ORDER : 1. Instant Criminal Revision petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure, is directed against the judgment, dated 3.4.2018 passed by learned Sessions Judge Sirmaur District at Nahan, H.P. in Criminal Appeal No. 86 Cr. A/10 of 2017, affirming the judgment of conviction and order of sentence dated 12.8.2017/12.10.2017, passed by learned Judicial Magistrate 1st Class, Rajgarh, District Sirmaur, H.P. in criminal complaint No. 73/3 of 2015, 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 a period of one year and pay compensation to the tune of Rs. 9,00,000/- to the complainant and in default of payment of compensation to further undergo simple imprisonment for 30 days. 2. Precisely, the facts of the case as emerge from the record are that respondent No. 2/complainant (for short ‘complainant’) filed a complaint under Section 138 of the Negotiable Instruments Act ( for short ‘Act’) in the competent court of law, alleging therein that on 24.10.2014, respondent/complainant lent sum of Rs. 8,00,000/- to the accused on his request, enabling him to pay money to those persons, who had filed 3 or 4 complaints against him under Section 138 of the Act. With a view to discharge his liability, accused issued post dated cheque Ext. CW2/B, amounting to Rs. 8,00,000/- in favour of the complainant drawn on H.P. State Co-operative Bank Limited, Habban, but fact remains that aforesaid cheque on its presentation came to be dishonoured vide memo dated 25-2-2015 Ex.CW1/C on account of insufficient funds in the account of the accused. Complainant after receipt of memo from the bank concerned, served accused with legal notice Ex.CW2/D, calling upon him to make the payment good within the stipulated time, but since accused failed to make the payment within the time stipulated in the notice, complainant was compelled to institute the complaint under Section 138 of the Act in the competent court of law. 3. 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. 4. 3. 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. 4. 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, Sirmaur at Nahan, which also came to be dismissed vide judgment dated 3.4.2018, 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. 5. Vide order dated 6.8.2018, this Court suspended the substantive sentence imposed by the court below subject to petitioner-accused depositing Rs. 2,00,000/- in the Registry of this Court and furnishing personal bond in the sum of Rs. 1,00,000/- with one in the like amount to the satisfaction of trial Court within a period of four weeks. However, fact remains that aforesaid order never came to be complied with despite repeated opportunities. To enable the petitioner-accused to deposit the amount of compensation, case at hand came to be adjourned on 10 dates. Finally, on 8.4.2021 learned counsel for the petitioner informed this Court that sum of Rs. 2,00,000/- stands paid directly to respondent No. 2/complainant by way of demand draft and parties are in process of settling the dispute amicably interse them and as such, this Court adjourned the matter and stayed the warrants of execution issued by the executing court below. After passing of order dated 8.4.2021, case at hand came to be repeatedly adjourned on 10 dates, enabling the petitioner-accused to make the payment of compensation. However, as of today, sum of Rs. 4,00,000/- out of total amount of Rs. 8,00,000/- awarded by the court below stands paid to the respondent No. 2/complainant. After passing of order dated 8.4.2021, case at hand came to be repeatedly adjourned on 10 dates, enabling the petitioner-accused to make the payment of compensation. However, as of today, sum of Rs. 4,00,000/- out of total amount of Rs. 8,00,000/- awarded by the court below stands paid to the respondent No. 2/complainant. On 8.4.2022, this court having taken note of the fact that the petitioner-accused is ready and willing to make the entire payment of compensation awarded by the court below, adjourned the matter for today’s’ date with the direction to the petitioner-accused to deposit the remaining amount within a period of six weeks, but neither aforesaid balance amount has been paid nor petitioner has come present in Court and as such, this Court has no option, but to decide the case at hand on the basis of the material already available on record. 6. Having heard learned counsel representing the parties and perused the material available on record, this Court finds it difficult to agree with the submission of learned counsel for the petitioner-accused that judgments passed by learned courts below are not based upon the proper appreciation of facts as well as evidence led on record, rather this court finds that both the courts below have very meticulously dealt with each and every aspect of the matter and there is no scope of interference, whatsoever in the present matter. 7. Interestingly in the case at hand, there is no denial, if any, on the part of the petitioner-accused with regard to issuance of cheque as well as signature thereupon, as a consequence of which, there is presumption in favour of the complainant as provided under Section 118 and 139 of the Act that cheque in question was issued in favour of complainant by accused for discharge of his lawful liability. No doubt, aforesaid presumption is rebuttable and could be rebutted by the accused by raising probable defence. Probable defence can be raised either by leading positive evidence or by referring to the documents/evidence led on record by the complainant. However, in the case at hand petitioner has not been able to raise probable defence and as such, no illegality can be said to have been committed by the courts below while holding petitioner-accused guilty of having committed the offence punishable under Section 138 of the Act. 8. However, in the case at hand petitioner has not been able to raise probable defence and as such, no illegality can be said to have been committed by the courts below while holding petitioner-accused guilty of having committed the offence punishable under Section 138 of the Act. 8. Interestingly, accused in his statement recorded under section 313 Cr.P.C. stated that he was well