SHAMDHAN S/O. RAMKISAN SINGHALversusVIDHYA W/O. DHANSINGH RAJPUT AND ANR

2026:BHC-AUG:43454


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                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    BENCH AT AURANGABAD

                                CRIMINAL APPEAL NO. 539 OF 2017

                 .     Shamdhan S/o. Ramkisan Singhal
                       Age: 31 years, Occu.: Business,
                       R/o. Plot No.35, New S.T.Colony,
                       N-2, Cidco, Aurangabad.                    ….Appellant
                                                            (Original complainant)

                                   Versus

                 1.    Smt.Vidhya W/o. Dhansingh Rajput
                       Age: 35 years, Occu.: Household,
                       R/o. Prasad Collection, Jaybhawani Nagar,
                       N-2, Cidco, Aurangabad.                   (Original Accused)

                 2.    The State of Maharashtra                  …..Respondents
                                                 …..
                 Mr.S.G.Ladda, Advocate for Appellant (through VC).
                 Ms.Smita S. Kulkarni and Mr. Kiran M. Nagarkar, Advocates for
                 Respondent No.1.
                 Mr.S.M.Ganachari, APP for Respondent No.2.
                                                 …..
                                        CORAM :         ABHAY S. WAGHWASE, J.
                                        Reserved on         : 10-09-2026
                                        Pronounced on       : 24-09-2026
                 JUDGMENT :

                 1.    In instant appeal, original complainant takes exception to

                 Judgment and order dated 12-01-2017 passed by learned Additional

                 Sessions Judge-4, Aurangabad in Criminal Appeal No.212 of 2011,

                 arising out of Judgment and order dated 25-07-2011 passed by

                 learned Judicial Magistrate First Class, Court No.8, Aurangabad in

                 SCC No.2491 of 2010.
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2.    Appellant/complainant's case in trial Court was that, he and

accused were acquainted since 20 years. Due to domestic difficulty in

business of husband of respondent No.1/accused, she put up a

request for hand loan to the tune of Rs.3,75,000/- to the complainant.

Appellant, at that point of time, had no money of his own, but he was

custodian of money received by his father-in-law in the backdrop of

sale transaction of land. Said amount was handed over to accused,

who assured to repay it within 15 days. However, she failed to do so.

According to complainant, after continuous persuasion for repayment

of hand loan, accused issued cheque bearing No.093626 of

Rs.3,75,000/- dated 23-12-2009.            The same was put up for

realization,   but   it   was   returned   dishonoured     with   remarks

“insufficient funds”. As required under law, complainant despatched

legal notice to the accused, but the envelop was returned as

"Unclaimed". Ultimately, appellant filed proceedings under Section

138 of the Negotiable Instruments Act (N.I. Act) before the Court of

learned Judicial Magistrate First Class (JMFC), who appreciated the

oral and documentary evidence and rendered conviction vide above

Judgment and order dated 25-07-2011.

      Respondent No.1/Accused challenged the said judgment and

order before the First Appellate Court i.e. learned Additional Sessions

Judge-4, Aurangabad, vide above referred criminal appeal and the
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same came to be allowed.         Hence, instant appeal by the original

complainant.


3.    Record shows that, the learned trial Court i.e. Court of JMFC

accepted the complainant’s case as proved on the ground that

complainant substantiated extension of hand loan and issuance of

cheque. By applying presumption available under Section 139 of the

N.I. Act, complainant’s case was accepted, as accused, according to

said Court, failed to rebut the said presumption. Learned trial Court

rejected the defence set up by accused about complainant stealing the

cheque and misusing it. For above reasons, conviction was recorded

for offence under Section 138 of the N.I. Act and accused being a

lady, learned trial Court directed sentence by way of fine and in

default   to   suffer   simple   imprisonment   and   to   further    pay

compensation.


