Himachal Pradesh High Court
Rajeshwar Singh vs State Of H.P. & Another on 2 July, 2025
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No.172 of 2023
Reserved on: 17.06.2025
.
Date of Decision: 02.07.2025
Rajeshwar Singh ...Petitioner
Versus
State of H.P. & another
...Respondents
Coram r
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No.
For the Petitioner : Ms. Srishti Chauhan, Advocate, Legal
Aid Counsel.
For the Respondents : Mr. Ajit Sharma, Deputy Advocate
General, for respondent No.1/State.
Mr. Chandan Goel, Advocate, for
respondent No.2.
Rakesh Kainthla, Judge
The present revision is directed against the judgment
dated 26.12.2022 passed by learned Additional Sessions Judge-I,
Shimla, District Shimla, H.P. (learned Appellate Court), vide which
the appeal filed by the petitioner (accused before learned Trial
Court) was dismissed and the judgment of conviction, dated
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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07.04.2017 and order of sentence dated 12.04.2017, passed by
learned Additional Chief Judicial Magistrate, Court No.2, Shimla,
.
H.P. (learned Trial Court) were upheld. (Parties shall hereinafter be
referred to in the same manner as they were arrayed before the
learned Trial Court for convenience.)
2. Briefly stated, the facts giving rise to the present
petition are that the complainant filed a complaint against the
offence punishable
r to
accused before the learned Trial Court for the commission of an
under Section 138 of the Negotiable
Instruments Act (in short, ‘NI Act‘). It was asserted that the
complainant is a painter by professional and has come from
Bengal to earn his livelihood in Himachal Pradesh. The accused
approached the complainant to carry out the complete paint work
in his ancestral house at Kotkhai. The complainant and his helper
went to Kotkhai. It was agreed that the accused would carry out
the paint work for ₹32,000/-. The accused paid ₹22,000/- and
promised to pay ₹10,000/- subsequently. The accused requested
the complainant to give him a friendly loan of ₹11,000/-and
assured the complainant that he would return ₹21,000/- within
one month. The complainant believed the accused and handed
over ₹11,000/- to him. The accused did not pay anything to the
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complainant. The complainant asked the accused for his money,
and the accused issued a cheque of ₹21,000/- drawn at State Bank
.
of Patiala, Khalini, H.P. to discharge his legal liability. The
complainant presented the cheque to his bank, but it was
dishonoured with an endorsement ‘funds insufficient’. The
complainant sent a legal notice to the accused asking him to pay
₹21,000/- within 15 days from the receipt of the notice. The notice
was duly served upon the accused, but the accused failed to repay
the amount. Hence, the complaint was filed before the learned
Trial Court to take action against him as per law.
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 has examined himself as (CW1) to
prove his case.
5. The accused, in his statement recorded under Section
313 of CrPC, stated that he had handed over the cheque to Rakesh.
He did not know the complainant. The complainant had neither
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done any work nor had he paid any money to the accused. He has
examined himself (DW-1).
.
6. Learned Trial Court held that the accused did not
dispute his signatures on the cheque; therefore, presumption
would arise under Sections 118(a) and 139 of the NI Act. The
cheque was issued for consideration in discharge of the legal
liability. The statement of the accused was not sufficient to rebut
the presumption attached to the cheque. The plea taken by him
that the cheque was handed over to Rakesh was not proved
because Rakesh was not examined before the Court. The accused
admitted his signature on the document (Ext.DX-2),
acknowledging his liability of ₹22,000/-. This corroborated the
complainant’s version that the cheque was issued in discharge of
the legal liability. The cheque was dishonoured with an
endorsement ‘funds insufficient’ and the accused failed to pay the
amount despite the receipt of a valid notice of demand, therefore,
the accused was convicted of the commission of an offence
punishable under Section 138 of the NI Act and sentenced to
undergo simple imprisonment for six months, pay compensation
of ₹ 31,000/- and in default of payment of fine to further undergo
simple imprisonment of 15 days.
