ORDER : Cr. MP(M) No.2163 of 2019 Having carefully perused the averments contained in the application, which is duly supported by an affidavit, this Court is convinced and satisfied that delay in maintaining the accompanying petition is neither intentional nor deliberate, rather same has occurred on the account of the circumstances, which were completely beyond the control of the applicant/petitioner and as such, delay of 2 years, 9 months and 17 days in filing the petition, which in my considered view has been sufficiently explained, is condoned. The petition be registered. The application stands disposed of. CRIMINAL REVISION No. 207 of 2021 2. Instant Criminal Revision petition filed under Section 397(1) read with Section 401 of the Code of Criminal Procedure, is directed against the judgment, dated 19.97.2017, passed by learned Sessions Judge, Mandi, District Mandi, H.P., in Criminal Appeal 41 of 2016, affirming the judgment of conviction dated 12.08.2016 and order of sentence dated 19.08.2016, passed by learned Judicial Magistrate, 1st Class-IV, Mandi, District Mandi, H.P., in Complaint No.87-III/15/09, whereby learned trial Court while holding petitioner-accused guilty of having committed an offence punishable under Section 138 of the Negotiable Instruments Act, convicted and sentenced him to undergo simple imprisonment for 15 days and to pay fine of Rs.15,000/- to the complainant. 3. Precisely, the facts of the case as emerge from the record are that the respondent (for short ‘complainant’) filed a complaint under Section 138 of the Negotiable Instruments Act (for short ‘Act’) in the Court of learned Judicial Magistrate, 1st Class-IV, Mandi, District Mandi, H.P., alleging therein that accused with a view to discharge his legal liability towards complainant issued cheque (Ex. CW1/A), amounting to Rs.10,000/- on 4.8.2009 of account of No.0101070828 of Punjab National Bank, Branch Baggi, Tehsil Sadar, District Mandi, H.P. However, fact remains that aforesaid cheque on its presentation to the bank concerned was dishonoured on account of insufficient funds. Bank concerned returned the cheque vide memos Ex.CW1/B and Ex.CW1/C. After receipt of aforesaid memos, complainant issued legal notice dated 22.09.2009 Ex.CW1/D, whereby he called upon the accused to make the payment good within the period of 15 days after receipt of notice. Since accused failed to repay the amount within the time stipulated in the legal notice, complainant approached the competent court of law by way of complaint under Section 138 of the Act. 4. Since accused failed to repay the amount within the time stipulated in the legal notice, complainant approached the competent court of law by way of complaint under Section 138 of the Act. 4. Learned trial Court on the basis of the evidence adduced on record by the respective parties, held accused guilty of having committed the offence punishable under Section 138 of the Act, and accordingly convicted and sentenced him as per the description given hereinabove. 5. Being aggrieved and dissatisfied with the aforesaid judgment of conviction and order of sentence recorded by learned trial court, present petitioner-accused preferred an appeal in the Court of learned Sessions Judge, Mandi, which also came to be dismissed vide judgment dated 19.07.2017, as a consequence of which, judgment of conviction and order of sentence recorded by learned trial Court came to be upheld. In the aforesaid background, petitioner has approached this Court in the instant proceedings, praying therein for his acquittal after quashing and setting aside the impugned judgments and order passed by learned Courts below. 6. Having heard learned counsel representing the parties and perused the material available on record, this Court finds no force in the submission made by learned counsel for the petitioner-accused that learned courts below have failed to appreciate the evidence in its right perspective, rather this Court finds from the record that complainant has successfully proved on record that accused had issued cheque Ex.CW1/A, amounting to Rs. 10,000/- with a view to discharge his legal liability, but same was dishonoured on account of insufficient funds in the bank account of the accused. 7. Record clearly reveals that at no point of time accused denied factum with regard to issuance of cheque as well as his signature upon the same, rather his simple defence is that though he had issued cheque amounting to Rs.10,000/- in favour of the complainant, but since he had paid cheque amount in cash, complainant had undertaken to return back the same, but he instead of doing so, lodged a complaint against him under Section 138 of the Act. It is quite apparent from the aforesaid stand taken by the accused that cheque in question was issued by him that too with a view to discharge his legal liability and as such, there is presumption in favour of the complainant that cheque in question Ex.CW1/A, amounting to Rs.10,000/-, was issued by the petitioner for discharge of his lawful liability. 