KAMALABAI KASHINATH PATIL L.RS. CHAITANYA KASHINATH PATILversusTULSABAI KALIDIN PARDESHI (MOCHI)

2026:BHC-AUG:42924


                                                                            CriApeal-431-2006
                                                      -1-

                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    BENCH AT AURANGABAD

                                   CRIMINAL APPEAL NO.431 OF 2006

                 Smt. Kamalabai Kashinath Patil
                 (Deceased) Proprietor of Kamal
                 Distributors,
                 Through her Legal heirs
                 Shri. Chaitanya Kashinath Patil
                 Age: 45 years, Occu.: Service,
                 R/o. “Kamal Niwas”, Tagor Nagar,
                 Jalgaon, Tq. And Dist. Jalgaon.                              .. Appellant

                       Versus

                 Sau. Tulsabai Kalidin Pardeshi (Mochi)
                 Age: Major, Occu.: Household,
                 R/o.10, Building No.67, Gendalal Mill,
                 Sureshdada Nagar, Jalgaon,
                 Tq. and Dist. Jalgaon.                                       .. Respondent

                                                   …
                 Mr. Swapnil S. Patil, Advocate for the appellant.
                 Mr. A. I. Deshmukh, Advocate for the respondent.
                                                    ...

                                                    CORAM :    ABHAY S. WAGHWASE, J.
                                                    Reserved on : 11.09.2026
                                                    Pronounced on : 22.09.2026

                 JUDGMENT :-

                 1.    Dissatisfied by the judgment and order of acquittal dated

                 10.02.2006 passed by the learned Judicial Magistrate First Class,

                 Jalgaon in Regular Criminal Case No.961 of 2003, by which present

                 respondent stood acquitted from charge under Section 138 of the

                 Negotiable     Instruments   Act    [for   short   “N.I.   Act”],   original
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complainant has preferred instant appeal.


2.    Before learned Trial Court, present appellant set up a case

alleging that accused purchased electronic item like T.V. on credit

worth Rs.13,990/- and towards repayment of the same, accused

issued cheque dated 11.09.2003. Original complainant (deceased)

presented the cheque for realization through the bank, but the said

cheque was returned dishonoured with remark “funds insufficient”.

Legal notice, as required, was dispatched, raising demand of cheque

amount, but as accused failed, proceedings under Section 138 of N.I.

Act were instituted.


.     Learned Trial Court appreciated the respective cases of

complainant as well as accused and vide judgment and order dated

10.02.2006, acquitted the accused. Hence, instant appeal by the

original complainant.


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

denial of issuance of cheque or signature over it. Therefore,

presumption available under Section 119 of the N.I. Act had come

into play. Legal liability was not denied or refuted by the accused, nor

was there any challenge to the case of the complainant in any manner

during the cross-examination. The testimony of the complainant
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remained intact. However, it is pointed out that learned Trial Court

acquitted the accused by taking into account a typographical mistake

in the date of legal notice. Learned Counsel emphasize that date of

demand notice was correctly mentioned in the complaint and affidavit

and even date was reflected over bank memo, but such documents are

not taken into account by the learned Trial Court.       It is further

pointed out that the learned Trial Court failed to consider and

appreciate the settled position of law. Therefore, he placed reliance

on the judgments of the Hon’ble Apex Court as well as this Court in

the cases of Anup s/o Niranjan Dodiya Vs. Shailendra s/o Narayanji

Vyas, [2021 DGLS (Bom.) 2069] and Pavan Kumar Ralli Vs.

Maninder Singh Narula, 2014 DGLS (SC) 663.


4.    Per contra, learned Counsel for the respondent would justify

the judgment and order of acquittal by submitting that there was

variance on the point of date in complainant’s evidence as well as

legal notice and being technical offence, it is his submission that

learned Trial Court rightly acquitted the accused.


5.    Re-appreciated the entire evidence. In short, the case of the

complainant, Kamlabai (deceased), was that she was the proprietor of

Kamal Distributors, an agency engaged in the sale of electronic items.

It was the case of the complainant that the accused had purchased a
                                                       CriApeal-431-2006
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television on credit and, towards repayment thereof, had issued a

cheque for Rs.13,990/-. However, upon presentation, the said cheque

was returned dishonoured.


6.      In support of above case, on behalf of original complainant, her

legal heir i.e. son tendered affidavit of evidence at Exhibit-16

reiterating the above case. Documents like cheque in question, legal

notice and bill Exhibit-37 were also tendered in support of above

case.


7.      It appears that, despite cross-examining the complainant, the

case to the extent of purchasing the T.V. on credit from the

complainant’s agency has not been seriously challenged. Nor is there

any challenge to the issuance of the cheque or the signature thereon,

or to the bill at Exhibit-37. Therefore, the presumptions under

Sections 118 and 139 of the N.I. Act do come into play. However,

these presumptions have to be sufficiently rebutted by the accused.


8.      Defence of accused in Trial Court is of denial of taking T.V. on

credit, but specific defence is set up that cheque tendered by way of

security for purchase of Flour Mill (Chakki) has been misused.

However, accused failed to rebut the presumption by adducing

anything concrete on record. The said defence has not been
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probabilized in any manner, as except suggestion, there is nothing.


9.    Here, it is noticed, as pointed out by learned Counsel for the

respondent, that the bank memo on record is dated 11.09.2003,

showing the remark “Funds Insufficient”. However, in the complaint,

it is averred that the demand notice was issued on 15.09.2002. Even a

copy of the said legal notice is placed on record at Exhibit-21.

However, in the affidavit of evidence, the demand for payment of the

cheque amount is stated to have been raised by issuing a legal notice

dated 15.09.2002. It is expected that, after receipt of the bank memo

regarding dishonour of cheque, the demand notice has to be issued

within the stipulated period. However, in the present case, there is

apparently a difference of almost one year between the dates

mentioned in the complaint and demand notice. Indeed, Section 138

of the N.I. Act is a technical offence and, therefore, all the statutory

ingredients are required to be fulfilled. Consequently, the case of the

complainant fails to attract the provisions of the N.I. Act.


10.   Perused the citations relied by learned Counsel for the

appellant. In those cases, there was typographical mistake, but here it

is not so and, therefore, said ruling does not come to the aid of

complainant.
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11.   Therefore, for above reasons, no fault can be found on the part

of the learned Trial Court in acquitting the accused. Hence, the

following order :-

                              ORDER


      .     Criminal Appeal stands dismissed.



                                       [ABHAY S. WAGHWASE, J.]



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