Sandeep Sharma, J.

1. Instant criminal revision petition filed under S. 397 read with S.401 CrPC, lays challenge to judgment dated 27.7.2020 passed by learned Sessions Judge, Solan, Himachal Pradesh in Cr. Appeal No. 6-S/10 of 2020/2019, affirming judgment of conviction and order of sentence dated 10.5.2019/17.5.2019 passed by learned Additional Chief Judicial Magistrate, Kasauli, District Solan, Himachal Pradesh in criminal case No. 74/03 of 2018, having been filed by the respondent/complainant (hereinafter, ‘complainant’), whereby learned trial Court, while holding petitioner–accused (hereinafter, ‘accused’) guilty of having committed offence punishable under S.138 of the Negotiable Instruments Act (hereinafter, ‘Act’) convicted and sentenced him to undergo simple imprisonment for a period of six months and pay compensation of Rs.1,90,000/- to the complainant.

2. Precisely, the facts of the case, as emerge from the record, are that complainant instituted proceedings under S. 138 of the in the court of learned Additional Chief Judicial Magistrate, Kasauli, District Solan, Himachal Pradesh stating therein that accused had availed CC Limit/loan of Rs.1,50,000 on 1.10.2016 from the complainant. As per terms and conditions, accused had to return the aforesaid money alongwith interest @ 14% per annum subject to variation from time to time according to the guidelines of Reserve Bank of India. However, the fact remains that the accused defaulted in repayment. Since total sum of Rs. 1,75,853/- became due against the accused on 22.1.2018, accused, with a view to discharge his liability, issued cheque No. 006594, dated 22.1.2018, amounting to Rs.1,68,000/-, drawn on Central Bank of India Parwanoo in faour of the complainant. However, the fact remains that the aforesaid cheque, Ext. CW-1/C, on its presentation was dishonoured on account of insufficient funds in the account of the accused. Complainant sent statutory demand notice under S.138 of the, to the accused by registered post on his correct address calling upon the accused to make payment of the amount within 15 days, however, demand notice was received back by complainant unserved, with remarks “addressee not found.” Thereafter, said notice was delivered by hand to accused on 27.2.2018, but despite having received legal notice, accused failed to make the payment and as such, complainant was compelled to institute proceedings under S.138 of the.

3. Learned trial Court on the basis of evidence adduced by the complainant, held the accused guilty of having committed offence punishable under S.138 of the and convicted and sentenced him as per description given herein above. Being aggrieved and dissatisfied with the judgment of conviction and order of sentence recorded by learned trial Court, accused preferred an appeal in the court of learned Sessions Judge, Solan, Himachal Pradesh but the same was dismissed on 27.7.2020. In the aforesaid background, the accused has approached this court in the instant proceedings, praying therein for his acquittal after setting aside judgments of conviction and order of sentence recorded by the learned courts below.

4. Vide order dated 1.10.2020, this court suspended the substantive sentence imposed upon the accused by learned trial Court, subject to accused depositing 50% of the compensation amount and furnishing personal bonds in the sum of Rs.25,000/- within a period of six weeks. But the fact remains that order dated 1.10.2020, never came to be complied with. Repeatedly, this court came to be assured by the petitioner that he is ready and willing to make payment of compensation amount, as such this court adjourned the matter, umpteenth times, enabling the petitioner to settle the matter with the complainant. At one point of time, accused made a statement before this Court that he has deposited Rs.93,907/- in the bank account of the complainant, but on enquiry, said statement was found to be incorrect, as the said amount was deposited by the accused prior to passing of the judgment of conviction and order of sentence. Again, on 28.10.2022, learned counsel for the accused, on instructions, stated that a sum of Rs. 40,000/- has been deposited with complainant, but such statement was also found to be incorrect.

5. Today, during proceedings of case, learned counsel for the accused stated that since the accused is not coming forward to impart instructions to him and is not complying with the orders passed by this Court, this court may proceed to decide the petition on merit.

