Himachal Pradesh High Court
Reserved On: 25.03.2025 vs Yashpal on 24 April, 2025
2025:HHC:11008-DB
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 52 of 2011
Reserved on: 25.03.2025
Date of Decision: 24.04.2025
Ranjit Chand
….Appellant
Versus
Yashpal
….Respondent
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge
Whether approved for reporting? No.
For the Appellant/State : Mr. Udit Shaurya
Kaushik, Advocate.
For the Respondent : Mr. Sumeet Raj Sharma,
Advocate.
Rakesh Kainthla, Judge.
The present appeal is directed against the judgment
dated 19.11.2010, passed by learned Judicial Magistrate First
Class, Barsar, District Hamirpur (learned Trial Court), vide
which, the complaint filed by the appellant (complainant
before learned Trial Court) was dismissed. (Parties shall
hereinafter be referred to in the same manner as they were
arrayed before the learned Trial Court for convenience.)
2
2025:HHC:11008-DB
2. Briefly stated, the facts giving rise to the present
appeal are that the complainant filed a complaint before the
learned Trial Court for the commission of an offence
punishable under Section 138 of the Negotiable Istruments Act
(in short ‘NI Act‘). It was asserted that the parties were known
to each other. The accused approached the complainant in
February 2008 and requested him to advance a sum of ₹
30,000/-as a loan. The complainant paid the amount to the
accused. The accused issued a cheque for a sum of ₹ 30,000/-
drawn on UCO Bank, Bijhari to discharge his legal liability.
The complainant presented the cheque before his Bank, from
where it was sent to the Bank of the accused; however, the
cheque was dishonoured with an endorsement ‘insufficient
funds’. The complainant sent a legal notice to the accused
asking him to pay the amount within 15 days of the receipt of
the notice. The notice was duly served upon the accused, but
the accused failed to pay the amount; hence, the complaint
was filed before the Court for taking action against the
accused as per the law.
3
2025:HHC:11008-DB
3. The 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 three witnesses to
prove his case. Ranjeet Singh (CW1) is the complainant, Ashok
Thakur (CW2) is the banker of the complainant, and PK Saini
(PW3) is the banker of the accused.
5. The accused in his statement recorded under
Section 313 of Cr.P.C. denied the prosecution’s case in its
entirety. He claimed that he had handed over the cheque to
Ashok Kumar, son of Amar Nath, in lieu of purchasing the
vehicle. He stated that he wanted to lead the defence evidence,
but no evidence was led.
6. Learned Trial Court held that the complainant did
not specify the date on which the accused approached him to
take a loan. He failed to mention the source from which he had
taken the money. He stated in his cross-examination that the
cheque was handed over on the same day on which the loan
4
2025:HHC:11008-DB
was advanced. This falsifies the version of the complainant
that the loan was advanced in February 2008, since the cheque
was issued on 15.03.2008. The burden was upon the
complainant to show that he had advanced the money to the
accused, but he failed to discharge this burden. Consequently,
the learned Trial Court acquitted the accused.
7. Being aggrieved by the judgment passed by learned
Trial Court, the accused has filed the present appeal, asserting
that the learned Trial Court erred in acquitting the accused.
Provisions of Sections 139 and 118 of the NI Act were not
properly appreciated, therefore, it was prayed that the present
appeal be allowed and the judgment passed by the learned
Trial Court be set aside.
8. I have heard Mr. Udit Shaurya Kaushik, learned
counsel for the appellant/complainant and Mr. Sumeet Raj
Sharma, learned counsel for the respondent/accused.
9. Mr. Udit Shaurya Kaushik, learned counsel for the
appellant/complainant, submitted that the learned Trial Court
erred in dismissing the complaint. It was wrongly held that
the burden is upon the complainant to prove the source of
5
2025:HHC:11008-DB
funds. Learned Trial Court overlooked the presumption
contained in Sections 118 and 139 of the NI Act; therefore, he
prayed that the present appeal be allowed and the judgment
passed by the learned Trial Court be set aside. He relied upon
the judgment of the Hon’ble Supreme Court in Tedhi Singh v.
