KIRAN A. PARASWARversusM/S RAJASHREE ENTERPRISES THROUGH RAJASHREE R. SHELKE AND ANR

       Digitally
       signed by
       VINA
VINA   ARVIND
ARVIND KHADPE
KHADPE Date:
       2026.09.03
       18:39:54                                                          2.cri.alp.115.2021 @.doc
       +0530




                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     CRIMINAL APPELLATE JURISDICTION
                                  CRIMINAL APPLICATION (ALP) NO.115 OF 2021
                    Kiran A. Paraswar                             … Applicant
                          Versus
                    M/s. Rajashree Enterprises thr.
                    Rajashree R. Shelke and anr.                  … Respondents
                                                     ***
                    Mr. Prasad B. Kulkarni for the Applicant.
                    Mr. Mahendra M. Agavekar a/w Ms. Shraddha Chvan for Respondent
                    No.1.
                    Ms. Sharmila Kaushik, APP for the Respondent – State.
                                                     ***
                                                         CORAM : M.M. SATHAYE, J.
                                                          DATE     : 03 SEPTEMBER, 2026
                    P.C. :

                    1.       This Application is filed by the Complainant challenging the
                    order dated 24.09.2021, passed by the learned Additional Sessions
                    Judge, Pune in Criminal Appeal No.493 of2017, by which the appeal
                    filed by Respondent No.1 / original accused is allowed acquitting
                    Respondent no.1 from the offence punishable under Section 138 of
                    the Negotiable Instruments Act, 1881 (for shot, ‘the said Act’).

                    2.       The Applicant filed a complaint resulting in S.C.C. No.24487 of
                    2010 being filed. The case of the Applicant is that the parties had
                    good family relations. That in the month of May 2009, the
                    Respondent       No.   1   Accused   had   approached     the     Applicant,
                    demanding a hand loan for business, which was disbursed in the sum
                    of Rs.3,50,000/-. That for part repayment of the said amount, the
                    cheque in question of Rs.2,00,000/- dated 10.12.2009 was issued,
                    which was dishonoured for ‘insufficient funds’.


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3.     The Applicant examined himself as PW1. A bank employee was
examined as PW2, a postal department employee was examined as
PW3. Applicant’s wife Mrs. Smita is examined as PW4. Respondent
No.1 accused examined herself as DW1.

4.     After considering the evidence, the learned 25 th Judicial
Magistrate First Class, Pune by order dated 16.09.2017, convicted
Respondent No.1 under Section 138 of the Negotiable Instruments
Act, 1881, sentencing her to suffer simple imprisonment for six
months and to pay Rs.4 Lakhs as compensation.

5.     Respondent No.1 Accused filed the aforesaid Appeal in which
the impugned order is passed acquitting Respondent No.1.

6.     Learned Counsel for the Applicant submitted that Respondent
No.1 has not made out any probable defence. He submitted that story
of Respondent no.1 that the cheque book of the closed business was
with her son who was the friend of the Applicant Complainant who
seems to have obtained blank cheque and misused it, is unbelievable.
He submitted that this defence is not at all proved by Respondent
No.1. He submitted that the signature on the cheque and receipt of
the demand notice is not disputed and therefore there is presumption
in favour of the Applicant Complainant under Section 139 of the said
Act that the cheque was issued for discharge of a legal debt, which is
not rebutted. He submitted that the Appellate Court was not justified
in holding that the Applicant did not have financial capacity to
advance loan.

7.     On the other hand, the learned Counsel for Respondent No.1

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submitted that the presumption under Section 139 is sufficiently
rebutted from the evidence of the Complainant himself, in as much
as, the complainant has been found to be not in financial condition to
advance alleged loan. He submitted that the Appellate Court has
acquitted Respondent No.1 and leave cannot be granted as a matter
of right, unless required case is made out.

8.     Having heard the learned Counsel for the parties, and after
going through the impugned order and other record, as pointed out,
in my view, it is not necessary to grant leave to file appeal, for the
following reasons.

9.     It is settled position of law the presumption under Section 139
of the said Act is rebuttable and for that purpose, the Accused can
point out from the evidence led by the Complainant himself. In the
present case, the Accused has entered the witness box denying the
case of the Complainant.

10.    From the record, it is clear that it was specifically contended
that the Applicant Complainant did not have financial capacity to
advance the loan and as such, the cheque cannot be said to have
been given in discharge of legal debt. The Appellate Court has
considered the evidence of complainant PW1, who has admitted that
the Complaint as well as his affidavit does not mention the date and
time of the loan advancement or any details about demand and the
occasions on which such loan was advanced. Though the complainant
stated that he would produce the documentary evidence to reveal the
details, the same was not done. However, the complainant’s wife was


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examined. The Appellate Court has considered the evidence led by
the Complainant’s wife, who has stated that she was present when
the Accused demanded a hand loan. However, it is not the
Complainant’s case either in the complaint or in his testimony that
his wife was present at the time of the transaction of the hand loan
took place. Therefore it is rightly held as an improvement in the case.
It is an afterthought.

11.    The    Appellate   Court   considered   the   evidence         of        the
complainant’s wife PW4, about various withdrawal made from the
Bank, which was stated in the support of the case that the said
withdrawals were used for advancing the hand loan. The Appellate
Court found that the amount of withdrawal was not matching the
amount alleged to have been given as a hand loan.

12.    Based on such admissions and evidence, the Appellate Court
has held that the Applicant Complainant had not proved his financial
capacity to advance handloan. In this respect, the Appellate Court
considered the suggestion given by the Applicant Complainant to the
Respondent No.1 Accused that, ‘her son had handed over the cheque
to the Complainant by misusing it’. This is rightly held as change of
stand because the original case is that it was issued by the Accused
herself, for part-repayment of loan.

13.    Upon appreciation of evidence, the Appellate Court has come
to the conclusion that the alleged offence has not been proved
against the Respondent No.1 Accused.

14.      In the aforesaid facts and circumstances and for the reasons

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indicated above, no perversity is found in the impugned order. It is
not found necessary to scrutinize the case again in appeal. No case is
made out for grant of leave.

15.    Accordingly, leave-application is rejected. Since the leave to file
appeal is rejected, confirming the order of acquittal, the Respondent
No.1/Accused is at liberty to withdraw the amount deposited by her
in the concerned Sessions Court.




                                               (M.M. SATHAYE, J.)




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