4.    In appeal by accused/respondent no.1, learned First Appellate

Court recorded a finding that complainant failed to demonstrate and

substantiate extension of hand loan and there being no evidence of

whatsoever nature regarding advancement of hand loan.                While

recording such finding, learned First Appellate Court also tested

evidence of CW2 father-in-law of complainant, who stood by his son-
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in-law on the point of extension of hand loan to accused in his

presence. It was a specific finding of the learned First Appellate Court

that complainant’s witness CW2 failed to depose about issuance of

cheque in his presence and moreover, admitted that he was deposing

falsely. Learned First Appellate Court also recorded a finding that

cheque in question was not drawn on the bank account maintained by

accused and lastly, legal notice Exhibit 26 did not contain specific text

of demand on account of dishonour and therefore, notice was held to

be not valid.


5.    Both learned counsel for appellant/complainant as well as

learned counsel for respondent No.1/accused heard extensively.


6.    Learned counsel for appellant would point out that, there is no

dispute about long standing relations and acquaintance with accused.

That, complainant was possessing money received by his father-in-law

after selling land and with consent of and in presence of such father-

in-law, demand of accused was complied. That, evidence of CW1

complainant found support from CW2 Govind. That, their evidence in

cross-examination had remained intact and therefore, it is his

submission that complainant has proved borrowing of hand loan by

accused beyond reasonable doubt and also receiving it by assuring to
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repay it but she failed to do so. Learned counsel pointed out that

after the cheque was put up for realization, it was returned

dishonoured.    That time complainant realized mischief played by

accused in handing over cheque of Prerana Bachat Gat of which she

was an office bearer. However, liability is not denied as cheque was

signed and issued by accused towards discharge of said liability.

That, legal notice, as required under law, was also despatched and it

was refused to be accepted and therefore, learned JMFC has rightly

held receipt of notice to be valid. Hence, all essential ingredients for

attracting offence under Section 138 of the N.I.Act were very much

available and therefore, learned trial Court rightly applied the law

and convicted the accused. However, according to him, learned First

Appellate Court did not comprehend the complainant's evidence in its

proper perspective. That, there was no need for interference in the

well reasoned and sound judgment.        That, learned First Appellate

Court also failed to consider and apply the settled law on the point of

presumption available under the N.I.Act and failure of accused to

rebut the same. According to him, there was no denial of issuance of

cheque or signature over it and therefore, presumption available

under the law automatically gets attracted.        In support of such

submission, he seeks reliance on the judgment of the Hon’ble Apex

Court in the case of Rangappa v. Sri Mohan, [(2010) INSC 289] .
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Consequently, he urges to set aside the impugned Judgment and

order passed by the learned First Appellate Court and to restore the

Judgment and order of the learned trial Court.

      In support of his submissions, learned counsel for appellant also

relied on the Judgments of the Hon’ble Apex Court in the cases of

Dhanasingh Prabhu v. Chandrasekar and Another, (2025) 10 SCC 96,

Ashok Singh v. State of Uttar Pradesh and Another, 2025 SCC Online

SC 706.    He also relied on decision of this Court in case of

Tarmahomed Haji Abdul Rehman v. Tyeb Ebrahim Bharamchari,

1948 SCC OnLine Bom.66.



7.    Learned counsel for respondent No.1/original accused would

point out that, there was no hand loan. That, cheque of accused was

stolen and misused.    That, complainant failed to establish legally

enforceable debt and moreover, when the cheque in question was of

Bachat Gat with which there was no transaction and the said cheque

being misused, learned First Appellate Court rightly acquitted the

accused.   She pointed out that, there was no whole hearted

corroboration by witness CW2 and he had not deposed about accused

issuing any cheque in his presence. She would emphasize that even

there is incomplete demand notice which is also silent on the point of

demand.    Resultantly, she justifies the Judgment and order of
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acquittal passed by learned First Appellate Court and prays to dismiss

appeal for want of merits.

      To substantiate her contentions, learned counsel for respondent

No.1 relied on the Judgments of the Hon’ble Apex Court in the cases

of Rajesh Prasad v. State of Bihar and Another, (2022) 3 SCC 471;

H.D.Sundara and Others v. State of Karnataka, (2023) 9 SCC 581 ;

Reverend Mother Marykutty v. Reni C.Kottaram and Another, (2013)

1 SCC 327, Krishna Janardhan Bhat v. Dattatraya G.Hegde, (2008) 4

SCC 54; Vijay v. Laxman and Another, 2013 SCC OnLine SC 122.

