Ravinder Kumar vs Sushil Junk Scrap Dealer & Ors on 1 July, 2025

Himachal Pradesh High Court

Ravinder Kumar vs Sushil Junk Scrap Dealer & Ors on 1 July, 2025

Neutral Citation No. ( 2025:HHC:20629 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

.

Cr. Revision No. 682 of 2023

Reserved on: 20.06.2025
Date of Decision: 01.07.2025

Ravinder Kumar
….Petitioner

Versus
Sushil Junk Scrap Dealer & ors.

….Respondents

Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting? No

For the petitioner : Mr. Vijender Katoch,
Advocate.

    For the Respondents no. 1         Ex parte vide order dated
    &2                                03.05.2024





    For the Respondent/State    :     Mr. Ajit Sharma, Deputy
                                      Advocate General.





    Rakesh Kainthla, Judge.

The petitioner has filed the present petition

against the judgment dated 24.11.2023 passed by learned

Additional Sessions Judge-II, Kangra at Dharamshala

(learned Appellate Court), vide which the judgment of

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conviction dated 24.01.2019 and order of sentence dated

28.01.2019 passed by learned Judicial Magistrate First Class,

.

Court No. I, Dharamshala, were upheld. (Parties shall

hereinafter be referred to in the same manner as they were

arrayed before the learned Trial Court for convenience.)

2. Briefly stated, the facts giving rise to the present

petition are that the 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 (in short, the “NI Act“). It

was asserted that the complainant No.2 is the sole

proprietor of the complainant No.1 and is engaged in the

business of trading in junk. The accused is running a

business of the sale of Kariyana Products, daily

confectionery items, etc. He used to sell scrap to the

complainant, and the complainant used to pay the amount

in advance. The complainant was maintaining an open and

running account in the name of the accused, and as per the

Books of Account, a sum of ₹28,400/- was payable by the

accused to the complainant. The complainant contacted the

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accused in September 2007 and asked him to pay the

amount. The accused issued a cheque for ₹ 15,000/- drawn

.

on Kangra Central Cooperative Bank in discharge of his legal

liability. The complainant presented the cheque before his

Bank, but it was dishonoured with an endorsement

‘payment stopped by the drawer’. The complainant

contacted the accused and requested him to pay the amount.

The accused requested the complainant to present the

cheque again. The complainant presented the cheque, and it

was dishonoured with the remark ‘insufficient funds’. The

complainant served a notice upon the accused asking him to

pay the amount of ₹ 15,000/- within 15 days from the date 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 for taking action as per the

law.

3. The learned Trial Court found sufficient reasons

to summon the accused. When the accused appeared, notice

of accusation was put to him for the commission of an

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offence punishable under Section 138 of the NI Act, to which

he pleaded not guilty and claimed to be tried.

.

4. The complainant examined himself (CW1) to

prove his case.

5. The accused, in his statement recorded under

Section 313 of Cr.P.C., admitted that he was doing business

with the complainant and the complainant had opened a

running account in his name. He admitted that the cheque

was presented, and it was dishonoured. He admitted that

notice was issued by the complainant. He stated that he had

sent a reply to the notice. He claimed that he was innocent

and was falsely implicated.

6. Learned Trial Court held that the issuance of the

cheque was not disputed by the accused. Therefore, a

presumption under Section 118(a) and Section 139 of the NI

Act would arise that the cheque was issued in discharge of

the legal liability for consideration. The burden is upon the

accused to rebut the presumption. The accused failed to

rebut the presumption by leading any evidence. The cheque

was dishonoured with the endorsements ‘payment stopped

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by the drawer’ and ‘funds insufficient’. The notice was duly

served upon the accused and accused failed to pay the

.

amount despite the receipt of the valid notice of demand;

hence, all the ingredients of the commission of offence

punishable under Section 138 of NI Act were duly fulfilled.

Consequently, the accused was convicted of the commission

of offence punishable under Section 138 of NI Act and was

sentenced to undergo simple imprisonment for six months,

pay a compensation of ₹30,000/- and in default of payment

of the compensation to undergo further simple

imprisonment for one month for the commission of the

aforesaid offence.

7. 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-II, Kangra at Dharamshala (learned

Appellate Court). Learned Appellate Court concurred with

the findings recorded by the learned Trial Court that the

cheque was issued in discharge of the legal liability. The

burden would shift upon the accused to rebut the

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presumption contained in Section 118 (a) and Section 139 of

the NI Act. The accused did not lead any evidence to rebut

.

the presumption. The cheque was dishonoured with the

endorsement ‘insufficient funds’. The notice was served

upon the accused, and the accused failed to repay the

amount despite the receipt of a valid notice of demand;

hence, he was rightly convicted. The sentence imposed by

the learned Trial Court was not excessive, and no

interference was required with the order of sentence passed

by the learned Trial Court; hence, the appeal was dismissed.

8. Being aggrieved by the judgments and order

passed by the learned Courts below, the accused has filed the

present revision, asserting that the learned Courts below

erred in appreciating the material placed before them. The

learned Courts below wrongly concluded that the cheque

was dishonoured with the remarks ‘insufficient funds’ when

the cheque was dishonoured with the remarks ‘stopped

payment’. The complainant had failed to issue notice within

30 days from the date of the receipt of the first information

regarding the dishonour. The cause of action once arisen

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would not be stopped or revived by the subsequent

presentation of the cheque and issuance of the notice.

.

Learned Courts below failed to consider this aspect; hence, it

was prayed that the present revision be allowed and the

judgments and order passed by learned Courts below be set

aside.

9. I have heard Mr. Vijender Katoch, learned

counsel for the petitioner and Mr. Ajit Sharma, learned

Deputy Advocate General, for the respondent/State.

10. Mr. Vijender Katoch, learned counsel for the

petitioner, submitted that the learned Courts below erred in

appreciating the material on record. It was a specific case of

the complainant that the cheque was dishonoured on its

presentation with an endorsement ‘payment stopped by the

drawer’. The complainant also issued a legal notice to the

accused; hence, the cause of action was complete, and it

could not have been revived by subsequent presentation and

issuance of another notice to the accused. The complaint

was barred by limitation, and the learned Trial Court erred

in taking its cognisance. The sentence imposed by the

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learned Trial Court is excessive as only an amount of

₹ 15,000/-was involved. Therefore, it was prayed that the

.

present revision be allowed and the judgments and order

passed by learned Courts below be set aside.

11. Mr. Ajit Sharma, learned Deputy Advocate

General, for respondent No.3, supported the judgments and

order passed by the learned Courts below and submitted that

no interference is required with them.

12. I have given considerable thought to the

submissions made at the bar and have gone through the

records carefully.

13. It was laid down by the Hon’ble Supreme Court in

Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204:

(2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that the

revisional court is not an appellate court and it can only

rectify the patent defect, errors of jurisdiction or the law. It

was observed at page 207: –

“10. Before adverting to the merits of the
contentions, at the outset, it is apt to mention that
there are concurrent findings of conviction arrived at
by two courts after a detailed appreciation of the
material and evidence brought on record. The High

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Court in criminal revision against conviction is not
supposed to exercise the jurisdiction like the
appellate court, and the scope of interference in

.

revision is extremely narrow. Section 397 of the

Criminal Procedure Code (in short “CrPC“) vests
jurisdiction to satisfy itself or himself as to the
correctness, legality or propriety of any finding,

sentence or order, recorded or passed, and as to the
regularity of any proceedings of such inferior court.
The object of the provision is to set right a patent
defect or an error of jurisdiction or law. There has to

be a well-founded error which is to be determined on
the merits of individual cases. It is also well settled
that while considering the same, the Revisional Court
does not dwell at length upon the facts and evidence

of the case to reverse those findings.

14. This position was reiterated in State of Gujarat v.

Dilipsinh Kishorsinh Rao, 2023 SCC OnLine SC 1294, wherein it

was observed:

“13. The power and jurisdiction of the Higher Court

under Section 397 Cr. P.C., which vests the court with
the power to call for and examine records of an

inferior court, is for the purposes of satisfying itself
as to the legality and regularity of any proceeding or

order made in a case. The object of this provision is to
set right a patent defect or an error of jurisdiction or
law or the perversity which has crept into such
proceedings. It would be apposite to refer to the
judgment of this court in Amit Kapoor v. Ramesh
Chandra, (2012) 9 SCC 460, where the scope of Section
397 has been considered and succinctly explained as
under:

“12. Section 397 of the Code vests the court
with the power to call for and examine the
records of an inferior court for the purposes of

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satisfying itself as to the legality and regularity
of any proceedings or order made in a case. The
object of this provision is to set right a patent

.

defect or an error of jurisdiction or law. There

has to be a well-founded error, and it may not
be appropriate for the court to scrutinise the
orders, which, upon the face of it, bear a token

of careful consideration and appear to be in
accordance with the law. If one looks into the
various judgments of this Court, it emerges that
the revisional jurisdiction can be invoked where

the decisions under challenge are grossly
erroneous, there is no compliance with the
provisions of law, the finding recorded is based
on no evidence, material evidence is ignored or
r judicial discretion is exercised arbitrarily or

perversely. These are not exhaustive classes but
are merely indicative. Each case would have to
be determined on its own merits.

