BASANT vs VIRENDER SINGH

2026:HHC:37620
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
High Court of H.P.
Cr. Revision No. 354 of 2025
Reserved on: 31.08.2026
Date of Decision: 07.09.2026
Basant ...Petitioner
Versus
Virender Singh ...Respondent
Coram
Hon’ble Mr Justice Rakesh Kainthla , Judge.
1
Whether approved for reporting? Yes
For the Petitioner : Mr Abhay Gupta, Advocate, vice
Mr Sarthak Mehta, Advocate.
For the respondent/State : Mr N.S. Chandel, Senior Advocate,
with Ms Kanika Verma, Advocate.
Rakesh Kainthla, Judge
The present revision is directed against the judgment
dated 25.03.2025 passed by learned Sessions Judge (Forest), Shimla
(learned Appellate Court), vide which the judgment of conviction
dated 19.10.2022 and order of sentence dated 28.10.2022 passed by
learned Judicial Magistrate First Class, Chopal, District Shimla,
H.P. (learned Trial Court) were upheld. (The parties shall hereinafter
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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be referred to in the same manner as they were arrayed before the
High Court of H.P.
learned Trial Court for convenience.)
2. Briefly stated, the facts giving rise to the present appeal
are that the complainant filed a complaint against the accused for
the commission of an offence punishable under Section 138 of the
Negotiable Instruments Act (NI Act). It was asserted that the
accused purchased 300 cartons of apples from the complainant for
₹5,25,000/- @ ₹ 1,750/- per box. The accused paid ₹1,25,000/- in
cash, and he issued a cheque of ₹4,00,000/- for the payment of the
remaining amount. The complainant presented the cheque at his
bank, but it was dishonoured with an endorsement “funds
insufficient”. The complainant served a notice upon the accused,
which was not received undelivered by the complainant or his
counsel and is deemed to have been served. The accused failed to
pay the money to the complainant despite the deemed receipt of
the notice. Hence, the complaint was filed before the learned Trial
Court for taking action against the accused.
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
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punishable under Section 138 of the NI Act, to which he pleaded not
High Court of H.P.
guilty and claimed to be tried.
4. The complainant examined himself (CW1) to prove his
complaint.
5. The accused, in his statement recorded under Section
313 of the Code of Criminal Procedure (CrPC), denied the
complainant's case in its entirety. He claimed that a false case was
made against him. He did not produce any evidence in his defence.
6. The learned Trial Court held that the complainant's
version that the accused had issued a cheque in favour of the
complainant to pay the price of the apple carton purchased by him
was probable. The cheque carries with it a presumption of
consideration and that it was issued in discharge of the
debt/liability. The accused failed to rebut the presumption. The
cheque was dishonoured with endorsement “insufficient funds”. A
notice was issued to the accused, which was not received back and
is deemed to be served. The accused failed to repay the money
despite the deemed receipt of the notice. Hence, the learned Trial
Court convicted the accused of the commission of an offence
punishable under Section 138 of the NI Act and sentenced him to
undergo simple imprisonment for 1 year, a compensation of
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₹4,70,000/- and, in default of payment of compensation, to
High Court of H.P.
undergo simple imprisonment for 6 months.
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 Sessions Judge (Forest), Shimla, District
Shimla (learned Appellate Court). The learned Appellate Court
concurred with the findings recorded by the learned Trial Court
that issuance of the cheque by the accused was duly proved. The
cheque carried with it a presumption that it was issued for
consideration to discharge the debt/liability. The accused failed to
rebut this presumption. The cheque was dishonoured with
endorsement “insufficient funds”. The complainant issued a
notice to the accused, which was not received back and is deemed
to be served. Therefore, all the ingredients of commission of an
offence punishable under Section 138 of the NI Act were duly
satisfied. The learned Trial Court had imposed an adequate
sentence and no interference was required with it; hence, the
appeal was dismissed.
8. Being aggrieved by the judgment and order passed by
the learned Courts below, the accused has filed the present
revision, asserting that the learned Courts below erred in
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appreciating the evidence on record. The accused had already paid
High Court of H.P.
₹70,000/- to the complainant during the trial. The cheque was
issued for the construction of a road from Khidki to Dopti to
Pabhas. The complainant failed to prove that he has an orchard
with him. As per the complaint, his orchard was located at a height
of 5,000 feet, and the apple crop at 5,000 feet would not have
matured in July. Therefore, 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 Abhay Gupta, learned vice counsel
representing the petitioner and Mr N.S. Chandel, learned Senior
Advocate, assisted by Ms Kanika Verma, learned counsel for the
respondent/accused.