      She also relied on the Judgments of this Court in the cases of

Mr.Vijaykant Motilal Kothari v. The State of Maharashtra and Others,

(Criminal Appeal No.1120 of 2011 dated 28-01-2026) ;            Vinay

Parulekar v. Pramod Meshram, 2007 SCC OnLine Bom 1077; Mohd.

Yakub Saudagar v. The State of Maharashtra and Others (Criminal

Revision Application (St.) No.57 of 2017 dated 19-08-2026), Sanjay

Mishra v. Kanishka Kapoor @ Nikki and Another; 2009(4) Mah.L.J.

155; Mrs.Rosa Maria Fernandes v. Nauso N.Kepkar, 2010(2) Mah.L.J.

(Cri) 654;     Punjabrao Bhagwanrao Ghuge v. Rajkumar s/o.

Kamalkishor Agrawal, 2010 (2) Mah. L.J. (Cri) 654;         Shriniwas

Ramdas Siwerwat v. Shantaram Pandurang Deotale, 2011 SCC

OnLine Bom 858.
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8.     Each of the learned counsel has sought reliance on above

mentioned numerous precedents, but the same being on settled law,

there is no dispute to that extent.


9.    Being appeal, entire oral and documentary evidence is visited,

re-appreciated and re-analyzed.

      Before the trial Court, complainant CW1, apart from his own

evidence at Exhibit 23, seems to have adduced evidence of CW2

Govind, his father-in-law at Exhibit 39 and sought reliance on

documentary evidence like cheque in question (Exhibit 24), bank

memo (Exhibit 25), copy of legal notice (Exhibit 26) and postal

envelop (Exhibit 27).

      While setting up resistance to the above case of complainant,

accused adduced evidence of DW1 Balaji, Bank official of Adarsha

Mahila Nagari Sahakari Bank at Exhibit 52, DW2 Sangita, her own

sister at Exhibit 54, her husband DW3 Dhansingh at Exhibit 55 and

her son DW4 Pravin at Exhibit 56.


10.   It seems that complainant came with a case that, due to 20

years long acquaintance with accused and as both belong to same

community, accused requested hand loan due to domestic issues and

for business of her husband. Complainant’s case is that coincidentally,
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at that time, though he did not have his own amount, Rs.3,75,000/-

received by his father-in-law due to sale transaction of land, which

were kept with him, were handed over as a hand loan to accused and

in spite of assurance to repay within 15 days, accused failed and on

persuasion, issued a cheque in question (Exhibit 24), which was on

its presentation, stood dishonoured and inspite of legal notice being

despatched, the same was refused to be accepted and therefore, there

is good service and hence, the complaint for offence under Section

138 of the N.I.Act.

      When above was the case of complainant, obviously as required

under law, complainant has to establish existence of transaction of

hand loan beyond reasonable doubt.       If issuance of cheque and

transaction are demonstrated, presumption as available under

Sections 118 and 139 of the N.I.Act automatically comes into play

and then thereafter, it becomes incumbent on accused to rebut the

said presumption.     This is fairly the legal framework and settled

position.


11.   On re-appreciating evidence of CW1 complainant and his

witness CW2 his father-in-law, it is emerging that in support of his

pleading that accused approached him and sought hand loan, except

bare words, there is no other distinct evidence or any writing work in
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that regard. In those days i.e. when transaction had allegedly taken

place, an amount of Rs.3,75,000/- was definitely a huge amount and

therefore, it required substantial evidence about extension of hand

loan.   There is no acknowledgment of receipt of Rs.3,75,000/- in

black and white nor any promissory note seems to have been got

drawn by complainant from accused. Attempt is made to support the

above contention of extension of hand loan by adducing evidence of

CW2, who is none other than father-in-law of complainant. However,

on visiting his evidence at Exhibit 39, more particularly, his

examination-in-chief, it is noticed that though he speaks of receiving

sale consideration and keeping it in possession of his son-in-law i.e.

complainant till his proposed next transaction was to be completed

and his son-in-law calling him on 02-10-2008 and in his presence

Rs.3,75,000/- were given to accused by his son-in-law, as pointed out,

his further examination-in-chief is conspicuously silent on the point of

accused in turn issuing a cheque in question (Exhibit 24) dated

23-12-2009.    It was expected of this witness to lend support to

complainant in that regard also. However, he has not deposed in his

written affidavit at Exhibit 39 also to that extent. Even though in his

cross-examination, he has denied that he did not maintain his own

bank account, he has merely denied that he never maintained bank

account of his own. However, in cross-examination, it seems that he
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was confronted with 7/12 extract of Gut No.231 wherein entry of

borrowing Rs.50,000/- was reflected.     Hence, this witness has not

fully supported complainant.