13. Another well-accepted norm is that the revisional

jurisdiction of the higher court is a very limited one
and cannot be exercised in a routine manner. One of
the inbuilt restrictions is that it should not be against

an interim or interlocutory order. The Court has to
keep in mind that the exercise of revisional

jurisdiction itself should not lead to injustice ex facie.
Where the Court is dealing with the question as to

whether the charge has been framed properly and in
accordance with law in a given case, it may be
reluctant to interfere in the exercise of its revisional
jurisdiction unless the case substantially falls within
the categories aforestated. Even framing of charge is
a much-advanced stage in the proceedings under
the CrPC.”

15. It was held in Kishan Rao v. Shankargouda, (2018)

8 SCC 165: (2018) 3 SCC (Cri) 544: (2018) 4 SCC (Civ) 37: 2018

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SCC OnLine SC 651 that it is impermissible for the High Court

to reappreciate the evidence and come to its conclusions in

.

the absence of any perversity. It was observed on page 169:

“12. This Court has time and again examined the

scope of Sections 397/401 CrPC and the ground for
exercising the revisional jurisdiction by the High
Court. In State of Kerala v. Puttumana Illath
Jathavedan Namboodiri [State of Kerala v. Puttumana

Illath Jathavedan Namboodiri, (1999) 2 SCC 452: 1999
SCC (Cri) 275], while considering the scope of the
revisional jurisdiction of the High Court, this Court
has laid down the following: (SCC pp. 454-55, para 5)

“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 a
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 reappreciate the evidence and come to its
own conclusion on the same when the evidence
has 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 a
gross miscarriage of justice. On scrutinising the
impugned judgment of the High Court from the
aforesaid standpoint, we have no hesitation in
coming to the conclusion that the High Court
exceeded its jurisdiction in interfering with the

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conviction of the respondent by reappreciating the
oral evidence. …”

13. Another judgment which has also been referred to

.

and relied on by the High Court is the judgment of

this Court in Sanjaysinh Ramrao Chavan v. Dattatray
Gulabrao Phalke [Sanjaysinh Ramrao
Chavan v. Dattatray Gulabrao Phalke, (2015) 3 SCC 123:

(2015) 2 SCC (Cri) 19]. This Court held that the High
Court, in the exercise of revisional jurisdiction, shall
not interfere with the order of the Magistrate unless
it is perverse or wholly unreasonable or there is non-

consideration of any relevant material, the order
cannot be set aside merely on the ground that
another view is possible. The following has been laid
down in para 14: (SCC p. 135)

“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. 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. The
revisional power of the court under Sections 397

to 401 CrPC 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 the
decision in exercise of their revisional
jurisdiction.”

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14. In the above case, also conviction of the accused
was recorded, and the High Court set aside [Dattatray
Gulabrao Phalke v. Sanjaysinh Ramrao Chavan, 2013

.

SCC OnLine Bom 1753] the order of conviction by

substituting its own view. This Court set aside the
High Court’s order holding that the High Court
exceeded its jurisdiction in substituting its views, and

that too without any legal basis.

16. This position was reiterated in Bir Singh v.

Mukesh Kumar, (2019) 4 SCC 197: (2019) 2 SCC (Cri) 40: (2019)

observed at page 205:

r to
2 SCC (Civ) 309: 2019 SCC OnLine SC 13, wherein it was

“16. It is well settled that in exercise of revisional
jurisdiction under Section 482 of the Criminal
Procedure Code, the High Court does not, in the
absence of perversity, upset concurrent factual

findings. It is not for the Revisional Court to re-
analyse and re-interpret the evidence on record.

17. As held by this Court in Southern Sales &
Services v. Sauermilch Design and Handels

GmbH [Southern Sales & Services v. Sauermilch Design
and Handels GmbH, (2008) 14 SCC 457], it is a well-
established principle of law that the Revisional Court

will not interfere even if a wrong order is passed by a
court having jurisdiction, in the absence of a
jurisdictional error. The answer to the first question
is therefore, in the negative.”

17. The present revision has to be decided as per the

parameters laid down by the Hon’ble Supreme Court.

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18. It was submitted that the complainant had

presented the cheque and it was dishonoured with the

.

endorsement ‘payment stopped by the drawer’. A notice

(Ext.CW1/D) was issued by the complainant. The cause of

action was complete on the first dishonour and issuance of

the notice and could not be revived by subsequent

presentation. This submission is not acceptable. It was laid

down by the Hon’ble Supreme Court in MSR Leathers v. S.

Palaniappan (2013) 1 SCC 177 that there is nothing in the NI

Act to prevent the repeated presentation of the cheque or

issuance of successive notices. It was observed:

“33. Applying the above rule of interpretation and the
provisions of Section 138, we have no hesitation in

holding that a prosecution based on a second or
successive default in payment of the cheque amount

should not be impermissible simply because no
prosecution based on the first default, which was

followed by a statutory notice and a failure to pay had
not been launched. If the entire purpose underlying
Section 138 of the Negotiable Instruments Act is to
compel the drawers to honour their commitments
made in the course of their business or other affairs,
there is no reason why a person who has issued a
cheque which is dishonoured and who fails to make
payment despite statutory notice served upon him
should be immune to prosecution simply because the
holder of the cheque has not rushed to the court with
a complaint based on such default or simply because

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the drawer has made the holder defer prosecution
promising to make arrangements for funds or any
other similar reason. There is, in our opinion, no real

.

or qualitative difference between a case where default

is committed, and prosecution immediately launched
and another where the prosecution is deferred till the
cheque presented again gets dishonoured for the

second or successive time.

*****

35. In the result, we overrule the decision in the

Sadanandan case [(1998) 6 SCC 514: 1998 SCC (Cri)
1471] and hold that the prosecution based upon
second or successive dishonour of the cheque is also
permissible so long as the same satisfies the

requirements stipulated in the proviso to Section 138

of the Negotiable Instruments Act. The reference is
answered accordingly. The appeals shall now be
listed before the regular Bench for hearing and

disposal in light of the observations made above.”

19. This position was reiterated in Kamlesh Kumar v.

State of Bihar (2014) 2 SCC 424, and it was held that the

complainant could present the cheque repeatedly and issue

the notices successively. It was observed:

“8. In the present case, the complainant had not filed
the complaint on the dishonour of the cheque in the
first instance but presented the said cheque again for
encashment. This right of the complainant in
presenting the same very cheque for the second time
is available to him under the aforesaid provision.”

20. This position was reiterated in Bir Singh v.

Mukesh Kumar, (2019) 4 SCC 197: (2019) 2 SCC (Cri) 40: (2019)

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2 SCC (Civ) 309: 2019 SCC OnLine SC 138, wherein it was

observed at page 203:

.

“7. Having regard to the object of Section 138 of the
Negotiable Instruments Act, a prosecution based on a
second or successive default in payment of the

cheque amount is not impermissible simply because
no statutory notice had been issued after the first
default and no proceeding for prosecution had been
initiated. As held by this Court in MSR Leathers v. S.

Palaniappan [MSR Leathers v. S. Palaniappan, (2013) 1
SCC 177: (2013) 1 SCC (Civ) 424 : (2013) 2 SCC (Cri) 458],
there is no real or qualitative difference between a
case where default is committed and prosecution

immediately launched and another where the

prosecution is deferred till the cheque presented
again gets dishonoured for the second time or
successive times.”

21. Therefore, there is no bar in the successive

presentation of the cheque and issuance of the notice.

22. It was suggested to the complainant that he had

taken the cheque as security, and he had filled in the amount

himself. This suggestion shows that the accused has not

disputed the issuance of the cheque, and his signature on the

cheque. It was laid down by this Court in Naresh Verma vs.

Narinder Chauhan 2020(1) Shim. L.C. 398 that where the

accused had not disputed his signatures on the cheque, the

Court has to presume that it was issued in discharge of legal

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liability and the burden would shift upon the accused to

rebut the presumption. It was observed: –

.

“8. Once signatures on the cheque are not
disputed, the plea with regard to the cheque
having not been issued towards discharge of

lawful liability, rightly came to be rejected by
learned Courts below. Reliance is placed upon
Hiten P. Dalal v. Bartender Nath Bannerji, 2001
(6) SCC 16, wherein it has been held as under:

“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……”

9. S.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
nature referred to in section 138 for the

discharge, in whole or in part, of any debt or
other liability.

23. Similar is the judgment in Basalingappa vs.

Mudibasappa 2019 (5) SCC 418 wherein it was held:

“26. Applying the proposition of law as noted above,
in the facts of the present case, it is clear that the
signature on the cheque, having been admitted, a
presumption shall be raised under Section 139 that

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the cheque was issued in discharge of debt or
liability.”

24. This position was reiterated in Kalamani Tex v. P.

.

Balasubramanian, (2021) 5 SCC 283: (2021) 3 SCC (Civ) 25:

(2021) 2 SCC (Cri) 555: 2021 SCC OnLine SC 75 wherein it was

held at page 289:

“14. Once the 2nd appellant had admitted his

signatures on the cheque and the deed, the trial court
ought to have presumed that the cheque was issued
as consideration for a legally enforceable debt. The
trial court fell into error when it called upon the

respondent complainant to explain the

circumstances under which the appellants were liable
to pay. Such an approach of the trial court was
directly in the teeth of the established legal position
as discussed above, and amounts to a patent error of

law.”