10. Mr Abhay Gupta, learned vice counsel representing the
petitioner, submitted that the learned Courts below proceeded on
the basis that the notice was deemed to be served. However, the
notice is deemed to be served after 30 days from the date of its
issuance, and the complaint was premature. The accused had paid
₹70,000/- to the complainant, and this amount was not deducted
by the complainant. Learned Courts below failed to appreciate
these aspects. Hence, he prayed that the present revision be
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allowed and the judgments and order passed by the learned Courts
High Court of H.P.
below be set aside.
11. Mr N.S. Chandel, learned Senior Advocate for the
respondent/accused, submitted that the plea of the complaint
being premature was not taken before the learned Courts below
and it is impermissible to take this plea before the Court. The
complainant is entitled to present a fresh complaint within 30
days. Therefore, he prayed that the present revision be dismissed.
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
Kuntegowda v. Thurubaiah, 2026 SCC OnLine SC 1485 that a
revisional court does not act as an appellate court and it can only
determine the correctness, legality and propriety of the findings,
sentence and order recorded by the lower court. It was observed:
“7. Before parting, we would like to accentuate the
revisional jurisdiction of the High Courts and the contours
and inherent limits while exercising powers as a revisional
authority. Section 397 of the Criminal Procedure Code, 1973
(now, Section 438 of Bharatiya Nagarik Suraksha Sanhita,
2023) encapsulates the power of High Courts and Sessions
Courts to examine the correctness, legality or propriety of
any order passed by an inferior criminal court. The said
Section is extracted as hereunder:
“438. Calling for records to exercise powers of
revision.— (1) The High Court or any Sessions Judge may
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call for and examine the record of any proceeding before
any inferior Criminal Court situate within its or his local
jurisdiction for the purpose of satisfying 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, and
may, when calling, for such record, direct that the
execution of any sentence or order be suspended, and if
the accused is in confinement that he be released on his
own bond or bail bond pending the examination of the
record.
High Court of H.P.
Explanation. —All Magistrates, whether Executive or
Judicial, and whether exercising original or appellate
jurisdiction, shall be deemed to be inferior to the Sessions
Judge for the purposes of this subsection and of section
439.
(2) The powers of revision conferred by sub-section
(1) shall not be exercised in relation to any interlocutory
order passed in any appeal, inquiry, trial or other
proceeding.
(3) If an application under this section has been made
by any person either to the High Court or to the Sessions
Judge, no further application by the same person shall be
entertained by the other of them.”
Discretion in the exercise of revisional jurisdiction should
be exercised within the four corners of this section whenever
there has been miscarriage of justice. However, while
exercising power under this section, the Court does not act
as an appellate Court and therefore, while considering the
legality, propriety or the correctness of a finding or a
conclusion, the revisional court does not and should not
dwell upon the facts and the evidence of the case as an
appellate Court. The court, in revision, considers the
material only to satisfy itself about the correctness, legality
and propriety of the findings, sentence and order recorded
by the lower court, and should refrain from substituting its
conclusion on an elaborate consideration of evidence, and
the findings of the lower courts should not be reversed
merely on the ground that an alternative view is possible on
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the facts of the case. In this case, such a position did not also
emanate from the evidence on record.
High Court of H.P.
7.1. This Court, in the State of Maharashtra v. Jagmohan Singh
Kuldip Singh Anand, (2004) 7 SCC 659: 2004 SCC (Cri) 2003,
observed that the High Court, in exercise of its revisional
jurisdiction, cannot embark upon an in-depth roving re-
examination of the oral evidence and medical evidence and
come to a conclusion contrary to the consistent one reached
by two courts below. In the facts of the present case, in the
impugned judgment, the High Court gravely erred in
upsetting the concurrent findings of conviction of the trial
court and the Appellate Court by substituting its own
conclusions and reasoning on the merits of the case and
thereby erred in setting aside the well-reasoned and correct
judgment and orders of the trial and appellate courts.
7.2. Upon perusal of the impugned judgment and order dated
06.10.2023, it is apparent that the High Court went into great
detail into each of the testimonies, documents and merits of
the case which could have been avoided, especially when the
subject matter had come under its revisional jurisdiction.