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7. Being aggrieved from the judgment and order passed
by the learned Trial Court, the accused preferred an appeal, which
.
was decided by the learned Appellate Court. Learned Appellate
Court concurred with the findings recorded by the learned Trial
Court that the cheque was presumed to be issued in discharge of
the legal liability. The evidence of the accused was not sufficient
to rebut the presumption attached to the cheque. The cheque was
dishonoured with an endorsement ‘funds insufficient’. The
accused failed to pay the amount despite the receipt of a valid
notice of demand. Therefore, the accused was rightly convicted
and sentenced for the commission of the aforesaid offence. The
sentence of six months and compensation of ₹31,000/- was not
excessive, and no interference was required with it. Hence, the
appeal was dismissed.
8. Being aggrieved from the judgments and order passed
by the learned Courts below, the accused has filed the present
revision, asserting that the learned Courts below had failed to
properly construe the law. The initial burden to prove that the
cheque was issued in discharge of the legal liability was upon the
complainant; however, the complainant failed to discharge this
burden. The evidence on record proved that the cheque was issued
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in favour of Rakesh, and it was misused by the complainant. No
document was produced to establish that ₹11,000/- was advanced
.
by the complainant to the accused. Therefore, it was prayed that
the present revision be allowed and the judgments and order
passed by the learned Courts below be set aside.
9. I have heard Ms. Srishti Chauhan, learned Legal Aid
Counsel for the petitioner, Mr. Ajit Sharma, learned Deputy
Advocate General for respondent N0.1/State, and Mr. Chanden
Goel, learned counsel for the respondent No.2.
10. Ms. Srishti Chauhan, learned Legal Aid Counsel for the
petitioner, submitted that the learned Courts below erred in
convicting and sentencing the accused. The complainant’s version
that he had advanced ₹11,000/- to the accused was not probable.
No material was brought on record to establish this version.
Learned Courts below erred in shifting the onus to the accused.
The complainant had failed to discharge the primary burden to
prove the existence of consideration; therefore, she prayed that
the present petition be allowed and the judgments and order
passed by the learned Courts below be set aside.
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11. Mr. Ajit Sharma, learned Deputy Advocate General for
respondent No.1, submitted that the judgments and order passed
.
by the learned Courts below are based on proper reasons and no
interference is required with the same. Therefore, he prayed that
the present petition be dismissed.
12 Mr. Chandan Goel, learned counsel for respondent
No.2/complainant, submitted that the accused admitted his
signatures on the cheque; hence, the learned Courts below were
justified in raising presumption under Sections 118(a) and 139 of
the NI Act that the cheque was issued in discharge of legal liability.
The evidence of the accused was not sufficient to rebut this
presumption; there is no infirmity in the judgments and order
passed by the learned Courts below. Hence, he prayed that the
present petition be dismissed.
13 I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
14. 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
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not an appellate court and it can only rectify the patent defect,
errors of jurisdiction or the law. It was observed on 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 broughton record. The High 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 ProcedureCode (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. Theobject 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 factsand evidence of the case to reverse those findings.
15. 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
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Page |9Chandra, (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 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 thelaw. 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
rprovisions of law, the finding recorded is based on noevidence, material evidence is ignored or 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 ownmerits.
13. Another well-accepted norm is that the revisional
jurisdiction of the higher court is a very limited one andcannot be exercised in a routine manner. One of the inbuilt
restrictions is that it should not be against an interim orinterlocutory 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 thequestion 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.”
16. It was held in Kishan Rao v. Shankargouda, (2018) 8 SCC
165: (2018) 3 SCC (Cri) 544: (2018) 4 SCC (Civ) 37: 2018 SCC OnLine
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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 therevisional 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 ofthe 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 forthe 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 powercannot 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 beappropriate for the High Court to reappreciate the
evidence and come to its own conclusion on the samewhen 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 HighCourt 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 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
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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.”
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.
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17. This position was reiterated in Bir Singh v. Mukesh
Kumar, (2019) 4 SCC 197: (2019) 2 SCC (Cri) 40: (2019) 2 SCC (Civ)
.