25. Similar is the judgment in APS Forex Services (P)

Ltd. v. Shakti International Fashion Linkers (2020) 12 SCC 724,

wherein it was observed: –

“7.2. What is emerging from the material on record is
that the issuance of a cheque by the accused and the
signature of the accused on the said cheque are not
disputed by the accused. The accused has also not
disputed that there were transactions between the
parties. Even as per the statement of the accused,
which was recorded at the time of the framing of the
charge, he has admitted that some amount was due
and payable. However, it was the case on behalf of the
accused that the cheque was given by way of security,
and the same has been misused by the complainant.

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However, nothing is on record that in the reply to the
statutory notice, it was the case on behalf of the
accused that the cheque was given by way of security.

.

Be that as it may, however, it is required to be noted

that earlier the accused issued cheques which came
to be dishonoured on the ground of “insufficient
funds” and thereafter a fresh consolidated cheque of

₹9,55,574 was given which has been returned unpaid
on the ground of “STOP PAYMENT”. Therefore, the
cheque in question was issued for the second time.
Therefore, once the accused has admitted the

issuance of a cheque which bears his signature, there
is a presumption that there exists a legally
enforceable debt or liability under Section 139 of the
NI Act. However, such a presumption is rebuttable in

nature, and the accused is required to lead evidence

to rebut such presumption. The accused was required
to lead evidence that the entire amount due and
payable to the complainant was paid.

9. Coming back to the facts in the present case and

considering the fact that the accused has admitted
the issuance of the cheques and his signature on the
cheque and that the cheque in question was issued

for the second time after the earlier cheques were
dishonoured and that even according to the accused

some amount was due and payable, there is a
presumption under Section 139 of the NI Act that

there exists a legally enforceable debt or liability. Of
course, such presumption is rebuttable in nature.
However, to rebut the presumption, the accused was
required to lead evidence that the full amount due
and payable to the complainant had been paid. In the
present case, no such evidence has been led by the
accused. The story put forward by the accused that
the cheques were given by way of security is not
believable in the absence of further evidence to rebut
the presumption, and more particularly, the cheque
in question was issued for the second time after the

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earlier cheques were dishonoured. Therefore, both
the courts below have materially erred in not
properly appreciating and considering the

.

presumption in favour of the complainant that there

exists a legally enforceable debt or liability as per
Section 139 of the NI Act. It appears that both the
learned trial court as well as the High Court have

committed an error in shifting the burden upon the
complainant to prove the debt or liability, without
appreciating the presumption under Section 139 of
the NI Act. As observed above, Section 139 of the Act

is an example of reverse onus clause and therefore,
once the issuance of the cheque has been admitted
and even the signature on the cheque has been
admitted, there is always a presumption in favour of

the complainant that there exists legally enforceable

debt or liability and thereafter, it is for the accused to
rebut such presumption by leading evidence.”

26. The presumption under Section 139 of the NI Act

was explained by the Hon’ble Supreme Court in Triyambak S.

Hegde v. Sripad, (2022) 1 SCC 742: (2022) 1 SCC (Civ) 512: 2021

SCC OnLine SC 788 as under at page 747:

“12. From the facts arising in this case and the nature

of the rival contentions, the record would disclose
that the signature on the documents at Exts. P-6 and
P-2 are not disputed. Ext. P-2 is the dishonoured
cheque based on which the complaint was filed. From
the evidence tendered before the JMFC, it is clear that
the respondent has not disputed the signature on the
cheque. If that be the position, as noted by the courts
below, a presumption would arise under Section 139
in favour of the appellant who was the holder of the
cheque. Section 139 of the NI Act reads as hereunder:

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“139. Presumption in favour of the holder. –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.”

13. Insofar as the payment of the amount by the

appellant in the context of the cheque having been
signed by the respondent, the presumption for
passing of the consideration would arise as provided
under Section 118(a) of the NI Act, which reads as

hereunder:

“118. Presumptions as to negotiable instruments.

–Until the contrary is proved, the following
r presumptions shall be made:

(a) of consideration: that every negotiable
instrument was made or drawn for
consideration, and that every such instrument,
when it has been accepted, indorsed,

negotiated or transferred, was accepted,
indorsed, negotiated or transferred for
consideration.”

14. The above-noted provisions are explicit to the
effect that such presumption would remain until the

contrary is proved. The learned counsel for the
appellant in that regard has relied on the decision of

this Court in K. Bhaskaran v. Sankaran Vaidhyan
Balan [K. Bhaskaran v. Sankaran Vaidhyan Balan,
(1999) 7 SCC 510: 1999 SCC (Cri) 1284] wherein it is
held as hereunder: (SCC pp. 516-17, para 9)
“9. As the signature in the cheque is admitted
to be that of the accused, the presumption
envisaged in Section 118 of the Act can legally
be inferred that the cheque was made or drawn
for consideration on the date which the cheque
bears. Section 139 of the Act enjoins the Court
to presume that the holder of the cheque

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received it for the discharge of any debt or
liability. The burden was on the accused to
rebut the aforesaid presumption. The trial

.

court was not persuaded to rely on the

interested testimony of DW 1 to rebut the
presumption. The said finding was upheld
[Sankaran Vaidhyan Balan v. K. Bhaskaran,

Criminal Appeal No. 234 of 1995, order dated 23-
10-1998 (Ker)] by the High Court. It is not now
open to the accused to contend differently on
that aspect.”

15. The learned counsel for the respondent has,
however, referred to the decision of this Court
in Basalingappa v. Mudibasappa [Basalingappa v. Mudi
basappa, (2019) 5 SCC 418: (2019) 2 SCC (Cri) 571]

wherein it is held as hereunder: (SCC pp. 432-33,

paras 25-26)
“25. We having noticed the ratio laid down by
this Court in the above cases on Sections 118(a)

and 139, we now summarise the principles
enumerated by this Court in the following
manner:

25.1. Once the execution of the 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

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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 into the witness box in support of his
defence, Section 139 imposed an evidentiary

burden and not a persuasive burden.

25.5. It is not necessary for the accused to come
into the witness box to support his defence.

26. Applying the preposition of law as noted
above, in the facts of the present case, it is clear
that the signature on the cheque, having been
admitted, a presumption shall be raised under

Section 139 that the cheque was issued in

discharge of debt or liability. The question to be
looked into is as to whether any probable
defence was raised by the accused. In the
cross-examination of PW 1, when the specific

question was put that a cheque was issued in
relation to a loan of Rs 25,000 taken by the
accused, PW 1 said that he does not remember.

PW 1 in his evidence admitted that he retired in
1997, on which date he received a monetary

benefit of Rs 8 lakhs, which was encashed by
the complainant. It was also brought in
evidence that in the year 2010, the complainant

entered into a sale agreement for which he paid
an amount of Rs 4,50,000 to Balana Gouda
towards sale consideration. Payment of Rs
4,50,000 being admitted in the year 2010 and
further payment of loan of Rs 50,000 with
regard to which Complaint No. 119 of 2012 was
filed by the complainant, a copy of which
complaint was also filed as Ext. D-2, there was
a burden on the complainant to prove his
financial capacity. In the years 2010-2011, as

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per own case of the complainant, he made a
payment of Rs 18 lakhs. During his cross-
examination, when the financial capacity to

.

pay Rs 6 lakhs to the accused was questioned,

there was no satisfactory reply given by the
complainant. The evidence on record, thus, is a
probable defence on behalf of the accused,

which shifted the burden on the complainant
to prove his financial capacity and other facts.”

16. In that light, it is contended that the very
materials produced by the appellant and the answers

relating to lack of knowledge of property details by
PW 1 in his cross-examination would indicate that
the transaction is doubtful, and no evidence is
tendered to indicate that the amount was paid. In

such an event, it was not necessary for the

respondent to tender rebuttal evidence, but the case
put forth would be sufficient to indicate that the
respondent has successfully rebutted the
presumption.

17. On the position of law, the provisions referred to
in Sections 118 and 139 of the NI Act, as also the

enunciation of law as made by this Court, need no
reiteration as there is no ambiguity whatsoever. In

Basalingappav. Mudibasappa [Basalingappa v.
Mudibasappa, (2019) 5 SCC 418 : (2019) 2 SCC (Cri) 571]
relied on by the learned counsel for the respondent,

though on facts the ultimate conclusion therein was
against raising presumption, the facts and
circumstances are entirely different as the
transaction between the parties as claimed in the said
case is peculiar to the facts of that case where the
consideration claimed to have been paid did not find
favour with the Court keeping in view the various
transactions and extent of amount involved.
However, the legal position relating to the
presumption arising under Sections 118 and 139 of
the NI Act on signature being admitted has been

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reiterated. Hence, whether there is a rebuttal or not
would depend on the facts and circumstances of each
case.”

.