known to the complainant, but he denied that he had requested complainant to advance loan of Rs. 8,00,000/- to him. He also denied that complainant has advanced loan of Rs. 8,00,000/- to him on 24.10.2014 and he has executed the receipt regarding receipt(Ex.CW2/C) of such amount. Though, accused in his statement recorded under section 313 Cr.P.C. denied factum with regard to issuance of post dated cheque bearing dated 25.2.2015 for Rs. 8,00,000/- but he feigned his ignorance that cheque when presented for collection on 25.2.2015 and 22.4.2015 was dishonoured by the drawee bank for “exceeds arrangement. Interestingly, in the case at hand efforts came to be made on behalf of the accused to setup a case that cheque book containing 15 cheques was misplaced and to prove this fact he also examined police official, who admitted that report with regard to missing of cheque book was registered, but rapat (Ex.DW2/A) placed on record, nowhere contains details with regard to cheque allegedly misplaced by the accused. Interestingly, aforesaid defence setup by the accused while making statement under section 313 Cr.P.C. is totally contrary to the suggestion put to the complainant during his cross-examination, wherein it came to be put to the complainant that he had obtained cheques for insurance purpose. The aforesaid suggestion put to the complainant in his cross-examination itself establishes factum with regard to issuance of cheque by the accused. 9. Apart from above, accused has taken a defence that he had issued letter i.e. mark D-1 to the Manager of the bank concerned, requesting therein to stop the payment, but such fact never came to be proved in accordance with law by the accused, rather return memo Ex.CW1/F dated 22.4.2014 clearly reveals that cheque in question came to be dishonoured on account of insufficient funds in the account of the accused. 10. 10. In the case at hand, complainant while examining himself as CW-2 has fully corroborated the allegations as contained in the complaint by stating that accused is well known to him and he is an agriculturist and is also doing the business of flowers and his income is about Rs. 18 to Rs. 20 lacs per annum. He stated that accused was in dire need of money as many cases/complaints regarding dishonour of the cheques were pending against him in the Court. He deposed that on 19.10.2014 accused approached him and demanded Rs. 8 lacs as loan. However, he paid sum of Rs. 8 lac on 24.10.2014 to the accused. He further deposed that accused assured to return the said amount within four months and also issued a post dated cheque, Ext. CW2/B ,amounting to Rs. 8 lacs in his favour drawn at H.P. State Co-operative Bank, Habban. He deposed that cheque was filled in and signed by the accused and the accused has also executed a receipt, Ext. CW2/C regarding such payment. He also deposed that he deposited the cheque on 25-2-2015 for encashment with the drawee bank, but the same was returned as unpaid by the drawee bank on account of “exceeds arrangement” vide memo, Ext. CW1/C dated 25-2-2015 and thereafter he contacted the accused and told him about dishonouring of the cheque, who asked him not to take any legal action on account of dishonouring of the cheque and assured that cheque would be encashed after a period of 1½ months and on such assurance of the accused, he again presented the cheque for collection on 22-4-2015 with the drawee bank, but the same was again dishonoured by the drawee bank vide memo Ext. CW1/F dated 22-4-2015 on account of “exceeds arrangement.” He has further stated that on receipt of information from the bank regarding dishonouring of the cheque for the second time, he got legal notice, Ext. CW2/D issued to the accused through his Counsel on 27-4-2015 under registered cover, Ext. CW2/F vide postal receipt, Ext. CW2/E intimating therein factum to accused with regard to dishonouring of the cheque and also demanded payment of the cheque amount from the accused, which notice, the accused intentionally refused to receive and he also also failed to make payment of the cheque amount to him. 11. CW2/F vide postal receipt, Ext. CW2/E intimating therein factum to accused with regard to dishonouring of the cheque and also demanded payment of the cheque amount from the accused, which notice, the accused intentionally refused to receive and he also also failed to make payment of the cheque amount to him. 11. Cross-examination conducted upon this witness nowhere suggests that defence was able to extract something contrary to what this witness stated in his examination-in-chief. Interestingly, during his cross-examination, this witness clarified that accused has executed receipt, Ext. CW2/C on the same date on which cheque in question was handed over to him by the accused. He specifically stated that cheque, Ext. CW2/B was signed by the accused in his presence. It is denied by him that receipt, Ext. CW2/C is a forged document. He has further stated that he has financially helped about 15 or 20 persons so far and he has advanced loan to such persons who are in a position to return the same, regarding which, he also used to obtain receipts from such persons. He has denied that the accused has not taken any loan from him. It is also denied by him that he used to do the work of insurance and he has obtained the cheque in question from the accused on account of insurance, which has been subsequently misused by him. 12. Complainant also examined Arun Kumar (CW--1), Manager of H.P. State Co-operative Bank Habban, who admitted the factum with regard to deposition of cheque in the bank on 25-2-2015 for encashment, but the same was dishonoured on account of “exceeds arrangement” vide memo, Ext. CW1/C and was returned to the complainant vide letter, Ext. CW1/D. He deposed that on 22-4-2015 the cheque, Ext. CW1/A was again deposited in the bank for collection by the complainant, but it was again dishonoured on account of “exceeds arrangement” vide memo, Ext. CW1/F and was returned to the complainant vide letter, Ext. CW1/G. In his cross-examination, nothing contrary could be elicited from him. He admitted that letter, copy of which is mark D-1 dated 23-4-2013 bears the signatures of the then