Instead, acting as an appellate Court, the High Court deemed
it fit to go into the merits of the case, something which is
generally impermissible unless a glaring contradiction is
apparent on the face of the record. In 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:
“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
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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 to
come to the conclusion that the High Court exceeded its
jurisdiction in interfering with the conviction of the
Respondent by reappreciating the oral evidence. …”
High Court of H.P.
7.3. The contours for exercise of revisional jurisdiction have
been well settled by the judicial dicta of this Court wherein
time and again it has been observed that the High Court shall
not interfere with the orders of the lower court unless:
i. The order or finding of the lower court is perverse,
grossly erroneous, glaringly unreasonable or wholly
unreliable or untenable in law.
ii. The lower court has passed the impugned order after
considering immaterial or irrelevant material or no
material at all.
iii. There is a non-consideration of any relevant material
or the judicial discretion has been exercised arbitrarily
or capriciously.
7.4. This Court, in Sanjabij Tari v. Kishore S. Borcar, 2025 INSC
1158, in similar facts and circumstances wherein the High
Court had reversed concurrent findings of conviction under
Section 138 of NI Act, while setting aside the impugned
order, observed as under:
“27. It is well settled that in exercise of revisional
jurisdiction, the High Court does not, in the absence of
perversity, upset concurrent factual findings. This Court
is of the view that it is not for the Revisional Court to
reanalyse and re-interpret the evidence on record. As
held by this Court in 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.
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28. Consequently, this Court is of the view that in the
absence of perversity, it was not open to the High Court in
the present case, in revisional jurisdiction, to upset the
concurrent findings of the Trial Court and the Sessions
Court.”
High Court of H.P.
7.5. In the facts of the present case, we find that the High
Court has failed to highlight any reason or material
satisfaction to the effect that there was any such glaring
contradiction or perversity apparent on the face of the
record so as to justify the exercise of the powers under
revisional jurisdiction and thereby erred in interfering with
the judgment and orders of the courts below. Therefore, the
present appeal has to be allowed by setting aside the
impugned order of the High Court. In view of the aforesaid
discussion, we are of the view that the High Court
committed an error in setting aside the order of conviction
in exercise of revisional jurisdiction. No sufficient ground
has been mentioned by the High Court in its judgment to
enable it to exercise its revisional jurisdiction for setting
aside the conviction.
14. The present revision has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
15. It was specifically asserted in para 10 of the complaint
that a notice was issued on 19.10.2016 at the correct address of the
accused, which was not received undelivered. Similar averment
was made in the proof affidavit (Ext.CW1/A) Learned Trial Court
also held in paragraphs 16 and 17 of its judgment that the notice
was issued on 19.10.2016 at the correct address and is deemed to be
served. Therefore, it is apparent that the learned Trial Court had
presumed the service of the notice.
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16. It was laid down by the Hon’ble Supreme Court in
High Court of H.P.
Subodh S. Salaskar v. Jayprakash M. Shah, (2008) 13 SCC 689: (2009) 3
SCC (Cri) 834: 2008 SCC OnLine SC 1174 that where a notice was sent
by registered post acknowledge due, the presumption of service of
notice can be raised within a reasonable time and 30 days must be
held to be sufficient for service of notice. It was observed at page
699:
“23. Thirty days ordinarily must be held to be sufficient for
service of notice. In fact, when the service of notice is sought
to be effected by speed post, ordinarily, the service takes
place within a few days. Even under Order 5 Rule 9(5) of the
Code of Civil Procedure, 1908, a summons is presumed to be
served if it does not come back within thirty days. In a
situation of this nature, there was no occasion for the Court
to hold that service of notice could not be effected within a
period of thirty days.”
17. The Jharkhand High Court held in Manoj Kumar Nag v.
State of Jharkhand, 2021 SCC OnLine Jhar 458 that when there is no
evidence regarding the service, the presumption regarding the
delivery of the notice can be made after thirty days of the issuance
of the notice. It was observed:
“22. This Court finds that there is no material on record
regarding the service of legal notice dated 03.03.2008
dispatched by registry on 04.03.2008 upon the petitioner,
and it is not the case of the complainant that the legal notice
was returned unserved or returned for any other reason.
