SHARAD HARI PATILversusSANTOSH SITARAM PAWAR

2026:BHC-AUG:42763


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                                                    -1-

                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    BENCH AT AURANGABAD

                                  CRIMINAL APPEAL NO.61 OF 2006

                 .     Sharad s/o Hari Patil
                       Age: 49 years, Occu.: Business,
                       C/o. Ramanlal & Company,
                       Navi Peth, Near Janshakti,
                       Jalgaon, Tq. And Dist. Jalgaon.                   .. Appellant

                             Versus

                 .     Santosh s/o Sitaram Pawar
                       Age: 45 years, Occu.: Agri.,
                       R/o. At post Varsade Tanda,
                       Tq. Pachora, Dist. Jalgaon.                       .. Respondent

                                                …
                 Mr. Yadnyesh V. Dharmadhikari, Advocate h/f Mr. A. G. Talhar,
                 Advocate for the appellant.
                 Mr. S. D. Nimbalkar, Advocate h/f Mr. D. P. Palodkar, Advocate for
                 the respondent.
                                                ...

                                                  CORAM :   ABHAY S. WAGHWASE, J.
                                                  Reserved on : 08.09.2026
                                                  Pronounced on : 21.09.2026

                 JUDGMENT :-



                 1.    In this appeal, original complainant, who instituted proceedings

                 under Section 138 of the Negotiable Instruments Act [for short “N.I.

                 Act”], challenges the judgment and order passed by the learned

                 Judicial Magistrate First Class, Jalgaon in Summary Criminal Case

                 No.   289   of   2000    dated     08.08.2005,   by   which    present
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respondent/original accused, stood acquitted from charge under

Section 138 N.I. Act.


2.    Appellant filed above numbered proceedings on the premise

that he is a dealer of tractor, whereas accused was an agriculturist

and was desirous of purchasing new tractor, but he had no resources

and therefore, inquired regarding availability of finance. According to

complainant, he extended financial aid to accused towards down

payment for availing finance i.e. to the tune of Rs.45,000/- by way of

hand-loan, which accused agreed to repay on or before 31.01.1997,

however, he failed to repay and on persuasion, issued cheque dated

01.10.1999 drawn on his bank which was presently for realisation,

but it was dishonored and returned with remark “not arranged for”.

Consequently, as required under law demand notice was dispatched,

but accused failed to pay the cheque amount. Hence, the complaint.


3.    Learned    Counsel    for    appellant   would     submit    that

appellant/complainant has worked in the business of selling tractor

and there is no challenge to the same. He would further submit that

there is also no challenge or dispute that accused was an agriculturist

and was intending to purchase a new tractor. He further first

submitted that there is also no denial that accused did not have funds

towards own contribution by way of down payment for raising
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finance and, therefore, complainant on demand had extended hand

loan to the tune of Rs.45,000/-. He would submit that towards

repayment of hand loan accused had issued cheque. That, the same

was dishonoured. He would submit that as required under law,

demand notice was dispatched calling upon the accused to pay the

cheque amount. That, in spite of receipt of notice, accused failed to

pay the cheque amount and, therefore, above complaint was

instituted.


4.    He would further submit that complainant, apart from

adducing his own evidence, has placed on record the very cheque in

question, bank memo, reflecting dishonour and its reason as well as

placed on record copy of demand notice. According to him, neither

issuance of cheque was disputed, nor signature over it. Thus,

according to learned Counsel for the appellant, essential ingredients

for attracting Section 138 of the N.I. Act were available on record, but

learned trial Court failed to consider and appreciate the same and

hence, he seeks indulgence at the hands of this Court.


5.    Per contra, learned Counsel for respondent/accused would

justify the acquittal on the ground that complainant failed to prove

that there was legally enforceable debt and that the same was existing

on the date of action.
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6.    On perusal of record, it is emerging that, to substantiate his

case, appellant has adduced his evidence at Exhibit-24 and also

placed on record copy of cheque Exhibit-27, bank memo Exhibit-34,

legal notice Exhibit-28 and postal acknowledgment Exhibit-29.


7.    In his evidence at Exhibit-24 complainant has reiterated the

contents of the complaint.     Cheque in question Exhibit-27 was

identified by him to be the instrument issued by accused. In

complaint, it is stated that accused issued cheque bearing No.047235

for amount of Rs.25,000/- dated 01.10.1999, however, while

testifying before the Court, complainant deposed that accused issued

cheque of amount of Rs.20,000/- and he gave cheque number as

047236. Therefore, apparently, contents of complaint are contrary to

the testimony in the court firstly on the point of cheque number and

secondly on the point of quantum as well as month of issuance of

cheque.


8.    In cases under Section 138 N.I. Act, there is burden on

complainant to prove his case beyond reasonable doubt. Only when

foundational facts are proved, presumption available under Sections

118 and 139 of N.I. Act comes into play and unless this is done, there

is no corresponding burden on accused to discharge or rebut the said

burden.
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9.    Here, as stated above, evidence of complainant is contrary to

his own documents on record. Hence, it cannot be said that the

complainant had proved the issuance of cheque towards legally

enforceable debt to the tune of Rs.25,000/-.


10.   Learned Counsel for appellant would point out that learned

Trial Court has also erred in recording the finding that cheque was

time barred. According to him, such findings are contrary to the

record as well as law.


11.   In the backdrop of such submissions, record is put to scrutiny

and it is noticed that cheque placed on record worth Rs.25,000/-

bearing No.047235 is of 01.10.1999. Accused seems to have taken a

specific defence before the trial Court that said transaction is time

barred.


12.   On going through the record, apparently, it does emerge that

theory of complainant about accused securing hand-loan is of

October, 1996 and, therefore, action was expected to be initiated

within a stipulated period of three years. Here, complainant deposed

and got instrument Exhibit-27 by stepping in the witness box. It has

come on record that the cheque in question was of October, 1999 and

it is also so reflected in the complaint. Thus, if the actual transaction
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was of October 1996, the cheque ought to have been presented for

realization on or before 30.09.1999. However, the cheque is

apparently shown to have been issued on 01.10.1999, i.e., after the

expiry of the period of three years, and, as such, it is indeed time-

barred. No efforts were done by complainant to get necessary

corrections done either in the notice or complaint or vice versa.


13.   Thus, complainant failed to prove his case before the trial

Court, firstly for not proving cheque on record to be towards legally

enforceable debt of hand-loan, as there is variance in documentary

evidence adduced by him and his testimony before the Court.

Secondly, for aforesaid reasons, cheque is also time barred. Hence, no

fault can be attributed to the learned trial Court in acquitting accused,

as it is fairly settled position that offence under Section 138 of N.I. Act

is a technical offence and, therefore, essential requirements are

required to be strictly proved, which complainant seems to have been

failed to do so. There being no merits in the appeal, it deserves to be

dismissed. Hence, the following order is passed :-

                                 ORDER

             .      Criminal Appeal is hereby dismissed.



                                           [ABHAY S. WAGHWASE, J.]

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