27. This position was reiterated in Tedhi Singh v.

Narayan Dass Mahant, (2022) 6 SCC 735: (2022) 2 SCC (Cri)

726: (2022) 3 SCC (Civ) 442: 2022 SCC OnLine SC 302, wherein

it was held at page 739:

“8. It is true that this is a case under Section 138 of
the Negotiable Instruments Act. Section 139 of the NI
Act provides that the court shall presume 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. This
presumption, however, is expressly made subject to
the position being proved to the contrary. In other
words, it is open to the accused to establish that

there is no consideration received. It is in the context
of this provision that the theory of “probable
defence” has grown. In an earlier judgment, in fact,

which has also been adverted to in Basalingappa
[Basalingappa v. Mudibasappa, (2019) 5 SCC 418:

(2019) 2 SCC (Cri) 571], this Court notes that Section
139 of the NI Act is an example of reverse onus (see

Rangappa v. Sri Mohan [Rangappa v. Sri Mohan,
(2010) 11 SCC 441: (2010) 4 SCC (Civ) 477: (2011) 1 SCC
(Cri) 184]). It is also true that this Court has found
that the accused is not expected to discharge an
unduly high standard of proof. It is accordingly that
the principle has developed that all which the
accused needs to establish is a probable defence. As
to whether a probable defence has been established is
a matter to be decided on the facts of each case on the
conspectus of evidence and circumstances that
exist…”

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28. Similar is the judgment in P. Rasiya v. Abdul

Nazer, 2022 SCC OnLine SC 1131, wherein it was observed:

.

“As per Section 139 of the N.I. Act, 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 discharge, in whole or in
part, of any debt or other liability. Therefore, once
the initial burden is discharged by the Complainant
that the cheque was issued by the accused and the

signature and the issuance of the cheque are not
disputed by the accused, in that case, the onus will
shift upon the accused to prove the contrary that the
cheque was not for any debt or other liability. The

presumption under Section 139 of the N.I. Act is a

statutory presumption and thereafter, once it is
presumed that the cheque is issued in whole or in
part of any debt or other liability which is in favour of
the Complainant/holder of the cheque, in that case, it

is for the accused to prove the contrary.”

29. This position was reiterated in Rajesh Jain v. Ajay

Singh, (2023) 10 SCC 148: 2023 SCC OnLine SC 1275, wherein it

was observed at page 161:

33. The NI Act provides for two presumptions:

Section 118 and Section 139. Section 118 of the Act
inter alia directs that it shall be presumed until the
contrary is proved that every negotiable instrument
was made or drawn for consideration. Section 139 of
the Act stipulates that “unless the contrary is proved,
it shall be presumed that the holder of the cheque
received the cheque for the discharge of, whole or
part of any debt or liability”. It will be seen that the
“presumed fact” directly relates to one of the crucial
ingredients necessary to sustain a conviction under

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Section 138. [The rules discussed hereinbelow are
common to both the presumptions under Section 139
and Section 118 and are hence not repeated–

.

reference to one can be taken as reference to another]

34. Section 139 of the NI Act, which takes the form of
a “shall presume” clause, is illustrative of a
presumption of law. Because Section 139 requires

that the Court “shall presume” the fact stated therein,
it is obligatory for the Court to raise this presumption
in every case where the factual basis for the raising of
the presumption had been established. But this does

not preclude the person against whom the
presumption is drawn from rebutting it and proving
the contrary, as is clear from the use of the phrase
“unless the contrary is proved”.

35. The Court will necessarily presume that the

cheque had been issued towards the discharge of a
legally enforceable debt/liability in two
circumstances. Firstly, when the drawer of the cheque

admits issuance/execution of the cheque
and secondly, in the event where the complainant
proves that the cheque was issued/executed in his

favour by the drawer. The circumstances set out
above form the fact(s) which bring about the

activation of the presumptive clause. [Bharat Barrel &
Drum Mfg. Co. v. Amin Chand Payrelal [Bharat Barrel &
Drum Mfg. Co. v. Amin Chand Payrelal, (1999) 3 SCC

35]]

36. Recently, this Court has gone to the extent of
holding that presumption takes effect even in a
situation where the accused contends that a blank
cheque leaf was voluntarily signed and handed over
by him to the complainant. [Bir Singh v. Mukesh
Kumar [Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197:

(2019) 2 SCC (Civ) 309: (2019) 2 SCC (Cri) 40] ].

Therefore, the mere admission of the drawer’s
signature, without admitting the execution of the

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Neutral Citation No. ( 2025:HHC:20629 )
entire contents in the cheque, is now sufficient to
trigger the presumption.

37. As soon as the complainant discharges the burden

.

to prove that the instrument, say a cheque, was

issued by the accused for discharge of debt, the
presumptive device under Section 139 of the Act helps
shifting the burden on the accused. The effect of the

presumption, in that sense, is to transfer the
evidential burden on the accused of proving that the
cheque was not received by the Bank towards the
discharge of any liability. Until this evidential burden

is discharged by the accused, the presumed fact will
have to be taken to be true, without expecting the
complainant to do anything further.

38. John Henry Wigmore [John Henry Wigmore and the Rules
of Evidence: The Hidden Origins of Modern Law] on

Evidence states as follows:

“The peculiar effect of the presumption of law
is merely to invoke a rule of law compelling the

Jury to reach the conclusion in the absence of
evidence to the contrary from the opponent but
if the opponent does offer evidence to the

contrary (sufficient to satisfy the Judge’s
requirement of some evidence), the

presumption ‘disappears as a rule of law and
the case is in the Jury’s hands free from any
rule’.”

39. The standard of proof to discharge this evidential
burden is not as heavy as that usually seen in
situations where the prosecution is required to prove
the guilt of an accused. The accused is not expected to
prove the non-existence of the presumed fact beyond
a reasonable doubt. The accused must meet the
standard of “preponderance of probabilities”, similar
to a defendant in a civil proceeding. [Rangappa v. Sri
Mohan [Rangappa v. Sri Mohan, (2010) 11 SCC 441:

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(2010) 4 SCC (Civ) 477: (2011) 1 SCC (Cri) 184: AIR 2010
SC 1898]]

30. In the present case, the accused has not provided

.

any explanation in his statement recorded under Section 313

of CrPC. regarding the issuance of the cheque to the

complainant. He did not step into the witness box to prove

his version that the cheque was issued by him as security to

the complainant. It was held in Sumeti Vij v. Paramount Tech

Fab Industries, (2022) 15 SCC 689: 2021 SCC OnLine SC 201 that

the accused has to lead defence evidence to rebut the

presumption and mere denial in his statement under Section

313 of Cr.P.C. is not sufficient to rebut the presumption. It

was observed at page 700:

“20. That apart, when the complainant exhibited all

these documents in support of his complaints and
recorded the statement of three witnesses in support
thereof, the appellant has recorded her statement

under Section 313 of the Code but failed to record
evidence to disprove or rebut the presumption in
support of her defence available under Section 139 of
the Act. The statement of the accused recorded under
Section 313 of the Code is not substantive evidence of
defence, but only an opportunity for the accused to
explain the incriminating circumstances appearing in
the prosecution’s case against the accused. Therefore,
there is no evidence to rebut the presumption that the
cheques were issued for consideration.” (Emphasis
supplied)”

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31. Therefore, the statement of the accused under

Section 313 of Cr.P.C. was not sufficient to prove the plea

.

taken by him that the cheque was issued as a security.

32. The complainant admitted that his name and

amount are filled in the cheque in different inks. It was

submitted that this made the version of the accused highly

probable that the cheque was issued as a security, and the

complainant filled the same as per his convenience. This

submission will not help the accused. It was laid down by the

Hon’ble Supreme Court in Bir Singh v. Mukesh Kumar, (2019)

4 SCC 197: (2019) 2 SCC (Cri) 40: (2019) 2 SCC (Civ) 309: 2019

SCC OnLine SC 138, that a person is liable for the commission

of an offence punishable under Section 138 of the NI Act

even if the cheque is filled by some other person. It was

observed:

“33. A meaningful reading of the provisions of the
Negotiable Instruments Act including, in particular,
Sections 20, 87 and 139, makes it amply clear that a
person who signs a cheque and makes it over to the
payee remains liable unless he adduces evidence to
rebut the presumption that the cheque had been
issued for payment of a debt or in discharge of a
liability. It is immaterial that the cheque may have
been filled in by any person other than the drawer if

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the cheque is duly signed by the drawer. If the cheque
is otherwise valid, the penal provisions of Section 138
would be attracted.

.

34. If a signed blank cheque is voluntarily presented

to a payee, towards some payment, the payee may fill
up the amount and other particulars. This in itself
would not invalidate the cheque. The onus would still

be on the accused to prove that the cheque was not in
discharge of a debt or liability by adducing evidence.

35. It is not the case that the respondent accused him
of either signing the cheque or parted with it under

any threat or coercion. Nor is it the case that the
respondent accused that the unfilled signed cheque
had been stolen. The existence of a fiduciary

relationship between the payee of a cheque and its
drawer would not disentitle the payee to the benefit

of the presumption under Section 139 of the
Negotiable Instruments Act, in the absence of
evidence of exercise of undue influence or coercion.

The second question is also answered in the negative.

