SHANKAR BALIRAM HUMBARDEversusHARSHAD LAXMICHAND SHAH

2026:BHC-AUG:42923


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                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 BENCH AT AURANGABAD

                     CRIMINAL REVISION APPLICATION NO. 220 OF 2022
                                        WITH
                         CRIMINAL APPLICATION NO. 2419 OF 2022
                                         IN
                     CRIMINAL REVISION APPLICATION NO.220 OF 2022

                SHANKAR BALIRAM HUMBARDE,
                Age : 65 years, Occ : Agril,
                R/o Vishnupuri,
                Tq. and Dist. Nanded.
                                             ...PETITIONER
                                             (Orig. accused)

                VERSUS

                HARSHAD LAXMICHAND SHAH,
                Age : 65 years, Occu: Business,
                R/o Sahyog Chamber, Kailas Nagar,
                Nanded.
                Office at Plot No.61-68, C,
                Co-op. Industrial Estate,
                Shivaji Nagar, Nanded,
                Tq. and Dist. Nanded.
                                                    ...RESPONDENT
                                                    (Orig. complainant)

                                               ...
                Shri Shinde Dhananjay M., Advocate for the applicant/ accused.
                Shri Desale Nilesh N., Advocate for the Respondent.
                                               ...

                                  CORAM : SUSHIL M. GHODESWAR, J.


                                  Reserved on : 09 September 2026

                                  Pronounced on : 22 September 2026
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JUDGMENT :-

1.          The applicant/ original accused is praying for

quashing and setting aside the judgment and order dated

22.04.2022 passed by the learned Sessions Judge, Nanded in

Criminal Appeal No. 24 of 2017 and the judgment and order

dated 15.02.2017 passed by the learned Judicial Magistrate First

Class, Nanded, in SCC No.1606/2007. The applicant is further

praying for dismissing SCC No.1606/2007 filed under Section

138 of the Negotiable Instruments Act, 1881 by the respondent/

complainant.


2.          SCC No. 1606 of 2007 was filed by the respondent

under Section 138 of the Negotiable Instruments Act against the

applicant contending therein that he is businessman carrying on

business of oil at Nanded since long time and has cordial

relations with the applicant/ accused. On 05.11.2006, the

applicant approached him and requested for hand loan of Rs.5

lakhs and assured to repay the said loan amount within a period

of one month. On 13.11.2006, he gave hand loan of Rs.5 lakhs in

cash to the applicant. But, the applicant failed to repay the hand

loan amount as agreed. Therefore, the respondent/ complainant
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approached the applicant demanding his loan amount. In

pursuance to the said demand, the applicant issued cheque No.

725998 dated 31.05.2007 for Rs.2,50,000 of the Maharashtra

Gramin Bank, Branch Vishnupuri, Nanded. The applicant

instructed the respondent/ complainant to deposit the said cheque

after receiving instructions from him.


4.          As per the respondent/ complainant, on 22.06.2007

the applicant instructed the complainant to deposit the cheque

and accordingly, the cheque was deposited. The said cheque was

deposited at Akola Urban Cooperative Bank Limited, Branch at

Vazirabad, Nanded. However, on 25.06.2007, the bank of

complainant returned the cheque along with the memo of the

bank of the accused on the ground that there were insufficient

funds in the bank account of the applicant. On 11.07.2007, the

respondent issued a legal notice to the applicant calling upon him

to repay the amount of the said cheque. But, the applicant

allegedly has not received the said notice despite intimation by

the postal authority. After expiry of the period, the envelope

containing the notice was returned to the complainant by postal

authorities with intimation dated 17.07.2007. Therefore, the
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respondent complainant filed the complaint under Section 138 of

the Negotiable Instruments Act which came to be registered as

SCC No. 1606 of 2007 on 28.08.2007.


5.           It is pointed out to this Court that upon appearance

of the applicant/ accused before the learned Magistrate, when the

particulars of allegations below Exhibit 23 were explained to

him, he pleaded not guilty and claimed to be tried. Thereafter, the

respondent complainant examined himself as CW-1 by filing his

affidavit. He was also cross-examined by the applicant accused.