309: 2019 SCC OnLine SC 13, wherein it was observed at page 205:
“16. It is well settled that in exercise of revisional
jurisdiction under Section 482 of the Criminal ProcedureCode, 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 wrongorder 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.”
18. The present revision has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
19. The accused admitted his signatures on the cheque
(Ext.CW1/A) in his cross-examination. He claimed that he had
issued the blank signed cheque in favour of one Rakesh. 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 liability and the burden would shift
upon the accused to rebut the presumption. It was observed: –
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“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 thepresumption 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, theCourt 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
r 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.
20. 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 beraised under Section 139 that the cheque was issued in
discharge of debt or liability.”
21. 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:
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“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 in 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.”
22. 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 theframing 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.
However, nothing is on record that in the reply to thestatutory 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 theaccused 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
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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 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.”
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23. 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 onwhich 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 presumptionwould arise under Section 139 in favour of the appellant
who was the holder of the cheque. Section 139 of the NI Actreads as hereunder:
“139. Presumption in favour of the holder. –It shall be
presumed, unless the contrary is proved, that theholder 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
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.”
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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 thedate which the cheque bears. Section 139 of the Act
enjoins the Court to presume that the holder of the
cheque received it for the discharge of any debt or
liability. The burden was on the accused to rebut the
r aforesaid presumption. The trial court was notpersuaded 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. Mudibasapp
a, (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.
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25.2. The presumption under Section 139 is a
rebuttable presumption, and the onus is on the
accused to raise the probable defence. The standard of
proof for rebutting the presumption is that of
.
preponderance of probabilities.
25.3. To rebut the presumption, it is open for the
accused to rely on evidence led by him or the accused
can also rely on the materials submitted by the
complainant in order to raise a probable defence.
Inference of preponderance of probabilities can be
drawn not only from the materials brought on record
by the parties but also by reference to the
circumstances upon which they rely.
25.4. That it is not necessary for the accused to come
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
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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 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
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P a g e | 20
Act on signature being admitted has been reiterated. Hence,
whether there is a rebuttal or not would depend on the facts
and circumstances of each case.”
24. 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 acheque 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 thecontrary. 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. SriMohan, (2010) 11 SCC 441: (2010) 4 SCC (Civ) 477: (2011) 1 SCC
(Cri) 184]). It is also true that this Court has found that theaccused 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 aprobable 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…”
25. Similar is the judgment in P. Rasiya v. Abdul Nazer, 2022
SCC OnLine SC 1131, wherein it was observed:
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“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 shiftupon 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 inwhole 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.”
26. 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 everynegotiable instrument was made or drawn for
consideration. Section 139 of the Act stipulates that “unlessthe 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 thatthe “presumed fact” directly relates to one of the crucial
ingredients necessary to sustain a conviction under 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::: Downloaded on – 02/07/2025 21:23:08 :::CIS
P a g e | 22presume” 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 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.
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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 theJudge’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: (2010) 4 SCC (Civ) 477: (2011) 1 SCC (Cri) 184: AIR
2010 SC 1898]]
27. Therefore, the learned Courts below had rightly held
that a presumption would arise in the present case that the cheque
was issued in discharge of the legal liability for consideration.
28. The accused admitted his signatures on the document
(Ext.DX2) in his cross-examination. This document reads that the
accused had taken a loan of ₹ 22,000/- on 12.09.2012, but he could
not return it. This document corroborates the complainant’s
version that the accused was liable to pay ₹ 22,000/- to him.
