NITIN VISHWASRAO DESHMUKHversusTHE STATE OF MAHARASHTRA AND ANOTHER

2026:BHC-AUG:41397


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                                                   (1)

                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 BENCH AT AURANGABAD

                      CRIMINAL REVISION APPLICATION NO.327 OF 2022
                                         WITH
                          CRIMINAL APPLICATION NO.3727 OF 2022

                                    Nitin s/o Vishwasrao Deshmukh
                                                VERSUS
                                  The State of Maharashtra and another
                                                  …..
                 Mrs Surekha G. Chincholkar, Advocate for Applicant
                 Mr M. A. Aher, APP for Respondent No.1/State
                 Mr A. D. Kasliwal, Advocate for Respondent No.2
                                                 …..
                                         CORAM : SUSHIL M. GHODESWAR, J.

                                             DATE : 03rd SEPTEMBER 2026

                 P. C. :


                 1.          The applicant is challenging the judgment and order dated

                 14/10/2022, passed by the learned Additional Sessions Judge, Vaijapur,

                 District Aurangabad, in Criminal Appeal No.3/2020, thereby

                 dismissing the appeal preferred by him, challenging the judgment and

                 order dated 14/01/2020, passed by the learned 2nd Judicial Magistrate

                 First Class, Vaijapur in S.C.C. No.553/2013, thereby convicting the

                 applicant for the offence punishable under Section 138 of the

                 Negotiable Instruments Act, 1881 and sentenced to suffer simple

                 imprisonment for three months and to pay a fine of Rs.3,20,000, in

                 default to pay fine, to suffer simple imprisonment for two months.
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2.          Respondent No.2 is the original complainant, who had

filed a complaint against the applicant for the offence punishable under

Section 138 of the Negotiable Instruments Act before the Court of

Learned Judicial Magistrate First Class, Vaijapur, District Aurangabad,

which came to be registered as S.C.C. No. 553/2013. According to

respondent No. 2 (complainant), he had given a hand loan of

Rs.1,60,000 on 15/03/2012 to the applicant-accused. Since the said

loan amount was not repaid upon repeated demands, the applicant

allegedly issued a cheque dated 15/03/2013 drawn on his account at

Aurangabad District Central Cooperative Bank, Vaijapur Branch.

When complainant presented the said cheque through his bank account

at Maharashtra Godawari Gramin Bank, Vaijapur, the same came to be

returned with the endorsement "Funds Insufficient." The said cheque

came to be presented again on 23/04/2013, and again it came to be

returned on the ground of "Funds Insufficient" on 24/04/2013.

Therefore, the complainant issued a statutory notice to the

applicant/accused. Since the applicant-accused failed to repay the loan

amount as claimed, the complainant instituted the complaint under

Section 138 of the Negotiable Instruments Act.
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3.          After recording the evidence and the statement of the

applicant/accused under Section 313 of the Code of Criminal

Procedure, the learned Judicial Magistrate First Class held the

applicant guilty under Section 138 of the Negotiable Instruments Act

and convicted him. The said conviction came to be challenged by the

applicant by preferring Criminal Appeal No.03/2020 before the learned

Additional Sessions Judge, Vaijapur.    Learned Additional Sessions

Judge dismissed the appeal vide order dated 14/10/2022. Therefore,

the applicant has approached this Court by filing the instant Criminal

Revision Application.


4.          Heard Mrs. Chincholkar, learned Advocate for the

applicant, learned APP Mr. Aher for respondent No.1/State and learned

Advocate Mr. Kasliwal for respondent No. 2.


5.          Mrs Chincholkar, learned Advocate for the applicant

submits that, both the learned lower Courts erred in law in convicting

the applicant on the basis of erroneous and perverse findings and they

have mis-appreciated the evidence on record. She further submits that

the evidence of the complainant cannot be considered so as to convict

the applicant under Section 138 of the Negotiable Instruments Act. She

further submits that defence of applicant has not been considered
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properly by the lower Courts below, and thus, the learned lower Courts

have committed a grave error in law, thereby holding that the applicant

has issued the cheque in discharge of liability towards a legally

enforceable debt.


