Bombay High Court

VINODKUMAR KRISHNAMURTI PISEversusTHE STATE OF MAHARASHTRA AND ANR.

Decided: 8 October 2026
Disposal: Allowed

Holding

The appellate court held that the presumption under Section 139 applies, the trial court’s acquittal was perverse, and the accused is convicted under Section 138 of the Negotiable Instruments Act.

Summary

Vinodkumar K. Pise (appellant) advanced Rs.12.5 million to respondent No.2, a builder, through cash and a cheque, secured by promissory notes. Respondent later issued a cheque for the full amount which was dishonoured for insufficient funds, leading to a complaint under Section 138 of the Negotiable Instruments Act. The trial magistrate acquitted the accused, holding that the appellant had not proved his financial capacity and that the loan documents were forged, and dismissed the bank memo for lack of a Section 65B certificate. On appeal, the High Court held that the appellant’s admission of the cheque and the respondent’s failure to rebut the statutory presumption under Section 139 attracted the presumption of liability, and that the absence of a Section 65B certificate was not fatal as the issue was not raised earlier. Finding the trial court’s decision perverse, the Court set aside the acquittal, convicted the accused under Section 138, sentenced him to three months simple imprisonment, imposed a fine of Rs.25 million with Rs.20 million payable to the appellant as compensation, and stayed the order for four weeks to permit a petition to the Supreme Court.

Issues considered

The applicability of the presumption under Section 139 of the Negotiable Instruments Act when the accused does not contest the issuance of the cheque.
The admissibility of the bank return memo without a Section 65B certificate of electronic evidence.
Whether the trial court erred in acquitting the accused on the ground of lack of proof of the appellant’s financial capacity and alleged forgery of documents.
The scope of appellate review of an acquittal under criminal law.

Legislation cited

Indian Evidence Act, 1872 — s. 65B
Negotiable Instruments Act, 1881 — s. 118, 138, 139

Subjects

Section 138 NI Act
cheque bounce
presumption under Section 139
Section 65B certificate
criminal appeal
conviction
simple imprisonment
fine
compensation

Judgment

Digitally
signed by
DINESH
SADANAND
1-j-apeal-200-25.odt
DINESH
SADANAND SHERLA
SHERLA Date:
2026.10.10
15:21:30
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 200 OF 2025

Vinodkumar K. Pise …Appellant.
V/s.
The State of Maharashtra & Anr. ...Respondents.

…………..
Mr. Adwait Bhonde a/w. Ms Vilasini Balasubramanian and
Mr.Anurag Mishra for the Appellant.
Mr. V.N. Sagare, APP for the Respondent/State.
Mr. Sanjay Kulkarni for Respondent No.2.
…………..

CORAM : N.R. BORKAR, J.
DATE : 08.10.2026.

ORAL JUDGMENT :

1. This appeal takes exception to the judgment and order dated
9.8.2019 passed by the learned Metropolitan Magistrate, 7 th Court,
Dadar, Mumbai, in C.C. No. 1663/SS/2017.

2. The appellant herein had filed a complaint case against
respondent No.2 for the offence punishable under Section 138 of
the Negotiable Instruments Act, 1881. By the impugned judgment
and order, the learned Magistrate has acquitted respondent No.2
herein of the said offence.

3. The appellant-complainant and respondent No.2/accused
were known to each other. According to the appellant, respondent
No. 2 approached him with a request to provide financial

Dinesh S. Sherla 1/7
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assistance to the extent of Rs. 12,50,000/- for the purpose of
completion of his under-construction project of M/s. Jai Mata
Jivdani Builders at Kargil Nagar, Virar (E), District Thane. At that
time, respondent No. 2 represented that he would repay the said
amount within a period of 15 months to the appellant. In view of
the friendly relations between them on 15.9.2015, the appellant
gave him a sum of Rs.2,50,000/- in cash. Thereafter, on
14.10.2015, the appellant gave him a cheque of Rs.10,00,000/-.
According to the appellant, respondent No.2 executed Promissory
Notes dated 15.9.2015 and 14.10.2015 in respect of the said
amount. According to the appellant, towards the repayment of the
said amount respondent No. 2 issued a cheque dated 08.06.2017,
for an amount of Rs.12,50,000/-, drawn on Ajara Urban Co-
operative Bank Ltd., Ajara.

4. According to the appellant, he deposited the said cheque for
encashment through his account in Indian Overseas Bank,
however, the same was returned unpaid with the remark "Funds
Insufficient". Thereafter, he issued a statutory demand notice
dated 23.06.2017. According to the appellant, respondent No.2
replied to the said notice vide reply dated 17.07.2017 and
disputed the liability. Thus, the complaint under Section 138 of the
N.I. Act was filed.

5. I have heard the learned counsel appearing for the appellant
and the learned counsel appearing for the contesting respondent
No.2.

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6. The learned counsel for the appellant submits that the
learned trial Court by ignoring the oral as well as documentary
evidence on record erred in arriving at a finding that the appellant
failed to prove his financial capacity to advance the said amount.
It is submitted that the learned trial Court failed to appreciate that
the sum of Rs. 10,00,000/- was duly paid through cheque. It is
submitted that respondent No. 2 did not dispute the issuance of
the cheque or his signature thereon. It is submitted that in
absence of such challenge, the statutory presumptions under
Section 139 of the N.I. Act would attract in the present case.
Learned counsel for the appellant submits that the learned trial
Court thus erred in acquitting respondent No.2. The learned
counsel for the appellant has relied upon the decision of the
Hon’ble Supreme Court in Sanjabij Tari v. Kishore Borcar and
anr.1 to submit that once the execution of the cheque is admitted,
the presumptions under Section 118 and 139 of N.I. Act arise
against the accused, and the onus to rebut them lies on the
accused. It is submitted that respondent No.2 has not rebutted the
said presumptions.