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29. The accused claimed that he had handed over the
cheque to Rakesh. Learned Courts below had rightly held that the
.
statement of Rakesh was not recorded to corroborate this fact. The
accused had filed an application under Section 145(2) of the NI Act
for seeking permission to cross-examine the complainant, but he
had nowhere stated in the application that the cheque was issued
to Rakesh, and he wanted to cross-examine the complainant
about this fact. The accused stated in his cross-examination that
he did not know the name of father of Rakesh. This admission
makes his assertion doubtful that a blank signed security cheque
was handed over to Rakesh. It is difficult to believe that a person
would hand over a blank signed security cheque to a person who
was not even properly known to him. The accused admitted in his
cross-examination that he had not lodged any FIR against the
complainant for the misuse of the cheque. It is not shown that the
accused had taken any other steps to stop the misuse of the cheque
issued by him to Rakesh. He has not even stated that he asked
Rakesh about the cheque and how it came into the complainant’s
possession. Therefore, this contemporaneous conduct of the
accused does not support his plea that the cheque was issued to
Rakesh, and it was misused by the complainant. Thus, the learned
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Courts below had rightly discarded the plea taken by the accused
that he had handed over a blank signed cheque to Rakesh, which
.
was misused by the complainant.
30. No other evidence was led to rebut the presumption
attached to the cheque, and learned Courts below had rightly held
that the accused had failed to rebut the presumption attached to
the cheque.
31. The
complainant stated that the cheque
dishonoured with an endorsement ‘insufficient funds’. This fact is
r was
duly corroborated by the dishonour memo (Ext.CW-1/B) in which
the reason for dishonour of the cheque was mentioned as
‘insufficient funds’. It was laid down by the Hon’ble Supreme
Court in Mandvi Cooperative Bank Ltd. v. Nimesh B. Thakore, (2010)
3 SCC 83: (2010) 1 SCC (Civ) 625: (2010) 2 SCC (Cri) 1: 2010 SCC
OnLine SC 155 that the memo issued by the Bank is presumed to be
correct and the burden is upon the accused to rebut the
presumption. It was observed at page 95:
24. Section 146, making a major departure from the
principles of the Evidence Act, provides that the bank’s slip
or memo with the official mark showing that the cheque
was dishonoured would, by itself, give rise to the
presumption of dishonour of the cheque, unless and until::: Downloaded on – 02/07/2025 21:23:08 :::CIS
P a g e | 26that fact was disproved. Section 147 makes the offences
punishable under the Act compoundable.
32. In the present case, no evidence was produced to rebut
.
the presumption, and the learned Courts below had rightly held
that the cheque was dishonoured with an endorsement
‘insufficient funds’.
33. The complainant stated that he had issued a notice of
demand to the accused asking him to pay the amount within 15
days of the receipt of the notice. The notice was sent to the same
address which was furnished by the accused in the personal bond,
notice of accusation and statement recorded under Section 313 of
Cr.P.C. Therefore, it was sent to the correct address. There is a
presumption that notice was served upon the accused as per
Section 27 of the General Clauses Act. No material was brought on
record to rebut this presumption, and the learned Courts below
had rightly held that the notice was deemed to be served upon the
accused.
34. In any case, it was laid down in C.C. Allavi Haji vs. Pala
Pelly Mohd. 2007(6) SCC 555 that the person who claims that he
had not received the notice has to pay the amount within 15 days
from the date of the receipt of the summons from the Court and in
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case of failure to do so, he cannot take the advantage of the fact
that notice was not received by him. It was observed:
.
“It is also to be borne in mind that the requirement of giving
of notice is a clear departure from the rule of Criminal Law,
where there is no stipulation of giving of notice before filing
a complaint. Any drawer who claims that he did not receive thenotice sent by post, can, within 15 days of receipt of summons
from the court in respect of the complaint under Section 138 of
the Act, make payment of the cheque amount and submit to the
Court that he had made payment within 15 days of receipt ofsummons (by receiving a copy of the complaint with the
summons) and, therefore, the complaint is liable to be rejected.