However, due to transfer of the presiding officer, the trial was

taken up de novo as per the order dated 06.02.2012. Thereafter,

the complainant again filed his affidavit of evidence on

22.03.2013. The accused, despite several chances to cross-

examine the complainant, did not avail the same. The Roznama

and order passed on Exhibit 1 would prove the said fact. The

complainant has also relied on documents like cheque, cheque

return memo, copy of postal receipt, returned envelopes, etc.


6.           After recording the statement of the accused under

Section 313 of the Cr.P.C., he filed an application at Exhibit 88 to

adduce evidence. However, the record discloses that even after
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similar such applications, the applicant/ accused did not adduce

any further evidence. In pursuance of the aforesaid facts, the

learned Judicial Magistrate First Class heard the parties and also

permitted the accused to submit his written notes of arguments as

per Exhibit 145. Thereafter, the learned Magistrate, by impugned

judgment and order dated 15.02.2017, was pleased to convict the

applicant for   the offence punishable under Section 138 of

Negotiable Instruments Act and sentenced him to suffer simple

imprisonment for six months and to pay fine of Rs.3 lakhs, in

default, to suffer simple imprisonment for two months. It was

also directed that after realization of the fine amount, the amount

of Rs. 2,75,000/- be given to the respondent/ complainant as

compensation after the appeal period is over.


7.          Feeling aggrieved with the said order dated

15.02.2017, the applicant preferred Criminal Appeal No. 24/

2017. The learned Sessions Judge, while adjudicating upon

Criminal Appeal No. 24/ 2017, was pleased to frame three major

points. One of the points was as to whether the complainant has

proved that he issued notice in writing demanding the amount of

cheque from the accused being drawer of the cheque, and that the
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accused failed to pay the amount of cheque within a stipulated

period of 15 days and thus, he deemed to have committed the

offence punishable under Section 138 of Negotiable Instruments

Act, 1881. Apart from the said point, the learned Sessions Judge

also proceeded to frame the issue as regards whether, the

complainant has proved that he has presented the said cheque

within the period of its validity with the banker of the accused,

and that the said cheque was returned unpaid by the banker of the

accused due to insufficiency of funds in the account maintained

by the accused. All the points have been answered by the learned

Sessions Judge in the affirmative. Therefore, vide impugned

order dated 22.04.2022, the learned Sessions Judge was pleased

to partly allow the appeal. The conviction passed by the learned

Judicial Magistrate First Class, Nanded came to be maintained.

However, the sentence came to be altered and the applicant was

sentenced to suffer imprisonment till rising of the court and to

pay fine of Rs.5 lakhs, in default of fine, to     suffer simple

imprisonment for three months.


8.          Being   aggrieved    by   the   aforesaid   impugned

judgments and orders, the applicant / accused has preferred the
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instant Criminal Revision Application under Section 397 read

with 401 of Cr.P.C. before this Court.


9.          Heard Mr. Shinde, learned advocate appearing for

the applicant/ accused and Mr. Desale, learned advocate

appearing for the respondent/ complainant at length.


10.         According to Mr. Shinde, learned counsel for the

applicant, the respondent has failed to prove that the cheque was

issued against legally enforceable debt. Both the courts below

shifted the burden upon the applicant by presuming that, since

the complainant was not cross-examined and no evidence was led

by the applicant, the cheque must have been issued towards

legally enforceable debt.


11.         The major ground which Mr. Shinde pointed out is

that the learned subordinate courts failed to consider that the

notice of demand was issued on 10.07.2007 and on 11.07.2007

the intimation was given to the house of accused. The same is

returned to the complainant on 17.07.2007. According to Mr.

Shinde, considering this, the cause of action for lodging the

complaint would start from 11.07.2007. The respondent/

complainant ought to have waited till 26.07.2007 for fulfillment
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of demand notice and he should have filed the complaint on

26.08.2007. However, the respondent has filed the complaint on

28.08.2007 which means the complaint is out of limitation and

therefore, the complaint ought to have been dismissed on this

count only. He further submitted that the return memo, though

shown to be dated 17.07.2007, however, no evidence was led

about the same except the postal receipt which shows only date

of intimation dated 11.07.2007. Still, the complaint ought to have

been lodged till 26.08.2007, but as stated earlier the complaint

came to be lodged on 28.08.2007. Therefore, same is beyond

limitation.


