VIJAYKANT MOTILAL KOTHARIversusTHE STATE OF MAHARASHTRA

Shivgan                                      2-Apeal-1120-2011.doc




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CRIMINAL APPELLATE JURISDICTION
               CRIMINAL APPEAL NO. 1120 OF 2011


Mr. Vijaykant Motilal Kothari
Age: 65 yrs, Occ: Business
R/At:-6/C, Motibaug,
Pune-Satara Road,
Pune-411037                                         …Appellant
      Versus
1. The State of Maharashtra
2. Om Engineers and Builders
    Ekta Apartments, 47/22 Erandawane,
    Law College Road, Pune.4
3. Lalit Amrutlal Shah
    Age: adult, Occ: Business,
    R/at 15, Umi Kaushal Society,
    S.No.585, Bibewadi, Pune 37.
4. Rajendra Amrutlal Shah
    Age: adult, Occ: Business
5. Devendra Amrutal Shah
    Age: adult, Occ: Business
6. Amit Lalit Shah
    Age: adult, Occ: Business
7. Apul Lalit Shah
    Age: adult, Occ: Business
    4 to 6 R/at 15, Umi Kaushal Society
    S.No.585, Bibewadi, Pune 37                     …Respondents


Mr. Abhishek Pungliya, for the Appellant.
Ms. Poonam P. Bhosale, APP for the Respondent No.1-State.
Mr. Subhash Jha along with Siddharth Jha, Sumit Upadhyay
     i/b Law Global Advocates, for the Respondent Nos. 2 to
     7.


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            CORAM                           DR. NEELA GOKHALE, J.
            RESERVED ON:                    13th JANUARY 2026
            PRONOUNCED ON:                  28th JANUARY 2026

JUDGMENT:-


1.        This Appeal assails the Judgment and Order dated 31 st

January 2011 passed in Criminal Appeal No. 127 of 2008 by

the Additional Sessions Judge, Pune whereby the Accused

namely, Shri Lalit Amrutlal Shah, Rajendra Amrutlal Shah,

Devendra Amrutlal Shah, Amit Lalit Shah and Apul Lalit Shah

stand acquitted of the offences punishable under Section 138

of the Negotiable Instruments Act, 1881 (for short 'NI Act')

under Section 386(b)(i) of the Code of Criminal Procedure,

1973 (for short 'Cr.P.C.') The Trial Court namely, the Judicial

Magistrate, First Class (‘JMFC’), Court No.8 (Link), Pune in

S.C.C. No. 0420758 of 2006 had convicted the Accused in the

said offence.



2.        By order dated 19th December 2011, while admitting

the Appeal, this Court recorded its view that the impugned



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Judgment and Order required re-consideration. Hence, leave

to appeal was granted.



3.        The facts of the case, in brief, are as under: -



3.1       The Appellant is the Original Complainant. The

Respondent       No.1    is   the    State        of    Maharashtra.       The

Respondent Nos. 2 to 7 are the Original Accused, i.e., the

Respondent No.2 is a Partnership Firm and the Respondent

Nos. 3 to 7 are its partners.



3.2        As discerned from the complaint, it appears that in

July 2004, one Mr. Hirachand Raichand Pagaria took a hand

loan of Rs.56,50,000/- from the Complainant. Mr. Pagaria

agreed to repay the hand loan with interest. It is contended

that the Accused, being close friends of Mr. Pagaria,

undertook to satisfy the loan amount taken by Mr. Pagaria.

Hence, the Respondent No.3 herein (Original Accused No.2),

issued a cheque bearing No.327171 dated 31 st January 2006

for an amount of Rs.78,00,000/- drawn on Bank of Baroda,



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Gultekdi Branch, Pune in favour of the Original Complainant.

After the issuance of the cheque, Mr. Pagaria and the Accused,

by letter dated 20th January 2006, requested the Complainant

not to deposit the cheque until 5th February 2006.



3.3        Another request was made to the Complainant to not

deposit the cheque till 17th February 2006, as Mr. Pagaria was

yet arranging the amount. Ultimately, the cheque was

deposited in the Bank of Maharashtra, Khadki Branch, Pune,

and was dishonoured, with an intimation dated 25th February

2006 issued to the Complainant.



3.4       A legal notice ensued from the Complainant. However,

the said notice was not replied to by the Respondent No.2

herein (Original Accused No.1). Hence, the Complainant

made the complaint under Section 138 of the NI Act on 8 th

May 2006 before the Trial Court. Process was issued. The

accused appeared and denied the charges against them. The

Complainant examined himself and 3 others, namely, Vilas

Kashinath Shelke, a clerk working in the office of the Deputy



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Registrar of Partnership Firms; Smita Pangarkar, the Manager

of Bank of Baroda, Gultekdi Branch and Dilip Lunawat, a

person stated to witness the handing over of a cheque of

Rs.78,00,000/- by the Respondent No.3 to the Complainant.