A person who does not pay within 15 days of receipt of the
summons from the Court along with the copy of the complaintunder Section 138 of the Act, cannot obviously contend that
there was no proper service of notice as required under Section
138, by ignoring statutory presumption to the contrary under
Section 27 of the G.C. Act and Section 114 of the Evidence Act. In
our view, any other interpretation of the proviso woulddefeat the very object of the legislation. As observed in
Bhaskaran‘s case (supra), if the giving of notice in the
context of Clause (b) of the proviso was the same as the
receipt of notice a trickster cheque drawer would get thepremium to avoid receiving the notice by adopting different
strategies and escape from legal consequences of Section138 of the Act.” (Emphasis supplied)
35. The accused has not paid any money to the
complainant; hence, it was duly proved that the accused had failed
to pay the money despite the receipt of the notice.
36. Therefore, it was duly proved before the learned Trial
Court that the accused had issued a cheque in discharge of his legal
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P a g e | 28
liability, which was dishonoured with an endorsement ‘funds
insufficient’ and the accused had failed to pay the amount despite
.
deemed receipt of the notice. Hence, the complainant had proved
his case beyond all reasonable doubt, and the learned Courts below
had rightly convicted the accused for the commission of an
offence punishable under Section 138 of the NI Act.
37. The learned Trial Court sentenced the accused to
undergo simple imprisonment for six months. 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 provisions of Section 138 is 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 ofnegotiable instruments, including cheques, in financial
transactions. The penal provision of Section 138 of the
Negotiable Instruments Act is intended to be a deterrent tocallous issuance of negotiable instruments such as cheques
without serious intention to honour the promise implicit in
the issuance of the same.”
38. Keeping in view the deterrent nature of the sentence to
be awarded, the sentence of six months imprisonment cannot be
said to be excessive; rather, it appears to be lenient.
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39. Learned Trial Court sentenced the accused to pay a fine
of ₹31,000/-, the cheque was issued on 29.09.2012; the sentence
.
was imposed on 12.04.2017 after the lapse of more than 4½ years.
The complainant lost interest on the amount, which he would have
gained by depositing the amount 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 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 thatthe object of Chapter XVII of NIA is not only punitive but also
compensatory and restitutive. The provisions of NIA envision asingle 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 aconsistent 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]”
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40. The amount of ₹ 10,000/-awarded as compensation on
the principal amount of ₹21,000/- is not excessive, and no
.
interference is required with it.
41. Learned Trial Court ordered the accused to undergo
simple imprisonment for 15 days in case of default in payment of
compensation. It was submitted that no sentence of imprisonment
in case of default of payment of compensation could have been
awarded. 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 (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 ofcompensation, 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)
::: Downloaded on – 02/07/2025 21:23:08 :::CIS
P a g e | 31“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 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, ifnecessary, 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 havean opportunity of paying the compensation, he must
be enabled to earn the money with which to do so. The
result is therefore an extremely light sentence ofimprisonment. 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
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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)
’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)
***
10. That apart, Section 431 of the Code has only
prescribed that any money (other than fine) payable
by virtue of 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)
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“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 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
r 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
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to whether a default sentence clause could be made in
respect of compensation payable under Section 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
r can only be 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 different footing. A person is
required to undergo imprisonment either because he
is unable to pay the amount of fine or refuse to pay
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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)
r “6. A distinction has to be drawn between a mode of
enforcing recovery on the one hand and effectingactual 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 canbe 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 allowancewho refuses to comply with the order without
sufficient cause, to obey the order and to make thepayment. 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 personordered 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 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::: Downloaded on – 02/07/2025 21:23:08 :::CIS
P a g e | 36for 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.
42. This position was reiterated in R. Mohan v. A.K. Vijaya
Kumar, (2012) 8 SCC 721: (2012) 4 SCC (Civ) 585: (2012) 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::: Downloaded on – 02/07/2025 21:23:08 :::CIS
P a g e | 37compensation 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 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.
43. Thus, there is no infirmity in imposing the sentence of
imprisonment in case of default in the payment of compensation.
44. No other point was urged.
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45. In view of the above, the present revision fails, and the
same is dismissed.
.
46. Records of the learned Courts below be sent back
forthwith, along with a copy of this judgment.
( Rakesh Kainthla )
Judge
02nd July, 2025
(ravinder)
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