12.           According to Mr. Shinde, the intimation about postal

notice is given, but nowhere it comes on record that the accused

has denied to accept the notice. Hence, the service of notice and

the intimation is not proper and based on this intimation, the

proceeding itself is bad in the eyes of law. Mr. Shinde further

submitted that the disputed cheque amount is of Rs.2,50,000/-.

However, as per the respondent, the total legal debt amount is

Rs.5 lakhs and therefore, the amount which is mentioned in the

cheque is less than the legally enforceable debt. Therefore, on
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this count, the complaint ought to have been dismissed by the

subordinate courts.


13.         Mr. Shinde would further argue that it is unusual to

accept that the complainant has paid huge amount of Rs.5 lakhs

to the applicant without obtaining any single document. In view

of the aforesaid submissions, Mr.Shinde submits that the

conviction of the applicant /accused for the offence punishable

under Section 138 of Negotiable Instruments Act is not

sustainable. He submits that both the subordinate courts have

failed to consider the aforesaid submissions and therefore, the

judgments passed by the learned lower courts are illegal and

same are required to be quashed and set aside thereby acquitting

the applicant. In support of his submissions, Mr. Shinde, has

relied upon the judgments reported in Sil Import, USA vs. Exim

Aides Silk Exporters, Bangalore, (1999) 4 SCC 567 and

Darshan Singh vs. State of West Bengal and others, 2000 SCC

OnLine Cal 171.


14.         Per contra, Mr. Desale, learned counsel for the

respondent /complainant, strongly opposed the instant revision

application. He submitted that there being concurrent findings by
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the two subordinate courts that the applicant is convicted for the

offence punishable under Section 138 of Negotiable Instruments

Act, therefore, the scope of this Court is highly limited so as to

exercise powers under Section 397 of the Cr.P.C. He further

submitted that the respondent has proved all the issues in his

favour and as such, there is no lacuna or illegality in the

judgments passed by the learned lower courts. All the issues

raised by the applicant, not only before this Court but even

before the Sessions Court as well as the Trial Court, have been

considered at length while evaluating the evidence led by the

parties before the Trial Court. All the aspects having been

considered carefully and examined properly, there is no scope for

entertaining this revision application. He further submitted that it

would be stretching too far if the applicant is permitted to raise

the same grounds which have been already elaborately answered

by the learned Trial Court as well as the Appellate Court.


15.          Mr. Desale further submitted that the complainant

has proved that the accused issued cheque bearing No. 725998 of

Rs.2,50,000/- to the complainant for discharge of legally

enforceable debt. The complainant has also proved that the
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cheque has been presented to the bank within the period of its

validity. It is also further proved that the cheque is returned by

the bank as unpaid because the amount of money standing to the

credit of account is insufficient to honour the cheque. It is further

proved by the complainant that he had made demand for the

payment of the cheque amount by giving a statutory notice in

writing to the accused within 30 days of the receipt of

information by him from the bank regarding the return of the

cheque as unpaid. He further submitted that the complainant has

also proved that despite receipt of notice on 17.07.2007, calling

upon accused to repay the cheque amount, the applicant accused

failed to make the payment of cheque amount within 15 days

from the date of receipt of notice.


16.          Mr. Desale further submitted that even before the

Appellate Court, when the applicant /accused has challenged the

judgment of the trial court, the learned Sessions Judge in

appellate proceeding has also held that the complainant has

proved that he issued the legal notice in writing demanding the

amount of cheque from the accused being the drawer of cheque

and the accused failed to pay the said cheque amount within
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stipulated period of 15 days. Thus, the applicant has committed

the offence punishable under Section 138 of Negotiable

Instruments Act. He, therefore, submitted that as both the learned

courts have properly appreciated all the aspects and the issues,

therefore, having committed no illegality or mistake or error, the

scope of the High Court to entertain such revision application

under Section 397 would be too narrow and therefore, the instant

revision application is liable to be dismissed.