      It is also pointed out by learned counsel for respondent No.1

that, mere xerox copy of the sale deed is placed on record to

substantiate sale transaction of land of CW2, which allegedly fetched

him money, however, the figure reflected therein does no match with

the quantum of amount i.e. in sale deed and rather sale transaction is

shown to be concluded at Rs.1,85,000/-, whereas hand loan is of

Rs.3,75,000/-. Therefore, there is no explanation regarding raising

further amount by complainant or contributing remaining amount as

his own share.     Resultantly, as submitted by learned counsel for

respondent No.1, there is no convincing evidence on behalf of

complainant in support of hand loan to the tune of Rs.3,75,000/-,

which was allegedly given to accused. Even learned trial Court failed

to appreciate this aspect which the First Appellate Court seems to

have dealt with.


12.   In the considered opinion of this Court, the salient feature of

this case is that, cheque in question (Exhibit 24) is of Adarsha Mahila

Nagari Sahakari Bank Limited and it is of the account of Prerana

Bachat Gat of which accused is said to be an office bearer in the
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capacity of President. Here, admitted position and very complainant’s

case itself is that due to cordial and long standing relations, hand loan

was extended. It necessarily implies that it was for personal need of

accused and her husband as in the very complaint, there is averment

that, accused was facing domestic issues and was therefore in need of

funds.     Consequently, there was no transaction with Prerana Bachat

Gat. If this was the fact situation, then obviously there ought to have

been cheque of an account maintained by            accused personally.

However, here it is of the said Women Self Help Group namely

“Prerana Bachat Gat” with which there is no transaction of

complainant of any nature whatsoever.


13.      Section 138 of the N.I. Act is reproduced below for ready

reference.

      138. Dishonour of cheque for insufficiency, etc., of funds in the
      account.—
      Where any cheque drawn by a person on an account
      maintained by him with a banker for payment of any amount of
      money to another person from out of that account for the
      discharge, in whole or in part, of any debt or other liability, is
      returned by the bank unpaid, either because of the amount of
      money standing to the credit of that account is insufficient to
      honour the cheque or that it exceeds the amount arranged to be
      paid from that account by an agreement made with that bank,
      such person shall be deemed to have committed an offence and
      shall, without prejudice to any other provisions of this Act, be
      punished with imprisonment for a term which may be extended
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      to two years, or with fine which may extend to twice the
      amount of the cheque, or with both: Provided that nothing
      contained in this section shall apply unless—(a)the cheque has
      been presented to the bank within a period of six months from
      the date on which it is drawn or within the period of its
      validity, whichever is earlier;(b)the payee or the holder in due
      course of the cheque, as the case may be, makes a demand for
      the payment of the said amount of money by giving a notice in
      writing, to the drawer of the cheque, [within thirty days of the
      receipt of information by him from the bank regarding the
      return of the cheque as unpaid; and(c)the drawer of such
      cheque fails to make the payment of the said amount of money
      to the payee or, as the case may be, to the holder in due course
      of the cheque, within fifteen days of the receipt of the said
      notice.



      Therefore, what above provision contemplates is issuance of

cheque by a person on an account maintained by him in the bank for

payment of any amount for discharge of full or part liability.


14.   It is fairly settled position that unless and until essential

ingredients of Section 138 of the N.I.Act are available, offence cannot

be said to be attracted. It is the primary and fundamental requirement

that a person must have drawn a cheque “on an account maintained

by him” which is handed over for discharge of legally enforceable

debt. Here, apparently cheque in question is not drawn on personal

account of accused, rather it is a cheque drawn on the account of

above referred Prerana Bachat Gat. Respondent No.1/accused has
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adduced evidence of DW1 Balaji, Bank official of Adarsha Mahila

Nagari Sahakari Bank Ltd., at Exhibit 52 and he has identified and

endorsed account so maintained. Therefore, when the primary and

fundamental requirement was not met, complainant's case itself gets

hit at the bottom.