Narayan Dass Mahant, (2022) 6 SCC 735 in support of his
submission.
10. Mr. Sumeet Raj Sharma, learned counsel for the
respondent/accused, submitted that the scope of jurisdiction
of appeal against the acquittal is limited. This Court should
not interfere with the judgment of an acquittal lightly. The
learned Trial Court had rightly noticed that there was a
discrepancy regarding the advancement of the loan and
handing over the cheque, which made the complainant’s case
suspect. Learned Trial Court was justified in holding that the
burden to prove the existence of a legally enforceable debt was
upon the complainant. In these circumstances, learned Trial
Court had taken a reasonable view, which was possible based
on the material on record. Therefore, he prayed that the
present appeal be dismissed. He relied upon the judgment of
6
2025:HHC:11008-DB
the Hon’ble Supreme Court on Dattatraya v. Sharanappa,
(2024) 8 SCC 573, Rajco Steel Enterprises v. Kavita Saraff, (2024)
9 SCC 390 and Upasana Mishra v. Trek Technology India (P) Ltd.,
2023 SCC OnLine SC 1740 in support of his submission.
11. I have given considerable thought to the
submissions made at the bar and have gone through the
records carefully.
12. The present appeal has been filed against a
judgment of acquittal. It was laid down by the Hon’ble
Supreme Court in Surendra Singh v. State of Uttarakhand, 2025
SCC OnLine SC 176 that the Court can interfere with a judgment
of acquittal if it is patently perverse, is based on
misreading/omission to consider the material evidence and
no reasonable person could have recorded the acquittal based
on the evidence led before the learned Trial Court. It was
observed:
“11. Recently, in the case of Babu Sahebagouda
Rudragoudar v. State of Karnataka 2024 SCC OnLine SC
4035, a Bench of this Court to which one of us was a
Member (B.R. Gavai, J.) had an occasion to consider the
legal position with regard to the scope of interference in
an appeal against acquittal. It was observed thus:
7
2025:HHC:11008-DB
“38. First of all, we would like to reiterate the
principles laid down by this Court governing the scope
of interference by the High Court in an appeal filed by
the State for challenging the acquittal of the accused
recorded by the trial court.
39. This Court in Rajesh Prasad v. State of Bihar [Rajesh
Prasad v. State of Bihar, (2022) 3 SCC 471: (2022) 2 SCC
(Cri) 31] encapsulated the legal position covering the
field after considering various earlier judgments and
held as below : (SCC pp. 482-83, para 29)
“29. After referring to a catena of judgments, this
Court culled out the following general principles
regarding the powers of the appellate court while
dealing with an appeal against an order of acquittal
in the following words: (Chandrappa
case [Chandrappa v. State of Karnataka, (2007) 4 SCC
415: (2007) 2 SCC (Cri) 325], SCC p. 432, para 42)
’42. From the above decisions, in our considered
view, the following general principles regarding
the powers of the appellate court while dealing
with an appeal against an order of acquittal
emerge:
(1) An appellate court has full power to
review, reappreciate and reconsider the
evidence upon which the order of acquittal is
founded.
(2) The Criminal Procedure Code, 1973 puts
no limitation, restriction or condition on the
exercise of such power and an appellate
court, on the evidence before it, may reach its
own conclusion, both on questions of fact and
law.
(3) Various expressions, such as “substantial
and compelling reasons”, “good and
sufficient grounds”, “very strong
circumstances”, “distorted conclusions”,
“glaring mistakes”, etc., are not intended to
8
2025:HHC:11008-DBcurtail the extensive powers of an appellate
court in an appeal against acquittal. Such
phraseologies are more in the nature of
“flourishes of language” to emphasise the
reluctance of an appellate court to interfere
with an acquittal than to curtail the power of
the court to review the evidence and to come
to its own conclusion.