36. Even a blank cheque leaf, voluntarily signed and
handed over by the accused, which is towards some

payment, would attract presumption under Section
139 of the Negotiable Instruments Act, in the absence

of any cogent evidence to show that the cheque was
not issued in discharge of a debt.”

33. This position was reiterated in Oriental Bank of

Commerce v. Prabodh Kumar Tewari, 2022 SCC OnLine SC

1089, wherein it was observed:

“12. The submission, which has been urged on behalf
of the appellant, is that even assuming, as the first
respondent submits, that the details in the cheque
were not filled in by the drawer, this would not make
any difference to the liability of the drawer.

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xxxxxx

32. A drawer who signs a cheque and hands it
over to the payee is presumed to be liable unless the

.

drawer adduces evidence to rebut the presumption

that the cheque has been issued towards payment of
a debt or in the discharge of a liability. The
presumption arises under Section 139.

34. Therefore, the cheque is not bad even if it is not

filled by the drawer.

35. The plea taken by the accused that the cheque

was issued as a security is not proved by any material on

record. In any case, it was laid down by this Court in Hamid

Mohammad Versus Jaimal Dass 2016 (1) HLJ 456, that even if

the cheque was issued towards the security, the accused will

be liable. It was observed:

“9. Submission of learned Advocate appearing on

behalf of the revisionist that the cheque in question
was issued to the complainant as security and on this
ground, criminal revision petition be accepted is

rejected as being devoid of any force for the reasons
hereinafter mentioned. As per Section 138 of the
Negotiable Instruments Act 1881, if any cheque is
issued on account of other liability, then the
provisions of Section 138 of the Negotiable
Instruments Act 1881 would be attracted. The court
has perused the original cheque, Ext. C-1 dated
30.10.2008, placed on record. There is no recital in
the cheque Ext. C-1, that cheque was issued as a
security cheque. It is well-settled law that a cheque
issued as security would also come under the

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provision of Section 138 of the Negotiable
Instruments Act 1881. See 2016 (3) SCC page 1 titled
Don Ayengia v. State of Assam & another. It is well-

.

settled law that where there is a conflict between

former law and subsequent law, then subsequent law
always prevails.”

36. It was laid down by the Hon’ble Supreme Court in

Sampelly Satyanarayana Rao vs. Indian Renewable Energy

Development Agency Limited 2016(10) SCC 458 that issuing a

cheque toward security will also attract the liability for the

commission of an offence punishable under Section 138 of

the NI Act. It was observed: –

“10. We have given due consideration to the
submission advanced on behalf of the appellant as

well as the observations of this Court in Indus Airways
Private Limited versus Magnum Aviation Private
Limited (2014) 12 SCC 53 with reference to the

explanation to Section 138 of the Act and the
expression “for the discharge of any debt or other

liability” occurring in Section 138 of the Act. We are
of the view that the question of whether a post-dated
cheque is for “discharge of debt or liability” depends

on the nature of the transaction. If on the date of the
cheque, liability or debt exists or the amount has become
legally recoverable, the Section is attracted and not
otherwise.

11. Reference to the facts of the present case clearly
shows that though the word “security” is used in
clause 3.1(iii) of the agreement, the said expression
refers to the cheques being towards repayment of
instalments. The repayment becomes due under the
agreement, the moment the loan is advanced and the

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instalment falls due. It is undisputed that the loan
was duly disbursed on 28th February 2002, which
was prior to the date of the cheques. Once the loan

.

was disbursed and instalments had fallen due on the

date of the cheque as per the agreement, the
dishonour of such cheques would fall under Section
138 of the Act. The cheques undoubtedly represent

the outstanding liability.

12. Judgment in Indus Airways (supra) is clearly
distinguishable. As already noted, it was held therein
that liability arising out of a claim for breach of

contract under Section 138, which arises on account
of dishonour of a cheque issued, was not by itself at
par with a criminal liability towards discharge of
acknowledged and admitted debt under a loan

transaction. Dishonour of a cheque issued for

discharge of a later liability is clearly covered by the
statute in question. Admittedly, on the date of the
cheque, there was a debt/liability in praesenti in
terms of the loan agreement, as against the case of

Indus Airways (supra), where the purchase order had
been cancelled and a cheque issued towards advance
payment for the purchase order was dishonoured. In

that case, it was found that the cheque had not been
issued for discharge of liability but as an advance for

the purchase order, which was cancelled. Keeping in
mind this fine, but the real distinction, the said

judgment cannot be applied to a case of the present
nature where the cheque was for repayment of a loan
instalment which had fallen due, though such deposit
of cheques towards repayment of instalments was
also described as “security” in the loan agreement. In
applying the judgment in Indus Airways (supra), one
cannot lose sight of the difference between a
transaction of the purchase order which is cancelled
and that of a loan transaction where the loan has
actually been advanced and its repayment is due on
the date of the cheque.

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13. The crucial question to determine the applicability
of Section 138 of the Act is whether the cheque
represents the discharge of existing enforceable debt

.

or liability, or whether it represents an advance

payment without there being a subsisting debt or
liability. While approving the views of different High
Courts noted earlier, this is the underlying principle

as can be discerned from the discussion of the said
cases in the judgment of this Court.” (Emphasis
supplied)

37. This position was reiterated in Sripati Singh v.

State of Jharkhand, 2021 SCC OnLine SC 1002: AIR 2021 SC

5732, and it was held that a cheque issued as security is not

waste paper and a complaint under Section 138 of the N.I. Act

can be filed on its dishonour. It was observed:

“17. A cheque issued as security pursuant to a
financial transaction cannot be considered as a
worthless piece of paper under every circumstance.

‘Security’ in its true sense is the state of being safe,
and the security given for a loan is something given

as a pledge of payment. It is given, deposited or
pledged to make certain the fulfilment of an

obligation to which the parties to the transaction are
bound. If in a transaction, a loan is advanced and the
borrower agrees to repay the amount in a specified
timeframe and issues a cheque as security to secure
such repayment; if the loan amount is not repaid in
any other form before the due date or if there is no
other understanding or agreement between the
parties to defer the payment of the amount, the
cheque which is issued as security would mature for
presentation and the drawee of the cheque would be
entitled to present the same. On such presentation, if

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the same is dishonoured, the consequences
contemplated under Section 138 and the other
provisions of N.I. Act would flow.

.

18. When a cheque is issued and is treated as

‘security’ towards repayment of an amount with a
time period being stipulated for repayment, all that it
ensures is that such cheque which is issued as

‘security cannot be presented prior to the loan or the
instalment maturing for repayment towards which
such cheque is issued as security. Further, the
borrower would have the option of repaying the loan

amount or such financial liability in any other form,
and in that manner, if the amount of the loan due and
payable has been discharged within the agreed
period, the cheque issued as security cannot

thereafter be presented. Therefore, the prior

discharge of the loan or there being an altered
situation due to which there would be an
understanding between the parties is a sine qua non
to not present the cheque which was issued as

security. These are only the defences that would be
available to the drawer of the cheque in proceedings
initiated under Section 138 of the N.I. Act. Therefore,

there cannot be a hard and fast rule that a cheque,
which is issued as security, can never be presented by

the drawee of the cheque. If such is the
understanding, a cheque would also be reduced to an

‘on-demand promissory note’ and in all
circumstances, it would only be civil litigation to
recover the amount, which is not the intention of the
statute. When a cheque is issued even though as
‘security’ the consequence flowing therefrom is also
known to the drawer of the cheque and in the
circumstance stated above if the cheque is presented
and dishonoured, the holder of the cheque/drawee
would have the option of initiating the civil
proceedings for recovery or the criminal proceedings
for punishment in the fact situation, but in any event,

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it is not for the drawer of the cheque to dictate terms
with regard to the nature of litigation.”

38. The complainant admitted in his cross-

.

examination that he had not produced the record regarding

the payment of an amount to the accused. It was submitted

that in the absence of the record, learned Courts below erred

in holding that the existence of legal liability was proved on

record. This submission is not acceptable. It was laid down

by the Hon’ble Supreme Court in Ashok Kumar Versus State of

U.P, 2025 SCC Online SC 706 that the complainant is not to

prove the advancement of the loan because it is a matter of

presumption. It was observed:

22. The High Court while allowing the criminal

revision has primarily proceeded on the presumption
that it was obligatory on the part of the complainant

to establish his case on the basis of evidence by giving
the details of the bank account as well as the date and
time of the withdrawal of the said amount which was

given to the accused and also the date and time of the
payment made to the accused, including the date and
time of receiving of the cheque, which has not been
done in the present case. Pausing here, such
presumption on the complainant, by the High Court,
appears to be erroneous. The onus is not on the
complainant at the threshold to prove his
capacity/financial wherewithal to make the payment
in discharge of which the cheque is alleged to have
been issued in his favour. Only if an objection is
raised that the complainant was not in a financial

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Neutral Citation No. ( 2025:HHC:20629 )
position to pay the amount so claimed by him to have
been given as a loan to the accused, only then the
complainant would have to bring before the Court

.

