Bombay High Court
MAHADEV HARIBHAU SIRSHATversusKAMBLE KRISHNA DHULLAPPA AND ANR.
- Decided
- Disposal
- Dismissed
- Bench
- GAURI GODSE
Holding
The appellate court upheld the trial court’s acquittal, finding no sufficient evidence of a completed sale or enforceable liability to sustain a conviction under Section 138.
Summary
The original complainant sought leave to appeal an acquittal of the respondent under Section 138 of the Negotiable Instruments Act, alleging that two cheques issued for a property sale were dishonoured. The complainant claimed the sale agreement was complete and the cheques were issued to satisfy a legally enforceable liability, invoking the presumptions of Sections 119 and 139. The trial court found that the sale transaction was not completed, possession was not handed over, and there was no evidence that the cheque amounts were due, leading to an acquittal for lack of sufficient proof. On review, the appellate judge noted the absence of material establishing a completed sale or enforceable liability, affirming the trial court’s view. Consequently, the application for leave to appeal was dismissed, leaving the acquittal intact.
Issues considered
- Whether the acquittal under Section 138 of the Negotiable Instruments Act can be appealed in the absence of evidence establishing a legally enforceable liability.
- Whether the presumptions under Sections 119 and 139 of the Negotiable Instruments Act apply when the underlying transaction is not proven complete.
Legislation cited
- Negotiable Instruments Act — s. 119, 138, 139
Subjects
- Negotiable Instruments Act
- Section 138
- Cheque bounce
- Presumption
- Acquittal
- Appeal
- Evidence
- Sale agreement
Judgment
7-alp-501-2018.doc
varsha
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 501 OF 2018
(Leave to file appeal)
Mahadev Haribhau Sirshat … Applicant
vs.
Kamble Krishna Dhullappa and Anr … Respondents
Digitally
signed by
VARSHA
VARSHA VIJAY
VIJAY RAJGURU
RAJGURU Date:
Mr.Dhiraj B. Bansode for Applicant
2026.01.23
18:18:04
+0530
Mr. D.J. Haldankar, APP for the Respondent-State.
CORAM : GAURI GODSE, J.
DATED : 17th JANUARY 2026
ORDER:
1. This application is filed by the original complainant to seek
leave to file the appeal to challenge the order passed by the learned
Magistrate acquitting the respondent for the offence punishable
under Section 138 of the Negotiable Instruments Act.
2. According to the complainant, two cheques were issued and
both the cheques were dishonoured. Hence, two separate
complaints were filed. Both the complaints were decided by a
common judgment.
3. Learned counsel for the applicant submits that the respondent
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has admitted issuing both the cheques to the complainant. The
cheques were issued towards the transaction for the agreement for
the sale of the premises owned by the complainant. The transaction
was for sale in favour of one Bhagwat Namdeo Ubale. The accused
had issued the cheque for Bhagwat Ubale, as he was the brother-in-
law of Bhagwat Ubale. He submits that the copy of the agreement
was produced on record to support the complainant’s contention
that the cheques were issued towards the legally enforceable
liability in view of the terms and conditions of the agreement in
favour of Bhagwat Ubale. He submits that the oral evidence was led
by the complainant to support his contentions. Since, the transaction
was not in dispute and the issuance of cheques was also not in
dispute, the presumptions under Sections 119 and 139 was in
favour of the complainant. Since, the presumptions were not
rebutted by leading any evidence that the cheque amount was paid,
the accused was liable to be convicted for the offence. He therefore
seeks leave to file the appeal.
4. I have perused the evidence annexed to the application. In
the cross-examination of the complainant and by examining
Bhagwat Ubale in whose favour the alleged contract was executed,
the accused has raised a defence that the transaction was not
complete and the possession was not handed over. Hence, there is
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no question of depositing the cheques. Even in the cross-
examination of the witness examined by the accused, the witness
has maintained his contention that the transaction was not
complete. In the absence of evidence that the transaction was
complete and the cheque amount was due and payable towards the
contract as alleged, the trial court has acquitted the respondent for
want of sufficient evidence that the cheques were issued towards
any legally enforceable liability.
5. On perusal of the evidence, it appears that there is no
sufficient evidence to conclude that the transaction as alleged by the
complainant of the agreement executed with the Bhagwat Ubale
was complete. The accused examined the Bhagwat Ubale to
support his defence that the cheques were not issued towards any
legally enforceable liability as contended by the complainant. Thus,
in the absence of any sufficient material to support the
complainant’s contention that the sale transaction between him and
Bhagwat Ubale was complete and the cheque amount had become
due and payable, a serious doubt and suspicion is raised on the
contention and allegations made against the accused.
6. Considering the evidence on record, the view taken by the
trial court is a plausible view that could have been taken based on
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the evidence on record. There can be interference in an appeal
against acquittal if, after reappreciation of evidence, the only
conclusion that could be drawn is that the guilt of the accused is
proved beyond a reasonable doubt. In the present case, there is no
ground for granting leave to file an appeal against the order of
acquittal.
7. The Application is dismissed.
(GAURI GODSE, J.)
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