MURLIDHAR KASHINATH RANEversusSHAIKH MOHIMODDIN SHAIKH NABI

2026:BHC-AUG:39603


                                                                         CriAppeal-236-2006
                                                      -1-

                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     BENCH AT AURANGABAD

                                  CRIMINAL APPEAL NO.236 OF 2006

                 .     Murlidhar s/o Kashinath Rane
                       Age: 51 years, Occu.: Agri.,
                       R/o. Kumbharkheda, Taluka Raver,
                       District Jalgaon                                      .. Appellant


                              Versus


                 .     Shaikh Mohimoddin Shaikh Nabi
                       Age: 55 years, Occu.: Business,
                       R/o. Sakali, Tq. Yawal,
                       District Jalgaon                                      .. Respondent


                                                      …
                 Mr. D. S. Patil, Advocate h/f Mr. M. S. Deshmukh, Advocate for appellant.
                 Mr. V. S. Bedre, Advocate for respondent.
                                                      ...

                                                  CORAM :      ABHAY S. WAGHWASE, J.

                                                  Reserved on : 20.08.2026
                                                  Pronounced on : 01.09.2026

                 JUDGMENT :-


                 1.    In this appeal, there is challenge to the judgment and order of

                 acquittal dated 04.07.2005 passed by learned Judicial Magistrate First

                 Class, Raver in Summary Criminal Case No.800 of 2004, acquitting

                 the present respondent from offence punishable under Section 138 of
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the Negotiable Instruments Act.



2.    Present   appellant   instituted   complaint   against   present

respondent/accused on the premise that, accused, who is a fruit

vendor, had purchased Banana worth Rs.3,15,000/-. Towards

repayment of the amount, he issued a cheque dated 18.03.2004,

drawn on J.D.C.C. Bank. On its presentation, cheque was returned

dishonoured and, therefore, on receipt of the bank memo to that

extent, complainant issued legal notice calling upon accused to pay

the cheque amount, but the amount was not paid and, therefore,

proceedings under Section 138 of the Negotiable Instruments Act

were instituted against present respondent.


.     To substantiate his case, the complainant adduced his evidence

at Exhibit-12 and placed on record documentary evidence i.e. the

cheque in question at Exhibit-13, the bank memo, a copy of the legal

notice, etc.


.     The accused adduced his own evidence by way of an affidavit at

Exhibit-29 and also examined DW-2, whose evidence is at Exhibit-30.


.     The specific defence of the accused was that the amount of

Rs.15,000/- mentioned on the cheque had been altered to
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Rs.3,15,000/- by making an alteration in the cheque. He submitted

that he was not liable to pay an amount of Rs.3,15,000/- and that the

complainant had failed to establish that there was legally enforceable

debt or liability to the tune of Rs.3,15,000/-.


.     The evidence adduced by the complainant has been duly

appreciated by the learned Trial Court, and upon considering the

documentary evidence on record, the learned Trial Court, by its

judgment and order dated 04.07.2005, recorded a finding that the

complainant had failed to prove the charges against the accused

beyond reasonable doubt. Consequently, the accused came to be

acquitted of the said charges. Hence, the present appeal has been

preferred against the said judgment and order.


3.    Learned Counsel for the appellant would submit that there is no

dispute that the complainant and the respondent-accused were

dealing in the purchase and sale of bananas. It is submitted that the

accused had purchased bananas worth Rs.3,15,000/- from the

complainant and, towards discharge of the said liability, had issued

the cheque in question. However, the said cheque came to be

dishonoured upon presentation. Thereafter, the complainant issued a

statutory demand notice calling upon the accused to pay the cheque

amount, which the accused failed to comply with. It is, therefore,
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submitted that the necessary requirements for constituting an offence

under Section 138 of the Negotiable Instruments Act, were duly

established on the basis of the evidence on record.


4.    Learned Counsel for the appellant further pointed out that the

complainant had substantiated his case before the learned Trial Court

by leading documentary evidence i.e. cheque in question, bank memo,

legal notice and its reply etc. There is no denial of transaction

between the parties, nor there was any dispute regarding the issuance

of cheque. However, the learned Trial Court erred in acquitting the

accused.