17.          After hearing the learned counsel for the parties and

going through the impugned orders passed by the subordinate

courts, first of all, it is very useful to refer to paragraph no.5 of

the judgment delivered by the Hon'ble Apex Court in the case of

State of Kerala vs. Puttumana Illath Jathavedan Namboodiri

reported in (1999) 2 SCC 452 : 1999 SCC (Cri) 275 as under:-


      “5.    In its revisional jurisdiction, the High Court
             can call for and examine the record of any
             proceedings for the purpose of satisfying itself
             as to the correctness, legality or propriety of
             any finding, sentence or order. In other words,
             the jurisdiction is one of supervisory
             jurisdiction exercised by the High Court for
             correcting miscarriage of justice. But the said
             revisional power cannot be equated with the
             power of an appellate court nor can it be treated
             even as a second appellate jurisdiction.
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             Ordinarily, therefore, it would not be
             appropriate for the High Court to reappreciate
             the evidence and come to its own conclusion
             on the same when the evidence has already
             been appreciated by the Magistrate as well as
             the Sessions Judge in appeal, unless any
             glaring feature is brought to the notice of the
             High Court which would otherwise tantamount
             to gross miscarriage of justice.”



18.          In view of the aforesaid observations by the Hon'ble

Supreme Court, the contours for exercise of revisional

jurisdiction has been well settled by the judicial dicta wherein

time and again it has been observed that the High Court shall not

interfere with the orders of lower court unless: i) the order or

finding of the lower court is perverse, grossly erroneous,

glaringly unreasonable or wholly unreliable or untenable in law;

ii) the lower court has passed the impugned order after

considering an immaterial or irrelevant material or no material at

all; and iii) there is non-consideration of any relevant material or

the judicial discretion has been exercised arbitrarily or

capriciously.


19.          In the aforesaid background, it is also useful to refer

to paragraph No.27 of the judgment delivered by the Hon'ble

Apex Court in Sanjabij Tari v. Kishore S. Borcar, reported as
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2025 SCC OnLine SC 2069 : [2025] 9 S.C.R. 1515, which reads

as under:-


      “27.   It is well settled that in exercise of revisional
             jurisdiction, the High Court does not, in
             absence of perversity, upset concurrent factual
             findings. This Court is of the view that it is not
             for the revisional court to re-analyze or re-
             interpret the evidence on record. As held by
             this Court in Southern Sales and Services and
             Others vs. Sauermilch Design and Handels
             GmbH, 2008 (14) SCC 457 / AIR 2009 SC
             320, it is a well-established principle of law
             that the revisional court will not interfere even
             if a wrong order is passed by a court having
             jurisdiction, in absence of a jurisdictional error.
             Consequently, this Court is of the view that in
             absence of perversity, it was not open to the
             High Court in the present case in revisional
             jurisdiction to upset the concurrent finding of
             the trial court and the Sessions Court."



20.          In the background of aforesaid observations and

clear cut guidelines, after examining the case in hand, there is no

hesitation in holding that the trial court as well as the appellate

court have dealt with each and every issue raised by the

applicant/ accused. The main contention of the learned counsel

for the applicant is that Section 138(b) of the Negotiable

Instruments Act requires the payee or holder in due course to

make a demand for payment by giving notice in writing to the
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drawer within thirty days of receipt of information regarding the

return of the cheque as unpaid. However, as per the complainant,

such notice was issued by him through his advocate. The said

notice was dispatched to the applicant /accused on his two

different addresses under postal receipts as deposed by the

complainant. So far as the service of notice is concerned, the

postal authorities intimated the accused about the notice, but the

accused did not accept it and therefore, after expiry of period, the

envelopes containing the notice were returned to the complainant

by postal authorities on 17.07.2007. Even after waiting for 15

days, the accused has not made payment, and as he failed to pay

the amount, therefore, the complainant has filed the complaint on

28.08.2007. The applicant has strongly disputed the aspect of

complaint filing within limitation from the date of serving of

notice on the accused.