cogent material to indicate that he had the financial

capacity and had actually advanced the amount in
question by way of loan. In the case at hand, the
appellant had categorically stated in his deposition

and reiterated in the cross-examination that he had
withdrawn the amount from the bank in Faizabad
(Typed Copy of his deposition in the paperbook
wrongly mentions this as ‘Firozabad’). The Court

ought not to have summarily rejected such a stand,
more so when respondent no. 2 did not make any
serious attempt to dispel/negate such a
stand/statement of the appellant. Thus, on the one

hand, the statement made before the Court, both in

examination-in-chief and cross-examination, by the
appellant with regard to withdrawing the money
from the bank for giving it to the accused has been
disbelieved whereas the argument on behalf of the

accused that he had not received any payment of any
loan amount has been accepted. In our decision in S.
S. Production v. Tr. Pavithran Prasanth, 2024 INSC

1059, we opined:

‘8. From the order impugned, it is clear that though

the contention of the petitioners was that the said
amounts were given for producing a film and were

not by way of return of any loan taken, which may
have been a probable defence for the petitioners in
the case, but rightly, the High Court has taken the
view that evidence had to be adduced on this point
which has not been done by the petitioners. Pausing
here, the Court would only comment that the
reasoning of the High Court, as well as the First
Appellate Court and Trial Court, on this issue is
sound. Just by taking a counter-stand to raise a
probable defence would not shift the onus on the
complainant in such a case, for the plea of defence

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has to be buttressed by evidence, either oral or
documentary, which in the present case has not been
done. Moreover, even if it is presumed that the

.

complainant had not proved the source of the money

given to the petitioners by way of loan by producing
statement of accounts and/or Income Tax
Returns, the same ipso facto, would not negate such

claim for the reason that the cheques having being
issued and signed by the petitioners has not been
denied, and no evidence has been led to show that
the respondent lacked capacity to provide the

amount(s) in question. In this regard, we may make
profitable reference to the decision in Tedhi
Singh v. Narayan Dass Mahant, (2022) 6 SCC 735:

’10. The trial court and the first appellate court

have noted that in the case under Section 138 of

the NI Act, the complainant need not show in the
first instance that he had the capacity. The
proceedings under Section 138 of the NI 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

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Neutral Citation No. ( 2025:HHC:20629 )
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.’

(emphasis supplied)’
(underlining in original; emphasis supplied by us in bold)

39. Therefore, there was no requirement to produce

the record regarding the payment of money to the accused,

and the complainant’s case cannot be faulted because such a

record was not produced before the Court.

40. The complainant stated that the cheque was

dishonoured with an endorsement ‘payment stopped by the

drawer’ and thereafter ‘funds insufficient’. It was submitted

that the Bank could not have dishonoured the cheque on

subsequent presentation with an endorsement ‘insufficient

funds’, and the cheque was to be dishonoured with an

endorsement ‘payment stopped by the drawer’. This

submission will not help the accused. The complainant

specifically stated that he contacted the accused after the

dishonour of the cheque, and the accused asked him to repay

the cheque, which means that the accused had talked to the

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Neutral Citation No. ( 2025:HHC:20629 )
Bank, and therefore, the dishonour on the ground of

‘insufficient funds’ is not bad. Even if the payment was

.

stopped by the drawer, it will attract the provisions of

Section 138 of the NI Act. It was laid down by the Hon’ble

Supreme Court in Laxmi Dyechem v. State of Gujarat, (2012) 13

SCC 375: (2012) 4 SCC (Cri) 283: 2012 SCC OnLine SC 970 that

the dishonour of cheque on the ground that the payment

was stopped by the drawer will attract the provisions of

Section 138 of NI Act. It was observed at page 388:

12. In Modi Cements Ltd. [(1998) 3 SCC 249: 1999 SCC
(Cri) 252], a similar question had arisen for the
consideration of this Court. The question was

whether dishonour of a cheque on the ground that
the drawer had stopped payment was a dishonour
punishable under Section 138 of the Act. Relying upon

two earlier decisions of this Court in Electronics Trade
& Technology Development Corpn. Ltd. v. Indian

Technologists and Engineers (Electronics) (P)
Ltd. [(1996) 2 SCC 739: 1996 SCC (Cri) 454] and K.K.

Sidharthan v. T.P. Praveena Chandran [(1996) 6 SCC
369: 1996 SCC (Cri) 1340], it was contended by the
drawer of the cheque that if the payment was stopped
by the drawer, the dishonour of the cheque could not
constitute an offence under Section 138 of the Act.

That contention was specifically rejected by this
Court. Not only that, the decision in Electronics Trade
& Technology Development Corpn. Ltd. [(1996) 2 SCC
739: 1996 SCC (Cri) 454] to the extent the same held
that dishonour of the cheque by the bank after the
drawer had issued a notice to the holder not to

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present the same would not constitute an offence,
was overruled. This Court observed: (Modi Cements
Ltd. case [(1998) 3 SCC 249: 1999 SCC (Cri) 252], SCC

.

pp. 257-58, paras 18 & 20)

“18. The aforesaid propositions in both these
reported judgments, in our considered view, with
great respect, are contrary to the spirit and object

of Sections 138 and 139 of the Act. If we are to
accept this proposition, it will make Section 138 a
dead letter, for, by giving instructions to the bank
to stop payment immediately after issuing a

cheque against a debt or liability, the drawer can
easily get rid of the penal consequences
notwithstanding the fact that a deemed offence
was committed. Further, the following

observations in para 6 in Electronics Trade &

Technology Development Corpn. Ltd. [(1996) 2 SCC
739: 1996 SCC (Cri) 454] (SCC p. 742)
Section 138 is intended to prevent dishonesty

on the part of the drawer of a negotiable
instrument to draw a cheque without sufficient
funds in his account maintained by him in a

bank and induce the payee or holder in due
course to act upon it. Section 138 draws the

presumption that one commits the offence if one
issues the cheque dishonestly.

In our opinion, do not also lay down the law

correctly.

***

20. On a careful reading of Section 138 of the Act,
we are unable to subscribe to the view that Section
138 of the Act draws a presumption of dishonesty
against the drawer of the cheque if he without
sufficient funds to his credit in his bank account to
honour the cheque issues the same and, therefore,
this amounts to an offence under Section 138 of
the Act. For the reasons stated hereinabove, we

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Neutral Citation No. ( 2025:HHC:20629 )
are unable to share the views expressed by this
Court in the above two cases and we respectfully
differ with the same regarding interpretation of

.

Section 138 of the Act to the limited extent as

indicated above.” (emphasis in original)

13. We may also, at this stage, refer to the decisions
of this Court in M.M.T.C. Ltd. v. Medchl Chemicals and

Pharma (P) Ltd. [(2002) 1 SCC 234: 2002 SCC (Cri) 121],
where to this Court considering an analogous
question held that even in cases where the dishonour
was on account of “stop-payment” instructions of

the drawer, a presumption regarding the cheque
being for consideration would arise under Section 139
of the Act. The Court observed: (SCC p. 240, para 19)

“19. Just such a contention has been negatived by
this Court in Modi Cements Ltd. v. Kuchil Kumar

Nandi [(1998) 3 SCC 249: 1999 SCC (Cri) 252]. It has
been held that even though the cheque is
dishonoured by reason of a ‘stop-payment’

instruction, an offence under Section 138 could
still be made out. It is held that the presumption
under Section 139 is also attracted in such a case

also. The authority shows that even when the
cheque is dishonoured by reason of ‘stop-

payment’ instructions by virtue of Section 139, the
court has to presume that the cheque was received
by the holder for the discharge, in whole or in

part, of any debt or liability. Of course, this is a
rebuttable presumption. The accused can thus
show that the ‘stop-payment’ instructions were
not issued because of insufficiency or paucity of
funds. If the accused shows that in his account
there were sufficient funds to clear the amount of
the cheque at the time of presentation of the
cheque for encashment at the drawer bank and
that the stop-payment notice had been issued
because of other valid reasons, including that
there was no existing debt or liability at the time

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Neutral Citation No. ( 2025:HHC:20629 )
of presentation of a cheque for encashment, then
offence under Section 138 would not be made out.
The important thing is that the burden of so

.

proving would be on the accused. Thus, a court

cannot quash a complaint on this ground.”

14. To the same effect is the decision of this Court
in Goaplast (P) Ltd. v. Chico Ursula D’Souza [(2003) 3

SCC 232: 2003 SCC (Cri) 603: 2003 Cri LJ 1723] where
this Court held that “stop-payment instructions”

and consequent dishonour of a post-dated cheque
attract the provision of Section 138. This Court

observed: (SCC pp. 232g-233c)
“Chapter XVII, containing Sections 138 to 142, was
introduced in the Act by Act 66 of 1988 with the

object of inculcating faith in the efficacy of
banking operations and giving credibility to

negotiable instruments in business transactions.
The said provisions were intended to discourage
people from not honouring their commitments by

way of payment through cheques. The court
should lean in favour of an interpretation which
serves the object of the statute. A post-dated

cheque will lose its credibility and acceptability if its
payment can be stopped routinely. The purpose of a

post-dated cheque is to provide some
accommodation to the drawer of the cheque.
Therefore, it is all the more necessary that the drawer

of the cheque should not be allowed to abuse the
accommodation given to him by a creditor by way of
acceptance of a post-dated cheque.