5.    He further submitted that the learned Trial Court had noticed

that there was an alteration as regards the amount and that it was

made at the instance of the complainant, but there was no evidence in

that regard before the learned Trial Court. Consequently, learned

Counsel faulted the findings arrived at by the learned Trial Court and

prayed for allowing the appeal by setting aside the impugned

judgment and order.


6.    Learned Counsel for the respondent/accused would submit that

the complainant had failed to prove the alleged transaction and, more

particularly, the existence of a legally enforceable debt to the tune of
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                                 -5-

Rs.3,15,000/-. He submitted that only a cheque for Rs.15,000/- was

handed over to the complainant, but the complainant misused the

custody of the said cheque and caused alteration therein without the

consent or permission of the accused. Said cheque was misused for

drawing a larger amount. He pointed out that there was no

documentary evidence to show when exactly the transaction of sale

and purchase of bananas worth Rs.3,15,000/- had taken place. That,

even the cheque drawn was “self cheque”. Resultantly, he submitted

that, the complainant having failed to establish the existence of a

legally enforceable debt to the tune of Rs.3,15,000/-, coupled with

the alteration of the instrument as regards the amount mentioned

therein, the learned Trial Court committed no error in acquitting the

accused.


7.    Re-appreciated the entire oral and documentary evidence

adduced in the trial Court.


8.    After hearing both sides and on going through the evidence on

record, it appears that the complainant, in support of his case,

examined himself at Exhibit-12 and also relied upon documentary

evidence, including the cheque in question, bank memo, legal notice,

postal acknowledgment and reply thereto.
                                                    CriAppeal-236-2006
                                 -6-

.     As pointed out, though the complainant has come with the case

that there was a transaction of sale and purchase of bananas, there is

no documentary evidence on record regarding the said sale and

purchase of bananas. The complainant has also failed to demonstrate

when exactly the transaction was carried out and what quantity of

bananas was purchased or sold. In view of the specific defence of the

accused that he was not liable to pay an amount of Rs.3,15,000/- and

that the outstanding amount was only Rs.30,000/-, it was incumbent

upon the complainant to establish that there was a transaction of

purchase and sale of bananas by the accused worth Rs.3,15,000/-.

However, no evidence in this regard appears to have been adduced by

the complainant.


9.    It is a fair position that, firstly, it is incumbent upon the

complainant to establish that there was a legally enforceable debt,

and only upon proving the case to that extent, the presumption under

Sections 118 and 139 of the Negotiable Instruments Act would get

attracted. Here, the transaction of sale and purchase of bananas

worth Rs.3,15,000/- has not been proved by adducing any form of

evidence.


10.   Specific defence of accused is that in the month of July, 2003,

accused had given two cheques of Rs.15,000/- bearing cheque
                                                       CriAppeal-236-2006
                                  -7-

Nos.401409 and 401410 drawn on United Western Bank, and the

cheque was altered by complainant and put to use.


11.   On a bare look of Exhibit-13 it is seen that figure ‘3’ has been

inserted on the left side prior to figure ‘15000’.      Even the words

“Three Lakhs” appear to be apparently added and altered.


.     The Hon’ble Apex Court in the recent case of Rajasab Vs.

Hulagappa, [Criminal Appeal No.__of 2026 (arising out of SLP (Crl.)

No.17025/2025)], in paragraph No.7, observed as under :-


         “7.   When the alteration of the cheque is patently clear
         on the face of it, the Courts below ought not to have
         insisted on any further evidence in that regard. The
         material alteration of the cheque was manifest. We are,
         therefore, of the opinion that conviction of the appellant,
         Rajasab, on the ground that aforestated cheque was
         dishonoured, upon presentation, cannot be sustained.”


12.   Moreover, the cheque is drawn for “self” and apparently, the

contents of the cheque are in distinct handwriting. Therefore, it

appears that, there are material alterations to the cheque that too

without consent of accused. Complainant consequently has failed to

demonstrate that there was legally enforceable debt. Therefore, no

fault can be found in the judgment and order of acquittal. Hence, I
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                                  -8-

proceed to pass the following order :-


                               ORDER


            .      Criminal Appeal is hereby dismissed.



                                         [ABHAY S. WAGHWASE, J.]


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