      The Hon’ble Apex Court in the case Alka Khandu Avhad v.

Amar Shyamprasad Mishra and Another, (2021) 4 SCC 675 observed

as under :

      "Held, it is only the person, who is signatory to cheque and
cheque is drawn by that person on account maintained him
(emphasis laid) and cheque has been issued for discharge, in whole
or in part, of any debt or other liability and said cheque has been
returned by bank unpaid, prosecuted under Section 138 of the
N.I.Act.”


      Similar views are also expressed in the Judgment of P.J. Agro

Tech Limited and Others v. Water Base Limited, (2010) 12 SCC 146,

wherein it is held as under :

      "From a reading of Section 138, it is very clear that in order to
attract the provisions thereof, a cheque which is dishonoured will
have to be drawn by a person on an account maintained by him for
payment of any amount of money to another person from out of that
account for discharge, in whole or in part of any debt or other
liability. It is only such a cheque which is dishonoured which would
attract provisions of Section 138 of the above Act against drawer of
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the cheque."



15.   Both sides were also heard to be hotly contesting on the issue of

service of legal notice. Record shows that mere envelop was placed

before learned trial Court. Though it was “unclaimed” and even if it

is considered to be a good service i.e. by invoking Section 27 of

General Clauses Act, it appears that complete legal notice is not part

of record and there is a single page which is silent about very

demand. Demand by way of legal notice is sine qua non and it has to

be unambiguous and in clear terms so put forth. But complete notice

is not part of record and therefore, it cannot be assumed to be a

demand notice as required under the law which was despatched to

the accused.



16.   The ratio laid down by the Hon’ble Apex Court in the above

referred cases relied by the learned counsel for the appellant is as

under :

      In the case of Dhanasingh Prabhu (supra), it is held that “In a
prosecution under Section 138 involving a partnership firm, the fact
that the partnership firm was not arraigned as an accused or that
statutory notice was not issued to the firm does not, by itself, make
the complaint maintainable against the partners. The Supreme Court
held that the partners could be proceeded against in the
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circumstances of that case.”


      In the case of Ashok Singh (supra) it is held that “The
complainant has no obligation to prove his financial capacity at the
threshold. However, once the accused challenges the complainant’s
financial capacity to advance the alleged loan, the complainant may
be required to place cogent material before the Court to establish that
he had the financial capacity and had actually advanced the amount
as a loan. The Court also considered the fact that the complainant
had specifically stated that he had withdrawn the amount from his
bank account.”


17.   I have gone through the above referred Judgments of the

Hon’ble Apex Court. However, the facts in the above cases and the

case in hand are distinct.


18.   To sum up, here, very essential ingredient of cheque in question

to be not drawn on account maintained by accused, the rigors of

Section 138 of the N.I. Act, cannot be said to be attracted.


19.   Yet another feature of this case, which emerges on re-

appreciation of evidence is that, alleged cheque in question (Exhibit

24) is dated 23-12-2009, however, said hand loan transaction is said

to be of 02-10-2008.     It cannot be comprehended that inspite of

receiving a cheque from accused, till receiving bank memo,

complainant did not notice that the cheque has not been drawn on
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personal account of accused but on account maintained by Prerana

Bachat Gat. Therefore, reasonable doubt arises on the complainant’s

case in that context too.


20.   On complete perusal of impugned judgment, it is noticed that,

evidence of both the parties has been properly appreciated by the

learned First Appellate Court. Law taken support by each of the side

is also dealt with and discussed. Therefore, in the considered opinion

of this Court, there is no perversity or illegality on the part of learned

First Appellate Court in overturning the Judgment of the trial Court

and acquitting the accused. Accordingly, following order is passed :



                                 ORDER

                  The Criminal Appeal is dismissed.




                                            [ABHAY S. WAGHWASE, J.]
SPT