6. Having heard learned counsel for the parties and perused material available on record vis-à-vis judgment passed by learned Sessions Judge upholding judgment of conviction and order of sentence passed by learned trial Court, this court finds no force in the submission of Learned Counsel appearing for the accused that both the learned courts below have failed to appreciate the evidence adduced on record by the parties in its right perspective, rather, this court finds that the complainant has successfully proved on record that the accused, after having availed CC Limit/loan failed to repay the same and as such, issued cheque, Ext. CW-1/C, amounting to Rs.1,68,000/-, towards discharge of lawful liability however, on its presentation, the aforesaid cheque was dishonoured on account of insufficient funds in the account of the accused, vide return memos Exhibits CW-1/D and CW-1/E. Since despite having received legal notice, Exhibit CW-1/F, the accused failed to make the payment, complainant had no option but to institute proceedings under S.138 of the.

7. Learned trial Court, though afforded due opportunity to the accused to lead evidence in defence but he failed to avail the same. In his statement recorded under S.313 CrPC, though the accused denied issuance of cheque in question but nowhere disputed his signatures thereupon. Accused submitted before learned trial Court that the cheque in question was issued as security and same has been misused, however, such plea of accused never came to be substantiated by way of cogent and convincing evidence. Since there is no dispute with regard to issuance of cheque and signatures thereupon, it can be presumed that the same was issued by the accused in discharge of lawful liability, as such, presumption under Ss. 118 and 139 of the comes into play in favour of the complainant. True, it is that to rebut aforesaid presumption accused can always raise probable defence either by leading some positive evidence or by referring to the material, if any adduced on record by the complainant. But in the case at hand, accused has miserably failed to raise probable defence much less sufficient to rebut the presumption applicable in favour of the complainant under Section 118 and 139 of the.

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

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

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

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

9. CW-1, Savita Negi, Branch Manager of the complainant Bank, tendered in evidence her affidavit Ext. CW-1/A, wherein she stated about the case set up in the complaint. While tendering her evidence, CW-1 proved authorization to appear on behalf of the complainant, Ext. CW-1/B, Cheque Ext. CW-1/C, dishonour Memos Exts. CW-1/D and CW-1/E, demand notice Ext. CW-1/F, statement of account of the accused, Ext. CW-1/G, copy of identity form, Ext. CW-1/H, copy of loan application, Ext. CW-1/J, copy of sanction letter, Ext. CW-1/K, copy of DP Note, Ext. CW-1/L, copy of voucher, Ext. CW-1/M, copy of hypothecation agreement, Ext. CW-1/N, copy of agreement of guarantee, Ext. CW-1/O, copy of registered envelope, Ext. CW-1/P and postal receipt, Ext. CW-1/Q.

10. By placing aforesaid documents, CW-1 successfully proved on record that the accused in discharge of loan liability, issued cheque amounting to Rs. 1,68,000/-, but the same was dishonoured due to insufficient funds in his account. Aforesaid witness successfully proved on record by placing on record, application submitted by the accused for grant of CC Limit/Loan that the amount was disbursed in favour of the accused.

11. In her cross-examination, she stated that the loan was not sanctioned by her but denied the suggestion that the accused issued blank signed cheque. She also denied that the contents of cheque were filled in different inks. She further denied that the cheque was issued as security.

12. Though, in the case at hand, accused was afforded opportunity to lead evidence in defence, but failed to avail the same. In his statement recorded under S.313 CrPC, he admitted that CW-1 is Branch Manager of the complainant Bank and authorized to appear on its behalf. He also admitted that he has borrowed loan of Rs. 1,50,000/- from the complainant on 1.10.2016. He also admitted that he has issued cheque Ext. CW-1/C in favour of the complainant. He also admitted that the Ext. CW-1/C was dishonorued on 29.1.2018.

13. Since at no point of time, factum with regard to issuance of cheque and signatures thereupon ever came to be disputed by the accused, coupled with the fact that the complainant successfully proved on record that cheque was issued by the accused towards discharge of lawful liability, learned Courts below, rightly held the accused guilty of having committed offence punishable under 138 of the. At the cost of repetition it may be observed that though in the case at hand, accused attempted to set up a case that the cheque was issued as a security and has been misused, but such defence set up by the accused never came to be substantiated by way of cogent and convincing evidence.

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

15. Moreover, this Court has a very limited jurisdiction under Section 397 of the Cr.PC, to re-appreciate the evidence, especially, in view of the concurrent findings of fact and law recorded by the courts below. In this regard, reliance is placed upon the judgment passed by Hon’ble Apex Court in case “State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri” (1999) 2 Supreme Court Cases 452, [LQ/SC/1999/159] wherein it has been held as under:-

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

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

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

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