(4) An appellate court, however, must bear in
mind that in case of acquittal, there is a
double presumption in favour of the
accused. Firstly, the presumption of
innocence is available to him under the
fundamental principle of criminal
jurisprudence that every person shall be
presumed to be innocent unless he is proved
guilty by a competent court of law. Secondly,
the accused having secured his acquittal, the
presumption of his innocence is further
reinforced, reaffirmed and strengthened by
the trial court.
(5) If two reasonable conclusions are possible
on the basis of the evidence on record, the
appellate court should not disturb the finding
of acquittal recorded by the trial court.”
40. Further, in H.D. Sundara v. State of Karnataka [H.D.
Sundara v. State of Karnataka, (2023) 9 SCC 581: (2023) 3
SCC (Cri) 748] this Court summarised the principles
governing the exercise of appellate jurisdiction while
dealing with an appeal against acquittal under Section
378CrPC as follows: (SCC p. 584, para 8)
“8. … 8.1. The acquittal of the accused further
strengthens the presumption of innocence.
8.2. The appellate court, while hearing an appeal
against acquittal, is entitled to reappreciate the oral
and documentary evidence;
9
2025:HHC:11008-DB
8.3. The appellate court, while deciding an appeal
against acquittal, after reappreciating the evidence,
is required to consider whether the view taken by
the trial court is a possible view which could have
been taken on the basis of the evidence on record;
8.4. If the view taken is a possible view, the
appellate court cannot overturn the order of
acquittal on the ground that another view was also
possible; and
8.5. The appellate court can interfere with the order
of acquittal only if it comes to a finding that the
only conclusion which can be recorded on the basis
of the evidence on record was that the guilt of the
accused was proved beyond a reasonable doubt and
no other conclusion was possible.”
41. Thus, it is beyond the pale of doubt that the scope
of interference by an appellate court for reversing the
judgment of acquittal recorded by the trial court in
favour of the accused has to be exercised within the
four corners of the following principles:
41.1. That the judgment of acquittal suffers from
patent perversity;
41.2. That the same is based on a misreading/omission
to consider material evidence on record; and
41.3. That no two reasonable views are possible and
only the view consistent with the guilt of the accused
is possible from the evidence available on record.”
12. It could thus be seen that it is a settled legal position
that the interference with the finding of acquittal
recorded by the learned trial judge would be warranted by
the High Court only if the judgment of acquittal suffers
from patent perversity; that the same is based on a
misreading/omission to consider material evidence on
record; and that no two reasonable views are possible and
only the view consistent with the guilt of the accused is
possible from the evidence available on record.”
10
2025:HHC:11008-DB
13. The present appeal has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
14. The complainant had not specified the date of
advancing the cheque in the complaint filed by him. He only
stated in para 3 of the complaint that the accused issued a
cheque dated 15.03.2008 in his favour for ₹ 30,000/- drawn on
UCO Bank, Bijhari. He stated in his cross-examination that the
accused handed over the cheque to him on the date of
advancing the loan. He presented the cheque after five months
of the advancement of the loan. He presented the cheque after
a delay because he kept on demanding the money from the
accused.
15. The complainant’s cross-examination shows that
the cheque was handed over to him on the date of advancing
the loan, and it was presented after about five months. Memo
of dishonour (Ext. CW3/D) mentions the date 18.08.2008. This
fortifies the conclusion of the learned Trial Court that the
cheque was handed over in March 2008, and the loan was also
advanced in March 2008. This is contrary to the assertion
made in the complaint that the loan was advanced in February
11
2025:HHC:11008-DB
2008. In Dattatraya (supra), there was a contradiction
regarding the date of issuance of the cheque. The complainant
had also not proved his financial capacity. It was held that
these circumstances were sufficient to cast a doubt upon the
complainant’s version. It was observed:
“29. Applying the aforementioned legal position to the
present factual matrix, it is apparent that there existed a
contradiction in the complaint moved by the appellant as
against his cross-examination relatable to the time of
presentation of the cheque by the respondent as per the
statements of the appellant. This is to the effect that while
the appellant claimed the cheque to have been issued at
the time of advancing of the loan as a security, however,
as per his statement during the cross-examination it was
revealed that the same was presented when an alleged
demand for repayment of alleged loan amount was raised
before the respondent, after a period of six months of
advancement. Furthermore, there was no financial
capacity or acknowledgment in his income tax returns by
the appellant to the effect of having advanced a loan to the
respondent. Even further the appellant has not been able
to showcase as to when the said loan was advanced in
favour of the respondent nor has he been able to explain
as to how a cheque issued by the respondent allegedly in
favour of Mr Mallikarjun landed in the hands of the
instant holder, that is, the appellant.
