ORDER : Instant Criminal Revision Petition filed under Section 397 read with Section 401 of Cr.P.C, lays challenge to judgment dated 07.10.2020, passed by learned Sessions Judge (Forest), Shimla, H.P., in Criminal Appeal No.41-R/10 of 2018, titled Sh. Prem Singh vs. Sh. Sanjeev Bhapta, affirming the judgment of conviction and order of sentence dated 14.11.2018, passed by learned Additional Chief Judicial Magistrate, Court No.1, Rohru, District Shimla, in Case No. 168-3 of 2018, whereby learned court below while holding the petitioner/accused (hereinafter referred to as ‘accused’) guilty of having committed offence punishable under Section 138 of Negotiable Instruments Act (hereinafter referred to as ‘Act’) convicted and sentenced him to undergo simple imprisonment for a period of one year and pay fine of Rs.2,50,000/- to the complainant in lieu of dishonoured cheques. 2. Precisely, the facts of the case, as emerge from the record are that respondent-complainant (hereinafter referred to as ‘complainant) instituted complaint under Section 138 of the Act in the Court of learned Additional Chief Judicial Magistrate, Court No.1, Rohru, District Shimla, alleging therein that during apple season of 2017, he had taken orchard of Nank Chand, son of late Sh. Chet Ram, on contract basis and he had supplied empty apple boxes to the accused and also packed the same after grading of apples. Complainant alleged that he packed 1400 apple boxes belonging to the accused @ Rs.155/- per box including charges of material as well as packaging. Complainant alleged that in addition to above, amount of Rs.4,000/- was spent for lifting material from Shallan to Mandharli. With a view to discharge his liability, accused issued cheque No. 045265, dated 05.01.2018, amounting to Rs.2,21000/- drawn on State Bank of India, Pujarli, however, fact remains that on presentation, aforesaid cheque was dishonoured on account of insufficient funds in the saving account of accused. Since despite having received statutory demand notice, accused failed to make the payment good, complainant had no option, but to file proceedings under Section 138 of the Act. 3. Learned trial court on the basis of evidence led on record by the respective parties, held accused guilty of having committed offence punishable under Section 138 of the Act and accordingly, convicted and sentenced him, as per description given hereinabove. 4. 3. Learned trial court on the basis of evidence led on record by the respective parties, held accused guilty of having committed offence punishable under Section 138 of the Act and accordingly, convicted and sentenced him, as per description given hereinabove. 4. Being aggrieved and dissatisfied with the aforesaid judgment of conviction and order of sentence recorded by court below, accused preferred an appeal in the Court of learned Sessions Judge (Forest), Shimla, H.P., which came to be dismissed vide judgment dated 07.10.2020. In the aforesaid background, accused has approached this Court in the instant proceedings, praying therein for his acquittal after setting aside the judgment of conviction and order of sentence recorded by courts below. 5. Vide order dated 10.2.2021, substantive sentence sentence imposed by court below, was suspended by this Court subject to petitioner’s depositing balance amount in the trial court, but fact remains that aforesaid order never came to be complied with. Perusal of the Court file reveals that repeatedly matter came to be adjourned at the request of learned counsel representing the petitioner enabling him to deposit the balance amount. 6. Today, learned counsel representing the petitioner submitted before this Court that despite repeated communication, petitioner is not coming forward to impart instructions to him and as such, this Court can proceed to decide the case on its own merit. 7. Having heard learned counsel representing the parties and perused the material available on record vis-a-vis reasoning assigned in the judgment laid challenge in the instant proceedings, this Court finds no force in the submission of learned counsel representing the petitioner that both the courts below have failed to appreciate the facts as well as evidence led on record by the respective parties in its right perspective, as a consequence of which, findings to the determent of petitioner/accused has come to the fore. Rather, careful perusal of judgment of conviction and order of sentence recorded by the court below and further upheld by learned Sessions Judge (Forest), Shimla, clearly reveals that complainant successfully proved on record that accused with a view to discharge his liability, issued cheque No.045265, dated 05.01.2018, Ext. CW-1/B, amounting to Rs.2,21,000/-, but same was dishonoured on account of insufficient funds in the saving bank account of accused, as is evident from Memo Ext.CW-1/C and Return Memo Ext. CW-1/D. Since, despite having received legal notice Ext. CW-1/B, amounting to Rs.2,21,000/-, but same was dishonoured on account of insufficient funds in the saving bank account of accused, as is evident from Memo Ext.CW-1/C and Return Memo