21.          In this case, the cheque in question was dated

31.05.2007 and the notice was issued on 10.07.2007. The

envelopes containing the notice with acknowledgment slips came

to be returned on 17.07.2007. From the dates mentioned by the

postal authorities on envelopes at Exhibit 32 and 33, it is
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disclosed that on 11.07.2007 the applicant accused was absent,

on 12.07.2007 oral intimation in the house of accused was given,

and on 17.07.2007, there is an endorsement of 'not claimed'.


22.         However, according to the learned counsel for the

applicant, the cause of action to file the complaint would accrue

on 26.07.2007 and therefore, the complaint ought to have been

filed within one month i.e. on or before 26.08.2007. However,

the complaint came to be filed on 28.08.2007, therefore it is

barred by limitation. Hence no cognizance could have been taken

by the learned Magistrate. This issue raised by the learned

counsel for the applicant has been elaborately considered by both

the courts below and after giving detailed finding, the learned

Sessions Court in appeal held in paragraphs Nos.37 and 41 that

the complaint is within limitation. It is held that the postal

authorities, after waiting till 17.07.2007, returned the envelopes

containing notice to the advocate of the complainant with the

endorsement 'not claimed'. Relying upon the judgment in K.

Bhaskaran vs. Sankaran Vaidhyan Balan reported in (1999) 7

SCC 510 : 1999 AIR (SC) 3762 and in Rambhau Tulsiram

Bhusari v. Assanand Dhanumal Vensiani & Anr., 2019 SCC
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OnLine Bom 3277, it is observed by the learned Sessions Court

that the period would start from 17.07.2007 and not from

11.07.2007. Taking the date of service of notice as 17.07.2007,

after considering 15 days period within which the accused could

have paid the amount of cheque i.e. on or before 01.08.2007, the

complaint could have been filed within one month after ignoring

01.08.2007 i.e. the period of limitation would start from

02.08.2007. One month time to file the complaint would thus

expire on 01.09.2007, whereas admittedly the complaint is filed

on 28.08.2007, which is well within limitation as per Section

138(c) of the Negotiable Instruments Act. The cause of action

accrued on 01.08.2007 on failure of the accused to pay the

amount of cheque. On careful reading of the impugned

judgments passed by both the courts, all aspects are correctly and

properly examined and it has been found that the accused is

guilty.


23.         Reliance placed by the learned counsel for the

applicant on the judgments cited by him does not advance the

case of the applicant in the facts and circumstances of the present

case. The said authorities are either distinguishable on facts or
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deal with the question of computation of limitation in a factual

and statutory context which is materially different from the case

in hand. It is settled that for the purpose of computing the

prescribed period of one month, the date on which the cause of

action arises is to be excluded. In the present case, upon

acceptance of 17.07.2007 as the date of receipt/deemed service of

the statutory notice, the statutory period of fifteen days expired

on 01.08.2007 and the cause of action accrued thereafter; the

complaint filed on 28.08.2007 was, therefore, within the period

prescribed under Section 142(b) of the Act. Consequently, the

authorities relied upon by the applicant do not warrant different

conclusion in the present case.


24.          The contention that the amount mentioned in the

cheque is less than the total amount of the alleged debt also does

not, by itself, render the prosecution under Section 138 of the

Negotiable   Instruments Act        unsustainable.   The    statutory

provision expressly contemplates issuance of a cheque towards

discharge, in whole or in part, of a legally enforceable debt or

other liability. Therefore, merely because the cheque amount of

Rs.2,50,000/- is less than the alleged outstanding liability of
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      Rs.5,00,000/-, the statutory ingredients of Section 138 cannot be

      said to be absent on that ground alone.


      25.            In view of the above discussion, I find that all

      aspects raised by the applicant have been properly examined and

      considered by the appellate as well as trial court, and as such,

      there is no perversity or illegality in the said judgments. In that

      view of the matter, I find that no case is made out for interference

      in the judgments passed by the learned subordinate courts. As

      such, the instant Revision Application is dismissed.


      26.            In view of dismissal of the revision application, the

      pending Criminal Application does not survive and stands

      disposed of.


kps                                    (SUSHIL M. GHODESWAR, J.)