MOHD YAKUB SAUDAGARversusTHE STATE OF MAHARASHTRA AND ANR

2026:BHC-AUG:38126


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                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  BENCH AT AURANGABAD

                 911 CRIMINAL REVISION APPLICATION (ST.) NO.57 OF 2017
                                        WITH
                         CRIMINAL APPLICATION NO.955 OF 2017

                                   MOHD YAKUB SAUDAGAR
                                             VERSUS
                               1. THE STATE OF MAHARASHTRA,
                     2. SHANKARRAO HARIBHAU GHULE (DECEASED),Thr. L.Rs.
                               2/A Smt. Sharda w/o Shankarrao Ghule
                                 2/B Abhishek s/o Shankarrao Ghule
                                                   …..
                 Mr V. S. Bedre, Advocate for Applicant
                 Mr M. A. Aher, APP for Respondent No.1/State
                 Mr D. A. Bide, Advocate for Respondent No.
                                                 …..
                                          CORAM : SUSHIL M. GHODESWAR, J.

                                              DATE : 19th AUGUST, 2026
                 P. C. :

                            CRIMINAL APPLICATION NO.955 OF 2017


                 1.           This is an application for condonation of delay of 214

                 days caused in filing revision application.


                 2.           Heard Mr Bedre, learned Advocate for the applicant,

                 learned APP for respondent No.1/State and Mr Bide, learned Advocate

                 for respondent Nos.2/A and 2/B.


                 3.           For the reasons stated in the application, the same is

                 allowed. Delay is condoned. Criminal Application stands disposed of.
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     CRIMINAL REVISION APPLICATION (ST) NO.57 OF 2017


4.            With consent of the respective parties, this criminal

revision application is taken up for final hearing.


5.            Learned Advocate Mr Bedre for applicant states that the

complainant had filed a complaint against applicant for the offence

punishable under Section 138 of the Negotiable Instruments Act (for

short ‘N.I.Act’), stating therein that in 2005, applicant had approached

him and demanded hand loan of Rs.2,50,000/-. Applicant/accused had

assured to repay the said amount within a period of twelve months.

Accordingly, complainant alleged to have paid Rs.2,50,000/- to

applicant on 05/06/2005. On demand of that amount by complainant,

applicant/accused issued a cheque bearing Cheque No.001924, dated

25/07/2006 of Rs.2,50,000/-, drawn on Ashok Sahakari Bank Ltd.,

Parvati Chambers, Main Road, Shrirampur, Dist. Ahmednagar.

Thereafter, respondent/complainant deposited the said cheque at the

Ahmednagar Merchant’s Co-operative Bank Ltd., Branch Market Yard,

Ahmednagar on 25/07/2006.            The said cheque came to be

dis-honoured for the reasons “Payment Stopped By The Drawer” on

27/07/2006.     Accordingly, complainant sent notice to applicant/

accused on 01/08/2006 for demanding the cheque amount.              The
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accused/applicant received the said notice on 03/08/2006, but as he

failed to pay amount of cheque within a period of fifteen days,

respondent/complainant filed a complaint before the learned Judicial

Magistrate First Class, Ahmednagar.


6.           Learned Judicial Magistrate First Class, Ahmednagar, vide

the impugned judgment and order in S.T.C. No.6314/2006, dated

07/03/2008, convicted applicant for the offence punishable under

Section 138 of the N.I.Act and sentenced him to suffer simple

imprisonment of three months and fine of Rs.2,51,000/-, in default, to

suffer simple imprisonment of six months.


7.           Being aggrieved by the aforesaid impugned judgment and

order, applicant preferred Criminal Appeal No.61/2008 before the

learned Additional Sessions Judge, Ahmednagar, which came to be

dismissed. Learned Additional Sessions Judge, Ahmednagar, vide the

impugned judgment and order dated 18/04/2016, confirmed the

judgment and order of conviction, passed by the learned Judicial

Magistrate First Class, Ahmednagar.


8.           Being aggrieved by the said judgment and orders of the

learned Subordinate Courts, present applicant has approached this

Court by filing present revision application.
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9.           Before proceeding with the matter, learned Advocate for

the respondent/complainant fairly states before this Court that the

complainant is expired and though names of his wife and son are

brought on record as his legal heirs, they have informed that they are

not interested in prosecuting the instant matter further.