6.          Mr Chincholkar further submits that the applicant had not

taken hand loan from complainant. There was a specific demand by

the applicant from one Darshan Ramayya, who is a friend of the

complainant.      The applicant/accused had taken a hand loan of

Rs.30,000 from said Darshan Ramayya, and to repay the said amount,

he had given three blank signed cheques as security towards the hand

loan of Rs.30,000/- to said Darshan Ramayya. Out of the said three

cheques, one cheque has been misused by the respondent/complainant,

and therefore, the learned Subordinate Courts were required to hold

that the applicant has not committed the offence as alleged by the

complainant. Therefore, Mrs. Chincholkar vehemently submits that

the applicant has succeeded in rebutting the presumption drawn against

him, and as such, the applicant is entitled to be acquitted from the

aforesaid case.


7.          Mrs Chincholkar further submits that the cheques given to

Darshan Ramayya, have also been returned with the same endorsement
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("Funds Insufficient"), and he had also instituted a complaint

separately against the applicant. Against the said complaint, Criminal

Revision Application No. 64/2026 is pending before this Court. In the

said criminal case as well, the applicant has been convicted, and

against the said conviction, the said revision application is preferred by

the applicant before this Court.



8.             Per contra, Mr. Kasliwal, learned Advocate for respondent

No.2/complainant vehemently opposes the instant Criminal Revision

Application.     According to him, the respondent/complainant has

clearly established before the Trial Court that the applicant issued the

cheque amount. Same came to be presented to the bank where the

respondent/complainant maintains his account. The same came to be

returned for the reason "Funds Insufficient," and therefore, the

respondent/complainant issued a statutory notice under Section 138 of

the Negotiable Instruments Act. Since the applicant did not reply to

the said notice, complainant filed a complaint under Section 138 of the

Negotiable Instruments Act before the learned Judicial Magistrate First

Class. He further submits that the evidence brought before the learned

Trial Court by the complainant is sufficient to prove the charges

against the applicant. He then submits that, in view of the provisions
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of Sections 118, 138, and 139 of the Negotiable Instruments Act, there

is a presumption that the holder of the cheque received the cheque for

the discharge of a debt or liability. Such presumption also includes the

presumption of a legally enforceable debt or liability. Hence, in view

of the presumption raised under Sections 118 and 139 of the Act, the

complainant has proved that there is a legally enforceable debt on the

accused. The applicant/accused failed to rebut the aforesaid burden,

and therefore, it has been fully established that the cheque in question

was issued towards a legally enforceable debt. He, therefore, prays for

dismissal of the present revision application.



9.           After hearing the learned Advocates for the parties and

going through the evidence on record, it appears that both the Courts

below have given a specific finding that the applicant/accused issued

the cheque in favour of the respondent/complainant in discharge of a

legal liability, and the said cheque came to be dishonored.         The

demand notice was also proved to be validly served to the applicant.

There was a further finding that the applicant has failed to rebut the

statutory presumption under Section 139 of the Negotiable Instruments

Act. Thus, it was held that the accused issued the cheque in favour of

the complainant in discharge of a legal debt or liability.
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                                  (7)


10.          After perusing both the judgments carefully and going

through the evidence available on record, it is clearly established that

the applicant/accused has issued the aforesaid cheque in discharge of a

legally enforceable debt.   In my opinion, both the learned Courts

below have appreciated the evidence in proper perspective. They have

given the aforesaid judgments by following the well-established

procedure. The evidence brought by the complainant as well as the

defence of the accused has been considered in an appropriate manner.

There is neither a procedural flaw, nor a failure to consider any vital

provision.



11.          Since both judgments passed by the learned lower Courts

are correct and proper, this Court is not inclined to interfere by

exercising its jurisdictional power under Section 397 of the Code of

Criminal Procedure. The power under Section 397 of the Code of

Criminal Procedure is to be exercised sparingly and only in

exceptional cases to rectify a miscarriage of justice. Since both the

learned Subordinate Courts, after properly examining the evidence,

have arrived at a conclusion that the applicant has issued the cheque

towards discharge of legal liability of repaying the loan amount, I am,

therefore, of the view that the instant revision application does not
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have any valid or strong grounds to upset the findings given by the

learned lower Courts. Hence, the present criminal revision application

deserves to be dismissed and accordingly, the same is dismissed.


12.         In view of dismissal of the criminal revision application,

Criminal Application No.3727/2022 does not survive and the same is

also dismissed.




                                   [SUSHIL M. GHODESWAR, J.]
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