In view of Section 139, it has to be presumed that a
cheque is issued in the discharge of any debt or
other liability. The presumption can be rebutted
by adducing evidence, and the burden of proof is
on the person who wants to rebut the
presumption. This presumption, coupled with the
object of Chapter XVII of the Act, leads to the

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Neutral Citation No. ( 2025:HHC:20629 )
conclusion that by countermanding payment of a
post-dated cheque, a party should not be allowed to
get away from the penal provision of Section 138 of

.

the Act. A contrary view would render Section 138 a

dead letter and will provide a handle to persons
trying to avoid payment under legal obligations
undertaken by them through their own acts, which

in other words can be said to be taking advantage
of one’s own wrong.” (emphasis supplied)

41. Therefore, the accused cannot escape from the

liability that the cheque was dishonoured with the

endorsement ‘payment stopped by the drawer’.

42 The accused did not dispute the receipt of the

notice in his statement recorded under Section 313 of Cr.P.C.

He stated that he had sent a reply to the notice, therefore, it

was duly proved on record that the notice was issued.

43. Thus, it was duly proved that the cheque was

issued in the discharge of the legal liability, it was

dishonoured with an endorsement ‘payment stopped by the

drawer’, and the accused failed to pay the amount despite

the receipt of a valid notice of demand. Hence, the

complainant had proved his case beyond a reasonable doubt,

and the learned Trial Court had rightly convicted the accused

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for the commission of an offence punishable under Section

138 of the NI Act.

.

44. Learned Trial Court had sentenced the accused to

undergo simple imprisonment for six months. The

legislature had introduced the offence of dishonour of

cheques to instil confidence in the public about the

transactions carried out with cheques. It was laid down by

the Hon’ble Supreme Court in Bir Singh v. Mukesh Kumar,

(2019) 4 SCC 197: (2019) 2 SCC (Cri) 40: (2019) 2 SCC (Civ) 309:

2019 SCC OnLine SC 138 that the penal provision of Section

138 of the NI Act is a deterrent in nature. It was observed at

page 203:

“6. The object of Section 138 of the Negotiable
Instruments Act is to infuse credibility into

negotiable instruments, including cheques, and to
encourage and promote the use of negotiable

instruments, including cheques, in financial
transactions. The penal provision of Section 138 of
the Negotiable Instruments Act is intended to be a
deterrent to callous issuance of negotiable
instruments such as cheques without serious
intention to honour the promise implicit in the
issuance of the same.”

45. It was submitted that the sentence of six months

is excessive because the amount of the cheque was only

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Neutral Citation No. ( 2025:HHC:20629 )
₹15,000/-. The Legislature had enacted the offence to instil

confidence in the cheque transactions, and the amount of

.

the cheque is immaterial to impose the sentence. The

sentence cannot be reduced, dependent upon the amount,

and the learned Trial Court had already taken a lenient view

while imposing the sentence of six months upon the

accused. No further interference is required with the

sentence imposed by the learned Trial Court.

46. Learned Trial Court ordered the payment of

compensation of ₹30,000/- to the accused. The cheque was

issued on 16.09.2007, and the sentence was imposed on

28.01.2019 after a lapse of 12 years. The complainant lost

interest on the amount which he would have obtained by

depositing the money in the bank, and he had to pay the

litigation expenses for filing the complaint. He was entitled

to be compensated for the same. It was laid down by the

Hon’ble Supreme Court in Kalamani Tex v. P.

Balasubramanian, (2021) 5 SCC 283: (2021) 3 SCC (Civ) 25:

(2021) 2 SCC (Cri) 555: 2021 SCC OnLine SC 75 that the Courts

should uniformly levy a fine up to twice the cheque amount

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Neutral Citation No. ( 2025:HHC:20629 )
along with simple interest at the rate of 9% per annum. It

was observed at page 291: –

.

19. As regards the claim of compensation raised on
behalf of the respondent, we are conscious of the
settled principles that the object of Chapter XVII of

NIA is not only punitive but also compensatory and
restitutive. The provisions of NIA envision a single
window for criminal liability for the dishonour of a
cheque as well as civil liability for the realisation of

the cheque amount. It is also well settled that there
needs to be a consistent approach towards awarding
compensation, and unless there exist special
circumstances, the courts should uniformly levy fines

up to twice the cheque amount along with simple

interest @ 9% p.a. [R. Vijayan v. Baby, (2012) 1 SCC
260, para 20: (2012) 1 SCC (Civ) 79: (2012) 1 SCC (Cri)
520]”

47. In the present case, the learned Trial Court had

awarded an amount of ₹15,000/- as compensation on the

amount of ₹15,000/- and the same is not excessive, keeping

in view the time elapsed between the issuance of the cheque

and the date of dishonour.

48. It was submitted that the learned Trial Court

erred in imposing the sentence in default of the payment of

compensation. This submission is not acceptable. It was laid

down by the Hon’ble Supreme Court in K.A. Abbas v. Sabu

Joseph, (2010) 6 SCC 230: (2010) 3 SCC (Civ) 744: (2010) 3 SCC

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(Cri) 127: 2010 SCC OnLine SC 612, that the Courts can impose

a sentence of imprisonment in default of payment of

.

compensation. It was observed at page 237:

“20. Moving over to the question, whether a default

sentence can be imposed on default of payment of
compensation, this Court in Hari Singh v. Sukhbir
Singh [(1988) 4 SCC 551: 1988 SCC (Cri) 984: AIR 1988
SC 2127] and in Balraj v. State of U.P. [(1994) 4 SCC 29:

1994 SCC (Cri) 823: AIR 1995 SC 1935], has held that it
was open to all the courts in India to impose a
sentence on default of payment of compensation
under sub-section (3) of Section 357. In Hari

Singh v. Sukhbir Singh [(1988) 4 SCC 551: 1988 SCC (Cri)

984: AIR 1988 SC 2127], this Court has noticed certain
factors which are required to be taken into
consideration while passing an order under the
section: (SCC p. 558, para 11)

“11. The payment by way of compensation
must, however, be reasonable. What is
reasonable may depend upon the facts and

circumstances of each case. The quantum of
compensation may be determined by taking

into account the nature of the crime, the
justness of the claim by the victim and the

ability of the accused to pay. If there is more
than one accused, they may be asked to pay on
equal terms unless their capacity to pay varies
considerably. The payment may also vary
depending on the acts of each accused. A
reasonable period for payment of
compensation, if necessary, by instalments,
may also be given. The court may enforce the
order by imposing a sentence in default.”

21. This position also finds support in R. v. Oliver John
Huish [(1985) 7 Cri App R (S) 272]. The Lord Justice

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Croom Johnson, speaking for the Bench, has
observed:

“When compensation orders may be made, the

.

most careful examination is required.

Documents should be obtained, and evidence,
either on affidavit or orally, should be given.
The proceedings should, if necessary, be

adjourned to arrive at the true state of the
defendant’s affairs.

Very often, a compensation order is made and a
very light sentence of imprisonment is

imposed, because the court recognises that if
the defendant is to have an opportunity of
paying the compensation, he must be enabled
r to earn the money with which to do so. The
result is therefore an extremely light sentence

of imprisonment. If the compensation order
turns out to be virtually worthless, the
defendant has got off with a very light sentence

of imprisonment as well as no order of
compensation. In other words, generally
speaking, he has got off with everything.”

22. The law laid down in Hari Singh v. Sukhbir
Singh [(1988) 4 SCC 551: 1988 SCC (Cri) 984: AIR 1988

SC 2127] was reiterated by this Court in Suganthi
Suresh Kumar v. Jagdeeshan [(2002) 2 SCC 420: 2002
SCC (Cri) 344]. The Court observed: (SCC pp. 424-25,

paras 5 & 10)
“5. In the said decision, this Court reminded all
concerned that it is well to remember the
emphasis laid on the need for making liberal
use of Section 357(3) of the Code. This was
observed by reference to a decision of this
Court in Hari Singh v. Sukhbir Singh [(1988) 4
SCC 551: 1988 SCC (Cri) 984: AIR 1988 SC 2127].
In the said decision, this Court held as follows:

(SCC p. 558, para 11)

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’11. … The quantum of compensation may be
determined by taking into account the nature
of the crime, the justness of the claim by the

.

victim and the ability of the accused to pay. If

there is more than one accused, they may be
asked to pay on equal terms unless their
capacity to pay varies considerably. The

payment may also vary depending on the acts
of each accused. A reasonable period for
payment of compensation, if necessary, by
instalments, may also be given. The court may

enforce the order by imposing a sentence in
default.’
(emphasis in original)
r ***

10. That apart, Section 431 of the Code has only
prescribed that any money (other than fine)
payable by an order made under the Code shall
be recoverable ‘as if it were a fine’. Two modes

of recovery of the fine have been indicated in
Section 421(1) of the Code. The proviso to the
sub-section says that if the sentence directs

that in default of payment of the fine, the
offender shall be imprisoned, and if such

offender has undergone the whole of such
imprisonment in default, no court shall issue
such warrant for the levy of the amount.”