30. Admittedly, the appellant was able to establish that
the signature on the cheque in question was of the
respondent and in regard to the decision of this Court
in Bir Singh [Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197 :
(2019) 2 SCC (Civ) 309 : (2019) 2 SCC (Cri) 40], a
presumption is to ideally arise. However, in the
abovereferred context of the factual matrix, the inability
of the appellant to put forth the details of the loan
12
2025:HHC:11008-DBadvanced, and his contradictory statements, the ratio
therein would not impact the present case to the effect of
giving rise to the statutory presumption under Section 139
of the NI Act, 1881. The respondent has been able to shift
the weight of the scales of justice in his favour through
the preponderance of probabilities.
31. The trial court had rightly observed that the appellant
was not able to plead even a valid existence of a legally
recoverable debt, as the very issuance of the cheque is
dubious based on the fallacies and contradictions in the
evidence adduced by the parties. Furthermore, the fact
that the respondent had inscribed his signature on the
agreement drawn on a white paper and not on a stamp
paper, as presented by the appellant, creates another set
of doubts in the case. Since the accused has been able to
cast a shadow of doubt on the case presented by the
appellant, he has therefore successfully rebutted the
presumption stipulated by Section 139 of the NI Act,
1881.”
16. It was held in Rajco Steel Enterprises (supra) that
where the amount was not reflected in the account books, the
acquittal was justified. It was observed:
13. On the question as to whether the sum involved in the
cheques was advanced in discharge of a legally
enforceable debt or not, the petitioner has failed to show
if any sum was advanced towards financial assistance.
The High Court found that the debt/liability, in discharge
of which, according to the petitioner, the cheques were
issued, did not reflect in the petitioner’s balance sheet.
The other partners of the firm did not depose as
prosecution witnesses to establish that the cheque
amounts were advanced to the accused as financial
assistance. Respondent 1-accused has put up a plausible
defence as regards the reason for which the petitioner’s
funds had come to her account. Both the appellate fora, on
13
2025:HHC:11008-DB
going through the evidence, did not find the existence of
any “enforceable debt or other liability”. This strikes at
the root of the petitioner’s case.
17. Therefore, the learned Trial Court had rightly
discarded the complainant’s case due to failure to prove the
advancement of the loan.
18. There is no dispute with the proposition of law
advanced on behalf of the appellant/complainant that a
cheque carries with it a presumption of consideration, and the
burden is upon the accused to rebut this presumption.
However, the accused is not supposed to lead any evidence to
rebut the presumption, and he can rebut the presumption by
the cross-examination of the complainant’s witnesses. In the
present case, the discrepancy in the testimony of the
complainant regarding the date of advancing the loan and
obtaining the cheque will make his testimony suspect, as laid
down by the Hon’ble Supreme Court and the learned Trial
Court was justified in requiring the complainant to establish
his case satisfactorily.
19. Therefore, the learned Trial Court had taken a
reasonable view while dismissing the complaint, and this
14
2025:HHC:11008-DB
Court will not interfere with it while deciding the appeal
against acquittal.
20. Consequently, the present appeal fails, and the
same is dismissed.
21. A copy of the judgment and the record of the
learned Trial Court be sent forthwith.
(Rakesh Kainthla)
Judge
24th April, 2025.
(saurav pathania)
[ad_1]
Source link