This Court is also of the considered view that a presumption
regarding service of notice sent through registered cover can
be drawn only upon expiry of 30 days from the date of
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dispatch of notice, as has been held by the Hon'ble Supreme
Court in the judgment reported in (2008) 13 SCC 689 (Subodh
S. Salaskar v. Jayprakash M. Sah) . In the said judgment, the
notice was sent through speed post, and although the actual
date of service of notice was not known, the Complainant
proceeded on the basis that the same was served within a
reasonable period. It was held that if the presumption of
notice within the reasonable period is raised, the deemed
service at best can be taken to be 30 days from the date of its
issuance and the accused was required to make payment in
terms of the said notice within 15 days thereafter and the
complaint petition therefore could have been filed after
expiry of 15 days given to the accused for payment of money
after receipt of notice.”
High Court of H.P.
18. A similar view was taken in Anil Kumar Goel v. State of
U.P., 2021 SCC OnLine All 410, wherein it was observed:
“18. Coming to the facts of the present case, the notice
having been sent on 19.09.2012, if the presumption of
service of notice within a reasonable time is raised, shall be
deemed to have been served, at best, within a period of 30
days from the date of issuance thereof, i.e. 19.09.2012. The
applicant was required to make payment in terms of the said
notice within 15 days thereafter, i.e. on or about 3.11.2012.
The complaint, therefore, should have been filed by 03.12.12.
Admittedly, the complaint was filed on 19.11.2012, and
therefore, at this stage, it cannot be said that no proceedings
under Section 138 of the Act could be drawn against the
applicant.”
19. This position was reiterated in Damodar Mallick vs. State
of Jharkhand and Ors. (08.01.2024 - JHRHC): MANU/JH/0024/2024
wherein it was observed:
“9. It is crystal clear from plain reading of Section 138 of the
N.I. Act that the drawer of a cheque, if it fails to make the
payment of the amount of the cheque to the payee within 15
days of the receipt of the demand notice, then the
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cognisance of the offence can be taken by a learned Judicial
Magistrate for the offence punishable under Section 138 of
the N.I. Act. The question arises what if, there is no
document to suggest that the demand notice in writing
given by the complainant-opposite party No. 2 has been
served upon the drawer of the cheque, as has been held by
the Hon'ble Supreme Court of India in the case of the Subodh
S. Salaskar vs. Jayprakash M. Shah & Another reported in
MANU/SC/3298/2008 : (2008) 13 SCC 689 and which principle
of law has been reiterated by this Court in the case of Md.
Siraj vs. State of Jharkhand & Another passed in Cr.M.P. No.
1677 of 2022 dated 21st of November, 2023 ; that the law is well
settled that in case there is no material to suggest that such
demand notice was ever served upon drawer of the cheque or
any material that such demand notice has returned unserved
within the period of 30 days from the date of the issue of
such notice, such demand notice is deemed to have been
served on expiry of the period of 30 days from the date of
issue of such notice and the cognizance of the offence
punishable under Section 138 of the N.I. Act can be taken if
the drawer of the cheque fails to pay the amount as per the
cheque within 15 days of such deemed service of notice. So
considering the claim of the complainant that the notice was
sent on 15.05.2019 and the complaint was filed on 14.06.2019
without any material to suggest that during that period the
petitioner had received notice of demand and 15 days have
elapsed after receipt of such notice of demand on or before
14.06.2019, this Court has no hesitation in holding that the
complaint is pre-mature, hence, the cognizance is bad in
law.”
High Court of H.P.
20. It was submitted that the period of service has to be
taken has 7 days and not 30 days. Reliance was placed upon the
judgment of this Court in Rakesh Kumar versus Vishal Pathania in Cr.
Revision No. 674 of 2023 decided on 18.07.2026 . This submission
cannot be accepted. In Rakesh Kumar (supra), the registered letter
containing the notice was received undelivered. Postman had made
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an endorsement on 29.11.2013, that addressee was not found at
High Court of H.P.
home. However, the date of return was not legible and this Court
held that the accused must have received the notice through
registered A.D post within 7 days. In the present case the copy of
the registered letter has not been placed on record and this
judgment does not apply to the facts of the present case. Even
otherwise the Hon’ble Judge who had decided Rakesh Kumar
(supra) had earlier held in Rajeshwar Sabarwal & Ors. verus M/s
Royal Apple Merchants in Cr.MMO No. 10 of 2022 decided on
01.06.2016 that the submission made on behalf of the learned
Senior Counsel that in the absence of the proof of the delivery of
the notice, the notice is presumed to have been served after the
expiry of 30 days from the date of issuance of legal notice was
correct but could not be decided in the absence of the record.
Therefore, it cannot be said that the period of presumed service is
to be taken as 7 days and not 30 days.