The Respondent No.5 (Original Accused No.4) testified on

behalf of all the Accused. Statement under Section 313 of the

Cr.P.C. was recorded; arguments were heard, and the Trial

Court convicted all the accused for the offence punishable

under Section 138 of the NI Act by Judgment and Order

dated 1st March 2008.



4.          The Accused preferred an Appeal before the

Additional Sessions Court, Pune, against their conviction. By

Judgment and Order dated 31st January 2011, the Appeal

was allowed, and the judgment and order of the Trial Court

were set aside. It is this Judgment and Order, which is

impugned in the present Appeal.


5.        Before advertence to the rival submissions, it is

necessary to discuss the principles laid down by the Supreme



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Court governing the scope of interference by the High Courts

in an appeal against acquittal, assailing the finding of

acquittal of the accused by the Trial Court. The Supreme

Court in its decision in the matter of Rajesh Prasad v. State of

Bihar & Anr.1 held as below:-


          “29. After referring to a catena of judgments, this Court
          culled out the following general principles regarding the
          powers of the appellate court while dealing with an
          appeal against an order of acquittal in the following
          words: (Chandrappa case [Chandrappa v. State of
          Karnataka, (2007) 4 SCC 415]


             “42. From the above decisions, in our considered view,
             the following general principles regarding powers of
             the appellate court while dealing with an appeal
             against an order of acquittal emerge:


                 (1) An appellate court has full power to review, re-
                 appreciate and reconsider the evidence upon which
                 the order of acquittal is founded.


                 (2) The Criminal Procedure Code, 1973 puts no
                 limitation, restriction or condition on exercise of
                 such power and an appellate court on the evidence

1         (2022) 3 SCC 471




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          before it may reach its own conclusion, both on
          questions of fact and of law.


          (3) Various expressions, such as, “substantial and
          compelling reasons”, “good and sufficient grounds”,
          “very        strong        circumstances”,         “distorted
          conclusions”, “glaring mistakes”, etc. are not
          intended to curtail extensive powers of an appellate
          court in      an      appeal against acquittal.          Such
          phraseology are more in the nature of “flourishes of
          language” to emphasise the reluctance of an
          appellate court to interfere with acquittal than to
          curtail the power of the court to review the
          evidence and to come to its own conclusion.


          (4) An appellate court, however, must bear in mind
          that    in   case     of   acquittal,    there    is   double
          presumption in favour of the accused. Firstly, the
          presumption of innocence is available to him under
          the fundamental principle of criminal jurisprudence
          that every person shall be presumed to be innocent
          unless he is proved guilty by a competent court of
          law. Secondly, the accused having secured his
          acquittal, the presumption of his innocence is
          further reinforced, reaffirmed and strengthened by
          the trial court.




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                 (5) If two reasonable conclusions are possible on
                 the basis of the evidence on record, the appellate
                 court should not disturb the finding of acquittal
                 recorded by the trial court.”

6.         Further, in the case of H.D. Sundara & Ors. v. State of

Karnataka2 the Supreme Court summarized the principles

governing the exercise of appellate jurisdiction while dealing

with an appeal against acquittal under Section 378 of Cr.P.C.

as follows:

          “8. .…8.1. The acquittal of the accused further
          strengthens the presumption of innocence;

          8.2. The appellate court, while hearing an appeal against
          acquittal, is entitled to re appreciate the oral and
          documentary evidence;


          8.3. The appellate court, while deciding an appeal against
          acquittal, after reappreciating the evidence, is required to
          consider whether the view taken by the trial court is a
          possible view which could have been taken on the basis of
          the evidence on record;




2         (2023) 9 SCC 581




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          8.4. If the view taken is a possible view, the appellate
          court cannot overturn the order of acquittal on the
          ground that another view was also possible; and


          8.5. The appellate court can interfere with the order of
          acquittal only if it comes to a finding that the only
          conclusion which can be recorded on the basis of the
          evidence on record was that the guilt of the accused was
          proved beyond a reasonable doubt and no other
          conclusion was possible.”


7.         Thus, it is beyond the pale of doubt that the scope of

interference by an Appellate Court for reversing the judgment

of acquittal recorded by the Trial Court in favour of the

Accused has to be exercised within the four corners of the

following principles:-



          (a) That the judgment of acquittal suffers from patent
          perversity;


          (b) That the same is based on a misreading/omission
          to consider material evidence on record;




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          (c) That no two reasonable views are possible and
          only the view consistent with the guilt of the accused
          is possible from the evidence available on record.


8.         The Appellate Court, to interfere with the judgment

of acquittal, would have to record pertinent findings on the

above factors if it is inclined to reverse the judgment of

acquittal rendered by the Trial Court.