7. On the other hand, the learned counsel appearing for
respondent No. 2 supports the impugned judgment and order of
acquittal. It is submitted that the appellant has not produced on
record any documents to prove his financial capacity to advance
the alleged amount of Rs.12,50,000/-. It is submitted that in
absence of such documents, the trial Court has rightly acquitted
the respondent No.2. It is submitted that according to the
1 2025 SCC OnLIne SC 2069

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appellant only one cheque for Rs.12,50,000/- was issued,
however, the loan agreement at Exhibit-14 relied upon by the
appellant in respect of his case falsifies the said claim.

8. Learned counsel for the respondent No.2 submits that no
Certificate under Section 65B of the Indian Evidence Act was
produced on record in respect of the bank memo evidencing
dishonour of the cheque. It is thus submitted that in absence of
such Certificate, the bank memo at Exhibit-16 cannot be relied
upon to prove that the cheque was presented for encashment and
the same was dishonoured for “funds insufficient”. In support of
the said submission, the learned counsel for the respondent No.2
has relied upon the decision of this Court in Vandana Pandey vs.
Abhilasha Pande2 .

9. Learned counsel for the respondent No.2 further submits
that in an appeal against acquittal, the appellate Court ought not
to interfere unless the learned trial Court's view is perverse or
based on an erroneous view of law. In support of the said
submission, learned counsel for respondent No.2 has placed
reliance upon the judgment of this Court in T.A. N. Moorthy vs.
C.K. Narayan & ors.3.

10. I have perused the evidence on record. The appellant in
support of his case that he had advanced an amount of
Rs.12,50,000/- to the respondent No.2, out of which an amount of

2 2018(4) Bom. C.r. (Cri.) 774
3 Criminal Appeal No.561 of 2018 decided on 2.1.2025

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Rs.2,50,000/- in cash and an amount of Rs. 10 Lakh through
cheque, has relied upon the Promissory Notes dated 15.9.2015
and 14.10.2015 at Exhibit - 12 and 13 and the Loan Agreement
dated 19.10.2015 at Exhibit–14. The trial Court has not accepted
the defense of the respondent No.2 in respect of the said
documents that they were not executed by the respondent No.2
and the same are forged and fabricated documents. The learned
trial Court has, however, acquitted respondent No.2 on the ground
that the appellant has not placed on record any documents in the
form of bank statement etc. to prove that he had the financial
capacity to pay the said amount. The learned trial Court has,
however, while arriving at the said finding, ignored the fact that
the amount of Rs. 10,00,000/- was paid through cheque.
Furtermore, respondent No. 2 has failed to show against which
transaction the said amount of Rs.10,00,000/- was received by
him from the appellant, if not in respect of the alleged transaction
in question.

11. The trial Court has further not accepted the case of the
respondent No.2, that cheque in question does not bear his
signature and it was not issued by him. In such circumstances,
presumption under Section 139 of the N.I. Act would attract in the
present case and it will have to be presumed that the cheque in
question was issued for the discharge of a debt or other legally
enforceable liability. Admittedly, respondent No.2 has not
examined himself to rebut the said presumption. Nothing is
elicited in the cross-examination of the appellant on the basis of

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which it can be said that respondent No.2 has rebutted the said
presumption.

12. The submission in respect of non production of Certificate
under Section 65B of the Evidence Act cannot be considered as
the same was not raised before the trial Court. Apart from it, no
objection was taken in that respect when the cheque return memo
at Exhibit16 was admitted in evidence. Furthermore, the cheque
at Exhibit-15 bears the stamp of the bank in relation to the
presentation of the cheque for encashment. The decision relied
upon by the learned counsel for respondent No. 2 in Vandana vs.
Abhilasha (supra) therefore would be of no assistance to
respondent No.2.

13. Considering the overall facts and circumstances, the
impugned judgment and order cannot be allowed to stand as the
same is perverse.

14. At this stage, the learned counsel for respondent No. 2
submits that respondent No. 2, who is present in the Court, is
aged about 69 years old. It is submitted that considering the said
fact, leniency be shown to him.

15. On the other hand, the learned counsel for the appellant
submits that respondent No.2/accused is a builder by profession.

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16. Considering the overall facts and circumstances of the case,
the following order is passed:
ORDER
a] The Appeal is allowed.
b] The impugned judgment and order is quashed and set
aside.

c] Respondent No.2 is hereby convicted for the offence
punishable under Section 138 of the Negotiable Instruments
Act and sentenced to suffer Simple Imprisonment (S.I.) for
three months and to pay a fine of Rs. 25,00,000/- (Rupees
Twenty-Five Lakhs), and in default of payment of fine, to
suffer Simple Imprisonment (S.I.) for three months.

d] Out of the fine amount, if deposited, an amount of
Rs.20,00,000/- (Rupees Twenty Lakhs) shall be paid to the
appellant towards compensation.

17. The Appeal is disposed of in the aforesaid terms.

18. At the request of the learned counsel for respondent No. 2, to
enable Respondent No. 2 to approach the Hon'ble Supreme Court
against the present judgment and order, the operation of the
present judgment and order is kept in abeyance for a period of
four weeks.

[N.R.BORKAR, J.]

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