branch Manager Sh. D.D.Sharma in red circle “A.” He admitted that the cheques No. 5409966 and 5409967 were reported to have been lost and prayer was made to stop the payment of such cheques. He admitted that letter, copy of which is mark D-1 dated 23-4-2013 bears the signatures of the then branch Manager Sh. D.D.Sharma in red circle “A.” He admitted that the cheques No. 5409966 and 5409967 were reported to have been lost and prayer was made to stop the payment of such cheques. However, he clarified that in case any information is received from the customer regarding loss of cheque or any instruction is received from the customer regarding stop payment, then entry is made in the computer and while dishonouring the cheque, in such cases, the reason assigned is payment stopped by the drawer. However, in the case at hand, as has been taken note hereinabove, there is no such endorsement in the cheque returning memo, Ext. CW1/C and Ext. CW1/F. 13. The complainant has also examined Jai Raj Sharma (CW-2), the official of the Baghat Urban Co-operative Bank Solan to prove that he is having account in the said bank and certified copy of the statement of account is Ext. CW2/A. As per the statement of the account, complainant withdrawn a sum of Rs. 10 lacs from his account on 10.10.2014. In his cross-examination, this witness stated that the complainant is having FOD limit of Rs. 30 lacs. He has also stated that after withdrawal of Rs. 10 lacs from his account by the complainant, he has deposited a sum of Rs. 10 lacs in his account on 14-10-2014. 14. Complainant also examined Shashank (CW-4), official of PNB, Mall road, Solan to prove statement of his account, Ext. CW4/A. Perusal of statement of the account of the complainant Ex.CW4/A clearly establishes that complainant was financially sound and he has sufficient funds in his account with PNB, Solan. 15. Krishan Dutt, CW5, who is a Criminal Ahlmed in the Court of ld. JMIC, Rajgarh deposed that there were seven cases under Section 138 of the Act pending against the accused in the Court, out of which, four have been decided and three cases are pending adjudication in the Court, thereby corroborating/supporting the plea of the complainant that the accused was in dire need of money as some cases on account of dishonouring of cheques were pending against him in the Court. 16. 16. Leaving everything aside, it has come in the statement of the accused recorded under Section 313 Cr.P.C. that there are four complaints under Section 138 of the Act pending adjudication against him, whereas three complaints have already been decided. To the contrary, complainant by leading cogent and convincing evidence proved on record that cheque Ex. CW2/B was issued by the accused for discharge of his lawful liability. While inviting attention of this court to the cross-examination conducted upon the complainant, learned counsel for the accused argued that once complainant admitted factum with regard to issuance of cheque by the accused on three occasions qua one liability, cheque Ex.CW2/B could not have been considered to be issued for discharge of lawful liability by the court below. However, this Court is not impressed by the submission of learned counsel for the petitioner because there is no probable defence ever came to be raised on behalf of the accused that he did not issue this cheque for discharge of his lawful liability and this cheque did not contain his signatures. Apart from above, accused never set up a defence that sum of Rs. 8 lac was ever paid by him to the complainant. 17. Since, issuance of cheque as well as signature thereupon has been not denied by the accused, there is presumption in favour of the holder of the cheque as provided under Section 118 and 139 of the Act that cheque in question was issued in favour of complainant by accused for discharge of his lawful liability. No doubt, aforesaid presumption is rebuttable and could be rebutted by the accused by raising probable defence. Probable defence can be raised either by leading positive evidence or by referring to the documents/evidence led on record by the complainant. 18. The Hon’ble Apex Court in M/s Laxmi Dyechem vs. State of Gujarat, 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. 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, 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 138 can 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. 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.” 19. Having carefully scanned the entire evidence available on record, this Court is convinced and satisfied that complainant successfully proved on record by leading cogent and convincing evidence that cheque in question Ex.CW2/B was issued by accused towards discharge of his lawful liability and he has further successfully proved that cheque issued by the accused on its presentation to the bank concerned was returned on account of insufficient funds. Hence, it cannot be concluded that courts below have committed any illegality and infirmity while holding accused guilty of having committed offence punishable under Section 138 of the Act. Moreover, this Court has a very limited jurisdiction under Section 397 of the Cr.P.C. 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 SCC 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.” 20. Since after having carefully examined the evidence in the present case, this Court is unable to find any error of law as well as of 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. 21. Since after having carefully examined the evidence in the present case, this Court is unable to find any error of law as well as of 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. 21. True it is that the Hon’ble Apex Court in Krishnan and Another vs. Krishnaveni and Another, (1997) 4 SCC 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 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. 22. Consequently, the present revision petition is dismissed being devoid of any merit and judgments passed by learned courts below are upheld. 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. Interim direction, if any, stands vacated. Pending applications, if any, also stand disposed of.