Ext. CW-1/D. Since, despite having received legal notice Ext. CW-1/E, which was duly served upon the accused, as is evident from postal receipt Ext. CW-1/F and acknowledgement Ext. CW-1/G, accused failed to make the payment good within the time stipulated in legal notice/demand notice, complainant had no option, but to institute the proceedings under Section 138 of the Act. 8. Though, in the case at hand, accused was afforded an opportunity to lead defence evidence, but he failed to do so and in his statement recorded under Section 313 Cr.P.C, he denied the case of the prosecution in toto, but at no point of time, issuance of cheque as well as his signatures thereupon were ever disputed or refused by him. His specific stand before court below was that he had issued blank cheque as security, but the same was misused. Needless to say, there is a presumption in favour of holder of cheque, as has been provided under Sections 20, 118 and 139 of the Act. No doubt, presumption, as available under Sections 118 and 139 of the Act, is rebuttable, but for that purpose, accused was under obligation to raise probable defence either by leading positive evidence or referring to the documents placed on record by the complainant to prove the guilt of the accused. However, in the instant case, if the evidence led on record by respective parties is perused in its entirety, it cannot be said that accused was able to raise probable defence to rebut the presumption available in favour of holder of cheque, i.e. petitioner. 9. Respondent-complainant Sanjeev Bhapta deposed as CW-1 by way of filing affidavit Ext. CW-1/A, wherein he stated entire case, as was set up in the complaint, detail whereof has been already taken note of. He successfully proved on record cheque No.045265, dated 05.01.2018, Ext. CW-1/B, amounting to Rs.2,21,000/- as well as dishonoured memos, dated 01.02.2018 & 08.03.2018, Ext. CW-1/D & Ext. CW-1/C. 10. Evidence led on record by the complainant reveals that cheque in question was presented twice in the bank, but both times, same was returned on account of insufficient funds in the bank account of accused. Demand notice Ext. CW-1/E as well as postal received Ext. CW-1/D & Ext. CW-1/C. 10. Evidence led on record by the complainant reveals that cheque in question was presented twice in the bank, but both times, same was returned on account of insufficient funds in the bank account of accused. Demand notice Ext. CW-1/E as well as postal received Ext. CW-1/F and acknowledgement of delivery of demand notice Ext. CW-1/G, clearly reveal that complainant before instituting proceedings under Section 138 of the Act, afforded due opportunity of returning money to the accused, but he failed to avail that opportunity. In his cross-examination, complainant stated that the apple grading machine is in ownership of his father and he maintained record of his machine. He specifically denied suggestion put to him that accused has no liability to discharge towards him. 11. In his statement recorded under Section 313 Cr.P.C, accused while fairly admitting that complainant is running apple grading and packaging machine at Mandharli and during apple season of 2017, he had taken orchard of Nank Chand, son of late Sh. Chet Ram on contract basis, also admitted that he got packed apple boxes at grading and packaging machine of the complainant. He also stated that cheque Ext. CW-1/B was dishonoured on account of insufficient funds in his saving bank account by memos Ext.CW-1/C & CW-1/D. However feigning ignorance and denying rest of the incriminatory evidence led on record by the complainant, he raised defence that he has no detail of boxes, which were packed by the complainant and he had issued blank cheque. Since, there is no dispute that cheque in question was issued by accused in favour of the complainant, which bears his signatures, there is a presumption under Sections 118 and 139 of the Act that cheque was given by the accused for discharge of his lawful liability. 12. 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. 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 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. 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.” 13. 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. 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 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.” 14. 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. 15. True it is that the Hon’ble Apex Court in Krishnan and another Versus 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 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. 16. 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. 16. Consequently, in view of the detailed discussion made hereinabove, this Court finds no illegality and infirmity in the impugned judgment of conviction and order of sentence passed by learned trial Court and further upheld by learned Appellate Court and as such, same are upheld. 17. Accordingly, 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. Interim directions, if any, stand vacated. Pending application(s), if any, also stand disposed of.