21. In the present case, the notice was sent on 19.10.2016
and is deemed to be served on 18.11.2016. The complaint was filed
on 08.11.2016 before the expiry of 15 days available to the accused
to pay the amount. Thus, the complaint was premature. It was laid
down by the Hon’ble Supreme Court in Gajanand Burange v. Laxmi
Chand Goyal, 2022 SCC OnLine SC 1711, that no action can be taken
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on a premature complaint, and the same is liable to be dismissed. It
High Court of H.P.
was observed:
5. The issue which is raised in this appeal is no longer res
integra and is covered by a three-judge bench decision of
this Court in Yogendra Pratap Singh v. Savitri Pandey (2014)
10 SCC 713 . Two issues were formulated for decision before
the three-judge Bench, which were:
“1.1. (i) Can cognisance of an offence punishable under
Section 138 of the Negotiable Instruments Act, 1881 be
taken on the basis of a complaint filed before the expiry
of the period of 15 days stipulated in the notice required
to be served upon the drawer of the cheque in terms of
Section 138(c) of the Act aforementioned? And,
1.2. (ii) If the answer to Question 1 is in the negative, can
the complainant be permitted to present the complaint
again, notwithstanding the fact that the period of one
month stipulated under Section 142(b) for the filing of
such a complaint has expired?”
6. The first issue was resolved by paragraph 35 of the
judgment, which is extracted below:
“35. Can an offence under Section 138 of the NI Act be said
to have been committed when the period provided in
clause (c) of the proviso has not expired? Section 2(d) of
the Code defines “complaint. According to this definition,
a complaint means any allegation made orally or in
writing to a Magistrate with a view to taking action
against a person who has committed an offence.
Commission of an offence is a sine qua non for filing a
complaint and for taking cognisance of such offence. A
bare reading of the provision contained in clause (c) of
the proviso makes it clear that no complaint can be filed
for an offence under Section 138 of the NI Act unless the
period of 15 days has elapsed. Any complaint filed before
the expiry of 15 days from the date on which the notice
has been served on the drawer/accused is no complaint at
all in the eyes of the law. It is not a question of
prematurity of the complaint, where it is filed before the
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expiry of 15 days from the date on which notice has been
served on him; it is no complaint at all under the law. As a
matter of fact, Section 142 of the NI Act, inter alia, creates
a legal bar on the court from taking cognisance of an
offence under Section 138 except upon a written
complaint. Since a complaint filed under Section 138 of
the NI Act before the expiry of 15 days from the date on
which the notice has been served on the drawer/accused
is no complaint in the eyes of the law, obviously, no
cognisance of an offence can be taken on the basis of such
a complaint. Merely because at the time of taking
cognizance by the court, the period of 15 days has expired
from the date on which notice has been served on the
drawer/accused, the court is not clothed with the
jurisdiction to take cognizance of an offence under
Section 138 on a complaint filed before the expiry of 15
days from the date of receipt of notice by the drawer of
the cheque.”
High Court of H.P.
7. In the present case, while the notice was received by the
appellant on 8 November 2005, the complaint was filed
before the period of fifteen days was complete. The
complaint could have been filed only after 23 November
2005, but was filed on 22 November 2005. In view of the
legal bar which is created by Section 142 of the NI Act, as
explained in the three-judge Bench decision of this Court,
taking of cognisance by the Court was contrary to the law
and the complaint was not maintainable before the expiry of
the period of fifteen days from the date of its receipt by the
appellant.”
22. Therefore, the submission made on behalf of the
accused has to be accepted as correct that the complaint was
premature and no action could have been taken on it.
23. It was submitted that the plea regarding the complaint
being premature was not taken before learned Courts below and it
is impermissible to take this plea before this Court. This
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submission cannot be accepted. The complaint being premature or
High Court of H.P.
within limitation is a question of jurisdiction, and learned Courts
below failed to address themselves to this important question.
Since the question relates to jurisdiction, the same can be raised
during the revision petition.
24. In view of the above, the present revision is allowed, and
the judgment dated 19.10.2022 and order dated 28.10.2022 passed
by learned Judicial Magistrate First Class, Chopal, District Shimla,
H.P., as affirmed by learned Sessions Judge (Forests), Shimla vide
judgment dated 25.03.2025, is ordered to be set aside, and the
complaint is dismissed as premature.
25. A copy of the judgment, along with records of the
learned Courts below, be sent back forthwith.
(Rakesh Kainthla)
Judge
th
7 September, 2026
(Nikita)
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