were presented to the bank concerned within the period
of their validity and were returned unpaid for the reason
of either the balance being insufficient or the account
being closed. All the basic ingredients of Section 138 as
also of Sections 118 and 139 are apparent on the fact of
the record. The trial court had also consciously taken
note of these facts and had drawn the requisite
presumption. Therefore, it is required to be presumed
that the cheques in question were drawn for
consideration and the holder of the cheques i.e. the
complainant received the same in discharge of an
existing debt. The onus, therefore, shifts on the appellant-
accused to establish a probable defence so as to rebut
such a presumption.”
17. The Hon’ble Supreme Court of India in
Triyambak S Hegde Vs Sripad, (2022) 1 SCC 742, while
relying upon the the constitution bench judgment of
Basalingappa v Mudibasappa, (2019) 5 SCC 418, under
para 14 of its judgment reiterated that once the cheque was
issued and that the signatures are upon the cheque are
accepted by the accused, the presumptions under section
14 Neutral Citation No. ( 2024:HHC:16453 )
118(a) and section 139 of the NI Act arise against the
accused. That is, unless the contrary is proved, it shall be
presumed that the cheques in question were drawn by the
accused for a consideration and that the complainant had
received the cheque in question in discharge of debt/liability
from the accused. Relevant portion of the aforesaid
judgment reads as under:-
“25.1. Once the execution of cheque is admitted Section 139
of the Act mandates a presumption that the cheque was for
the discharge of any debt or other liability.
25.2. The presumption under Section 139 is a rebuttable
presumption and the onus is on the accused to raise the
probable defence. The standard of proof for rebutting the
presumption is that of preponderance of probabilities.
25.3. To rebut the presumption, it is open for the accused to
rely on evidence led by him or the accused can also rely on
the materials submitted by the complainant in order to raise a
probable defence. Inference of preponderance of probabilities
can be drawn not only from the materials brought on record
by the parties but also by reference to the circumstances
upon which they rely.
25.4. That it is not necessary for the accused to come in the
witness box in support of his defence, Section 139 imposed
an evidentiary burden and not a persuasive burden.”
18. In his statement recorded under Section 313,
Cr.P.C., the accused had not disputed his signatures on the
cheque in question. Therefore, it is required to be presumed
that the cheque in question was drawn for a consideration
and the holder of the cheque, i.e. the complainant received
15 Neutral Citation No. ( 2024:HHC:16453 )
the same in discharge of an existing debt. Now, the onus
shifts upon the accused to establish a probable defence so
as to rebut such a presumption. In his defence, the accused
himself stepped into the witness box as DW-1 and deposed
that in the year 2009, he obtained loan of Rs.30,000/- from
the complainant and in lieu thereof,the complainant had
obtained a signed cheque book from him. He further
deposed that he repaid the aforesaid amount and thereafter
when he demanded the cheque book, the complainant had
not returned the same on one pretext or the other. He further
deposed that he had never received a sum of Rs.2,00,000/-
from the complainant and had also not issued any cheque in
lieu thereof and the complainant had misused his cheque.
However, except for the self-serving testimony of the
accused, no evidence has been led by the accused to rebut
the presumption that the cheque was not issued in discharge
of any debt or any other liability. Therefore, in the absence of
any cogent and satisfactory evidence on record on the part
of the accused, it is presumed that the cheque in question
16 Neutral Citation No. ( 2024:HHC:16453 )
had been drawn for consideration and the complainant
received the same in discharge of an existing debt.
19. The learned Senior Counsel for the accused lastly
contended that the complainant had not filed his Income Tax
Return and had also failed to disclose his source of income,
therefore, it cannot be said that the cheque in question was
issued in discharge of any legal liability or enforceable debt.
However, this contention of the learned Senior counsel for
the petitioner, about the complainant failing to file Income
Tax Return or questioning the source of funds of the
complainant for advancing loan to the accused is devoid of
any merits. Mere non filing of Income Tax return by itself
would not mean that the complainant had no source of
income.