9.         In light of the above legal principles, I now proceed

to analyse the findings in the present case, leading to the

acquittal of the Accused. Two legal issues arise for my

consideration in the present matter. Firstly, whether in the

absence of any evidence of the cheque being issued in

discharge of a liability of a third party, the offence under

Section 138 of the NI Act can be held to have been

committed. Secondly, whether a partner/director can be

prosecuted in the absence of any specific averment in the

complaint regarding the involvement of the Accused in the

commission of an offence and whether a conviction can be




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maintained against such an Accused in the absence of any

evidence of his participation in the affairs of the Firm.



10.       Insofar as the first issue is concerned, I have gone

through the deposition of the witnesses. The Complainant has

examined himself and has deposed regarding the hand loan

taken by Mr. Pagaria. According to him, the Accused came

forward to undertake the responsibility of payment of the

hand loan. He has repeated that the Accused requested him

to not deposit the cheque till 5th February 2006. However, in

his cross-examination, he has admitted that he is unable to

specifically state which of the Accused was in charge of the

affairs of the Firm at the relevant time. Thus, the blanket

statement made by the Complainant in his chief-examination

regarding the Accused coming forward to accept the liability

of Mr. Pagaria is of no relevance, as he is not aware of the

specific role of any of the Accused in the offence.



11.       Similarly, none of the witnesses examined by the

Prosecution has been able to prove beyond a reasonable



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doubt that any of the Accused took over the liability of Mr.

Pagaria. There is neither any document nor any record of

such acceptance of liability. Save and except the bare

statement of the Complainant in his chief-examination in that

regard, the Complainant is unable to prove the same. In fact,

his answers in the cross-examination demolish his case.



12.       I have also gone through the decisions of the various

Courts, including the Supreme Court, as cited by both parties.

The findings of the Sessions Court that the Complainant

never had any financial relations with the Accused at any

time before the issuance of the cheque are correct and need

no interference.



13.       Furthermore, the Complainant is unable to explain

how the amount of the hand loan of Rs. 56,50,000/- taken by

Mr. Pagaria has risen to Rs.78,00,000/-, which is the amount

of the cheque dishonoured. There is no explanation regarding

the rate of interest to justify the increase in the amount, and

no attempt is even made by the Complainant to give any



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explanation in that regard. For this reason also, the assertion

of the Complainant that the cheque was issued by the

Accused against repayment of the hand loan taken by Mr.

Pagaria is far-fetched. There is no infirmity in the findings of

the Sessions Court that there was no privity of contract

between the Complainant and the Accused.


14.           Insofar as the second aspect of the matter is

concerned, save and except a bald averment in paragraph 1

of the complaint made before the JMFC, Pune that the

Original Accused Nos. 2 to 6 are responsible for the day-to-

day affairs and conduct of the business of the Accused No.1-

Firm, there is no specific averment in the complaint

explaining the role of any of the Accused in the partnership

firm. In its recent judgment in the matter of Kamalkishore

Shrigopal Taparia v. India Ener-Gen Private Limited & Anr. 3,

the Supreme Court, while discussing its earlier judgments,

has held that mere designation as a director is not sufficient;

specific role and responsibility must be established in the

3         2025 INSC 223




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complaint. In N.K. Wahi v. Shekhar Singh4, the Court in

paragraph 8 observed as under:

          “8. To launch a prosecution, therefore, against
          the alleged Directors there must be a specific
          allegation in the complaint as to the part played
          by them in the transaction. There should be clear
          and unambiguous allegation as to how the
          Directors are in-charge and responsible for the
          conduct of the business of the company. The
          description should be clear. It is true that precise
          words from the provisions of the Act need not be
          reproduced and the court can always come to a
          conclusion in facts of each case. But still, in the
          absence of any averment or specific evidence the
          net result would be that complaint would not be
          entertainable.”


15.           Upon perusal of the record and submissions of the

parties, it is evident that none of the Accused has any legal

debt or other liability towards the Original Complainant nor

is there any evidence to indicate as to which of the partners

was responsible for the day-to-day conduct of the business

involving taking over of the liablity of Mr. Pagaria.

4         (2007) 9 SCC 481




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16.            Considering the aforesaid discussion, in my view, the

impugned Judgment and Order of acquittal does not suffer

from any patent perversity and is not based on any

misreading/omission of the Sessions Court in considering the

material evidence on record. In these circumstances, I am not

inclined to reverse the Judgment of acquittal rendered by the

Sessions Court.



17.       The Appeal is thus, dismissed.


                                             (DR. NEELA GOKHALE, J)

            Digitally
            signed by
            SHAMBHAVI
  SHAMBHAVI NILESH
  NILESH    SHIVGAN
  SHIVGAN   Date:
            2026.01.28
            15:57:26
            +0530




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