The Court further held: (Jagdeeshan case [(2002) 2
SCC 420: 2002 SCC (Cri) 344], SCC p. 425, para 11)
“11. When this Court pronounced in Hari
Singh v. Sukhbir Singh [(1988) 4 SCC 551: 1988
SCC (Cri) 984: AIR 1988 SC 2127] that a court
may enforce an order to pay compensation ‘by
imposing a sentence in default’ it is open to all
courts in India to follow the said course. The
said legal position would continue to hold good
until it is overruled by a larger Bench of this

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Court. Hence learned Single Judge of the High
Court of Kerala has committed an impropriety
by expressing that the said legal direction of

.

this Court should not be followed by the

subordinate courts in Kerala. We express our
disapproval of the course adopted by the said
Judge in Rajendran v. Jose [(2001) 3 KLT 431]. It

is unfortunate that when the Sessions Judge
has correctly done a course in accordance with
the discipline, the Single Judge of the High
Court has incorrectly reversed it.”

23. In order to set at rest the divergent opinion
expressed in Ahammedkutty case [(2009) 6 SCC 660 :

(2009) 3 SCC (Cri) 302], this Court
in Vijayan v. Sadanandan K. [(2009) 6 SCC 652 : (2009)

3 SCC (Cri) 296], after noticing the provision of

Sections 421 and 431 CrPC, which dealt with mode of
recovery of fine and Section 64 IPC, which
empowered the courts to provide for a sentence of
imprisonment on default of payment of fine, the

Court stated: (Vijayan case [(2009) 6 SCC 652 : (2009)
3 SCC (Cri) 296], SCC p. 658, para 24)

“24. We have carefully considered the
submissions made on behalf of the respective

parties. Since a decision on the question raised
in this petition is still in a nebulous state, there
appear to be two views as to whether a default

sentence of imprisonment can be imposed in
cases where compensation is awarded to the
complainant under Section 357(3) CrPC. As
pointed out by Mr Basant in Dilip S. Dahanukar
case [(2007) 6 SCC 528 : (2007) 3 SCC (Cri) 209],
the distinction between a fine and
compensation as understood under Section
357(1)(b) and Section 357(3) CrPC had been
explained, but the question as to whether a
default sentence clause could be made in
respect of compensation payable under Section

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357(3) CrPC, which is central to the decision in
this case, had not been considered.”
The Court further held: (Vijayan case [(2009) 6 SCC

.

652: (2009) 3 SCC (Cri) 296], SCC p. 659, paras 31-32)

“31. The provisions of Sections 357(3) and 431
CrPC, when read with Section 64 IPC, empower
the court, while making an order for payment

of compensation, to also include a default
sentence in case of non-payment of the same.

32. The observations made by this Court in Hari

Singh case [(1988) 4 SCC 551: 1988 SCC (Cri) 984:

AIR 1988 SC 2127] are as important today as
they were when they were made and if, as
submitted by Dr. Pillay, recourse can only be
r had to Section 421 CrPC for enforcing the same,

the very object of sub-section (3) of Section
357 would be frustrated and the relief
contemplated therein would be rendered
somewhat illusory.”

24. In Shantilal v. State of M.P. [(2007) 11 SCC 243:

(2008) 1 SCC (Cri) 1], it is stated that the sentence of
imprisonment for default in payment of a fine or

compensation is different from a normal sentence of
imprisonment. The Court also delved into the factors

to be taken into consideration while passing an order
under Section 357(3) CrPC. This Court stated: (SCC

pp. 255-56, para 31)
“31. … The term of imprisonment in default of
payment of a fine is not a sentence. It is a
penalty which a person incurs on account of
non-payment of a fine. The sentence is
something which an offender must undergo
unless it is set aside or remitted in part or in
whole, either in appeal or in revision or other
appropriate judicial proceedings, or
‘otherwise’. A term of imprisonment ordered
in default of payment of a fine stands on a

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different footing. A person is required to
undergo imprisonment either because he is
unable to pay the amount of fine or refuse to

.

pay such amount. He, therefore, can always

avoid undergoing imprisonment in default of
payment of the fine by paying such amount. It
is, therefore, not only the power but the duty of

the court to keep in view the nature of the
offence, circumstances under which it was
committed, the position of the offender and
other relevant considerations before ordering

the offender to suffer imprisonment in default
of payment of a fine.” (emphasis in original)

25. In Kuldip Kaur v. Surinder Singh [(1989) 1 SCC 405:

1989 SCC (Cri) 171: AIR 1989 SC 232], in the context of

Section 125 CrPC observed that sentencing a person

to jail is sometimes a mode of enforcement. In this
regard, the Court stated: (SCC p. 409, para 6)
“6. A distinction has to be drawn between a

mode of enforcing recovery on the one hand
and effecting actual recovery of the amount of
monthly allowance which has fallen in arrears

on the other. Sentencing a person to jail is a
‘mode of enforcement’. It is not a ‘mode of

satisfaction’ of the liability. The liability can be
satisfied only by making actual payment of the
arrears. The whole purpose of sending to jail is

to oblige a person liable to pay the monthly
allowance who refuses to comply with the
order without sufficient cause, to obey the
order and to make the payment. The purpose of
sending him to jail is not to wipe out the
liability which he has refused to discharge. It
should also be realised that a person ordered to
pay a monthly allowance can be sent to jail only
if he fails to pay the monthly allowance
‘without sufficient cause’ to comply with the
order. It would indeed be strange to hold that a

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person who, without reasonable cause, refuses
to comply with the order of the court to
maintain his neglected wife or child would be

.

absolved of his liability merely because he

prefers to go to jail. A sentence of jail is no
substitute for the recovery of the amount of
monthly allowance which has fallen in

arrears.”

26. From the above line of cases, it becomes very
clear that a sentence of imprisonment can be granted
for default in payment of compensation awarded

under Section 357(3) CrPC. The whole purpose of the
provision is to accommodate the interests of the
victims in the criminal justice system. Sometimes the
situation becomes such that there is no purpose

served by keeping a person behind bars. Instead,

directing the accused to pay an amount of
compensation to the victim or affected party can
ensure the delivery of total justice. Therefore, this
grant of compensation is sometimes in lieu of

sending a person behind bars or in addition to a very
light sentence of imprisonment. Hence, in default of
payment of this compensation, there must be a just

recourse. Not imposing a sentence of imprisonment
would mean allowing the accused to get away

without paying the compensation, and imposing
another fine would be impractical, as it would mean

imposing a fine upon another fine and therefore
would not ensure proper enforcement of the order of
compensation. While passing an order under Section
357(3), it is imperative for the courts to look at the
ability and the capacity of the accused to pay the
same amount as has been laid down by the cases
above; otherwise, the very purpose of granting an
order of compensation would stand defeated.

49. This position was reiterated in R. Mohan v. A.K.

Vijaya Kumar, (2012) 8 SCC 721: (2012) 4 SCC (Civ) 585: (2012)

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3 SCC (Cri) 1013: 2012 SCC OnLine SC 486 wherein it was

observed at page 729:

.

29. The idea behind directing the accused to pay
compensation to the complainant is to give him
immediate relief so as to alleviate his grievance. In

terms of Section 357(3), compensation is awarded for
the loss or injury suffered by the person due to the act
of the accused for which he is sentenced. If merely an
order directing compensation is passed, it would be

totally ineffective. It could be an order without any
deterrence or apprehension of immediate adverse
consequences in case of its non-observance. The
whole purpose of giving relief to the complainant

under Section 357(3) of the Code would be frustrated

if he is driven to take recourse to Section 421 of the
Code. An order under Section 357(3) must have the
potential to secure its observance. Deterrence can
only be infused into the order by providing for a

default sentence. If Section 421 of the Code puts
compensation ordered to be paid by the court on a
par with the fine so far as the mode of recovery is

concerned, then there is no reason why the court
cannot impose a sentence in default of payment of

compensation as it can be done in case of default in
payment of fine under Section 64 IPC. It is obvious

that in view of this, in Vijayan [(2009) 6 SCC 652:

(2009) 3 SCC (Cri) 296], this Court stated that the
abovementioned provisions enabled the court to
impose a sentence in default of payment of
compensation and rejected the submission that the
recourse can only be had to Section 421 of the Code
for enforcing the order of compensation. Pertinently,
it was made clear that observations made by this
Court in Hari Singh [(1988) 4 SCC 551: 1988 SCC (Cri)
984] are as important today as they were when they
were made. The conclusion, therefore, is that the

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order to pay compensation may be enforced by
awarding a sentence in default.

30. In view of the above, we find no illegality in the

.

order passed by the learned Magistrate and

confirmed by the Sessions Court in awarding a
sentence in default of payment of compensation. The
High Court was in error in setting aside the sentence

imposed in default of payment of compensation.

50. Thus, there is no infirmity in imposing a

sentence of imprisonment in case of default in the payment

of compensation.

51.

r to
No other point was urged.

52. In view of the above, the present revision fails,

and the same is dismissed.

53. Records of the learned Courts below be sent back

forthwith, along with a copy of this judgment.

(Rakesh Kainthla)
Judge

1st July,2025
(saurav pathania)

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