8. No doubt, aforesaid presumption is rebuttable and for that purpose petitioner-accused either can lead some positive evidence or can raise probable defence by referring to the evidence led on record by the complainant. In the case at hand, petitioner nowhere denied case of the complainant in his statement recorded under Section 313 Cr.P.C, rather he reiterated that cheque in question was issued by him, but same was to be returned by the complainant on account of the fact that he had received cheque amount in cash. Accused also examined his sister Amar Lata, who while deposing as DW-1 stated that on 4.8.2008, she received telephonic call of her brother Padam Dev that complainant Ashok Kumar would come to her. She stated that her brother asked her to pay Rs.9000/- to the complainant, who in lieu was to return the cheque. She deposed that though she paid Rs.9000/- to the complainant, but he did not return the cheque. DW-1 stated in her statement that complainant snatched amount from her. Aforesaid stand taken by DW-1, Amar Lata, who happens to be sister of accused, is totally contrary to the stand taken by the accused, who in his statement recorded under Section 313 Cr.P.C., claimed that he had returned the amount of Rs.10,000/- to the complainant, whereas DW-1 has taken all together different stand by stating that she on the askance of her brother Padam Dev returned Rs.9000/- to the complainant. There are contradictions and inconsistencies in the statement made by DW-1 and statement of accused recorded under Section 313 Cr.P.C. DW-1 deposed that complainant had snatched the money from her, but in cross-examination she admitted that she did not lodge any complaint to any quarter regarding snatching of money from her by the complainant. Such conduct on her part creates serious doubt with regard to correctness of the version put forth by her more particularly, in view of the statement of accused recorded under Section 313 Cr.P.C, wherein he stated that he returned Rs.10,000/- to the complainant. 9. Such conduct on her part creates serious doubt with regard to correctness of the version put forth by her more particularly, in view of the statement of accused recorded under Section 313 Cr.P.C, wherein he stated that he returned Rs.10,000/- to the complainant. 9. Though, there is no denial, if any, on the part of the accused that he had not issued any cheque but even otherwise careful perusal of evidence led on record by the complainant reveals that he successfully proved all the ingredients of Section 138 of the Act and as such, no illegality and infirmity can be said to have been committed by the learned Courts below while holding petitioner-accused guilty of having committing the offence punishable under Section 138 of the Act. 10. Section 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 the nature referred to in section 138 for the discharge, in whole or in part, or any debt or other liability. Similarly, Section 118 of the Act provides that unless contrary is proved , that the holder of the cheque received the cheque in discharge, in whole or in part, of a debt or liability. 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 Act. 11. The Hon’ble Apex Court in M/s Laxmi Dyechem V. State of Gujarat, 2013(1) RCR(Criminal) 260, 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. 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 the Act specifies 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. 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.” 12. Having carefully examined the evidence available on record, this Court sees no reason to interfere with the well reasoned judgments passed by the courts below, which otherwise appear to be based upon the correct appreciation of evidence and as such, same need to be upheld. 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. 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, 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.” 13. 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. 14. 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. 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. 15. Consequently, in view of the discussion made herein above as well as law laid down by the Hon’ble Apex Court, this Court sees no valid reason to interfere with the well reasoned finding recorded by the courts below, which otherwise, appear to be based upon proper appreciation of evidence available on record and as such, same are upheld. 16. Accordingly, the present revision petition is dismissed being devoid of any merit. The petitioner is directed to surrender himself before the learned trial Court forthwith to serve the sentence as awarded by the learned trial Court, if not already served. Pending applications, if any, also stand disposed of.