10.          Learned Advocate for applicant submits that, applicant

had filed appeal before the learned Sessions Court, challenging

conviction order, and the learned Sessions Court, on condition of

depositing Rs.40,000/-, suspended the sentence passed by the learned

Judicial Magistrate First Class, Ahmednagar. He further submits that

the complainant has failed to establish that the amount of cheque was

issued towards recovering the debt amount, which was, in fact an

unaccounted cash amount. He further submits that the provisions of

Section 138 of the N.I.Act cannot be resorted to for recovering an

unaccounted amount. A cheque issued in discharge of an alleged

liability of repaying an unaccounted cash, cannot be said to be a

cheque issued in discharge of a legally enforceable debt or liability

within the meaning of explanation of Section 138 of the N.I.Act.

Thus, he points out that the amount alleged to be advanced was

unaccounted cash, and therefore, the liability to repay the said
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unaccounted cash amount cannot be considered a legally enforceable

debt within the meaning of Section 138 of the N.I.Act. To buttress this

submissions, he relies on the judgment of the Hon’ble Apex Court in

the matter of Sanjay Mishra Vs. Kanishka Kapoor @ Nikki and

another, [2009 (4) Mh.L.J. 155].


11.         Another important limb of submission of learned

Advocate for applicant is that, in fact, he had issued the said cheque to

Dr. Prakash Jadhav for the purpose of security for amount taken from

him. He then submits that applicant had repaid loan amount to said Dr.

Prakash Jadhav, however, the said cheque is misused by Dr. Prakash

Jadhav by handing it over to complainant.         In pursuance of said

misuse, applicant had also lodged police complaint against

complainant and Dr. Prakash Jadhav, and therefore, he submits that

cheque was never issued by the applicant towards discharge of any

liability to pay any legally enforceable debt. He, therefore, submits

that the learned Subordinate Courts virtually failed to examine this

aspect and proceeded further to convict applicant in a mechanical

manner.



12.         Thus, he submits that, both the judgment and orders of the

Subordinate Courts are perverse and liable to be quashed and set aside.
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13.         Per contra, learned APP opposed this revision application.

14.         After going through the submissions advanced by the

learned Advocates for the respective parties, it is clear that cheque in

question was indeed issued to the complainant.        The complainant

presented the said cheque to the Banker. After submission of cheque,

the same was dis-honoured and the complainant, therefore, issued

notice to revision applicant for paying the cheque amount. Since

applicant failed to pay that amount, complainant had lodged complaint

for the offence punishable under Section 138 of the N.I.Act. Initially,

burden of proof was on the complainant to show that the said cheque

was issued in discharge of a liability, which must be a legally

enforceable debt. It has not come in the evidence that any amount of

loan was given to revision applicant as a hand loan and in exchange of

same, revision applicant had issued a cheque. Learned Advocate for

applicant rightly pointed out that the amount alleged to be advanced

was unaccounted cash, and therefore, the liability to repay the said

amount cannot be considered a legally enforceable debt within the

meaning of Section 138 of the N.I.Act.


15.         In that view of the matter, I am of the considered opinion

that the complainant has failed to establish that the cheque in question
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was issued towards discharge of a legally recoverable debt. Thus,

present applicant has made out a case. Hence, I pass the following

order :-

                               ORDER

(I)    The criminal revision application is allowed.

(II)   The impugned judgment and order dated 18/04/2016, passed by

learned Additional Sessions Judge, Ahmednagar in Criminal Appeal

No.61/2008, confirming the judgment of conviction and order of

sentence, dated 07/03/2008, passed by the learned Judicial Magistrate

First Class, Ahmednagar in S.T.C. No.6314/2006, is hereby quashed

and set aside. Applicant is acquitted of the offence punishable under

Section 138 of the N.I.Act.

(III) The bail bonds of applicant, if any, stands cancelled.

(IV) Record and Proceedings (R&P) be sent back to the Subordinate

Courts forthwith.


16.          At this stage, learned Advocate Mr Bide for the

respondent/complainant, on instructions, submits that, since the

amount of Rs.40,000/- was deposited by applicant before the Sessions

Court and could have been withdrawn by the complainant, the same
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may not be permitted to applicant/accused to withdraw, as the

complainant has expired.


17.         Hence, if the amount of Rs.40,000/- deposited by

applicant has not been withdrawn by complainant (now deceased) and

is still lying with the Sessions Court, the same could be permitted to be

withdrawn by applicant.




                                     [SUSHIL M. GHODESWAR, J.]
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