20. The Hon’ble Supreme Court in a catena of
judgments had held that the complainant need not prove his
financial capacity in the matter until and unless the same has
been contended by the accused in his reply to the legal
demand notice as only then the complainant would know that
the same is being questioned, however, the accused has the
17 Neutral Citation No. ( 2024:HHC:16453 )
freedom to question the financial capacity of the complainant
during the trial by either producing relevant evidence i.e. by
documents or by cross examining the complainant. The
Hon’ble Apex Court held in Tedhi Singh v. Narayan Dass
Mahant, (2022)6 SCC 735 that:-
“10.The Trial Court and the First Appellate Court have noted that
in the case under Section 138 of the N. I. Act the
complainant need not show in the first instance that he had
the capacity. The proceedings under Section 138 of the N. I.
Act is not a civil suit. At the time, when the complainant
gives his evidence, unless a case is set up in the reply
notice to the statutory notice sent, that the complainant did
not have the wherewithal, it cannot be expected of the
complainant to initially lead evidence to show that he had
the financial capacity. To that extent the Courts in our view
were right in holding on those lines. However, the accused
has the right to demonstrate that the complainant in a
particular case did not have the capacity and therefore, the
case of the accused is acceptable which he can do by
producing independent materials, namely, by examining his
witnesses and producing documents. It is also open to him
to establish the very same aspect by pointing to the
materials produced by the complainant himself. He can
further, more importantly, achieve this result through the
cross examination of the witnesses of the complainant.
Ultimately, it becomes the duty of the Courts to consider
carefully and appreciate the totality of the evidence and
then come to a conclusion whether in the given case, the
accused has shown that the case of the complainant is in
peril for the reason that the accused has established a
probable defence”.
21. In the case on hand, admittedly, reply to the legal
demand notice was never forwarded on behalf of the
accused/petitioner. Moreover, the accused has also failed to
demonstrate during the trial by examining any independent
witness and by producing the relevant documents that the
18 Neutral Citation No. ( 2024:HHC:16453 )
complainant did not have the financial capacity for
advancing loan to the accused. Thus the claim of the
accused regarding financial capacity of the complainant
does not stand as non filing of income tax is a matter
between the revenue and the assessee. If the assessee
has not disclosed his income in the Income Tax return, then
the Income tax department is well within its rights to re-open
the assessment of income of the assessee and to take
action as per the provisions of Income Tax Act. This court
cannot jump to the conclusion that presumption under
Section 139 of NI Act stands rebutted, merely because of
non filing of the Income Tax Return by the complainant
unless, the petitioner makes out a probable defence, as to
how the cheque had gone in the hands of the complainant.
Thus, even though, the complainant has not filed his Income
Tax Return, the same cannot be a ground to reject his claim
to prosecute the accused under Section 138 of NI Act.
22. On overall appraisal of the material available on
record, it is the considered opinion of this Court that the
accused had failed to discharge his burden to rebut the
19 Neutral Citation No. ( 2024:HHC:16453 )
statutory presumption. From the perusal of the material
available on record, the complainant has proved the guilt of
the accused that he is liable to pay the amount covered
under the cheque. There is no substance in the probable
defence of the accused, whereas the complainant has
discharged his burden and proved the guilt of the accused.
The accused has failed to rebut the statutory presumption
drawn against him under Section 138 of NI Act. All the basic
ingredients of Section 138 as well as Sections 118 and 139
of NI Act are apparent in the facts and circumstances of the
present case. There is sufficient evidence to come to the
conclusion that the cheque Ext.CW1/A was issued by the
accused and received by the complainant in discharge of an
existing debt as such the accused has committed an offence
punishable under Section 138 of NI Act.
23. Consequently, the present revision petition is
dismissed being devoid of any merit and the petitioner-
accused is directed to surrender before the learned trial
Court forthwith to serve the sentence as awarded by the
learned trial Court, if not already served. Bail bonds of the
20 Neutral Citation No. ( 2024:HHC:16453 )
petitioner are cancelled and discharged. Interim direction, if
any, stands vacated.
Pending application(s), if any, also stand
disposed of.
( Sushil Kukreja )
Judge
30th December, 2024
(vh/virender)