RAJENDRA KAUTIKRAO WARADEversusTHE STATE OF MAHARASHTRA AND ANOTHER

2026:BHC-AUG:41174


                                               *1*                 revn338o23


                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 BENCH AT AURANGABAD

                     CRIMINAL REVISION APPLICATION NO.338 OF 2023

                Rajendra s/o Kautikrao Warade,
                Age : 46 years, Occu : Agri,
                R/o Samarth Nagar, Nalani,
                Tq. Bhokardan, Dist. Jalna.
                                                      ...APPLICANT
                                                      (Orig. Accused)
                       -VERSUS-

                1.     The State of Maharashtra.

                2.     Bhaskar s/o Eknath Kafre,
                       Age : 51 years, Occu : Agri,
                       R/o Tupewadi, Tq.Badnapur,
                       Dist. Jalna.
                                                            ...RESPONDENTS

                                        WITH
                         CRIMINAL APPLICATION NO.296 OF 2026
                                         IN
                     CRIMINAL REVISION APPLICATION NO.338 OF 2023

                Bhaskar s/o Eknath Kafre,
                Age : 51 years, Occu : Agri,
                R/o Tupewadi, Tq.Badnapur,
                Dist. Jalna.
                                                     ...Applicant
                                               (Orig. Complainant)
                       VERSUS

                Rajendra s/o Kautikrao Warade,
                Age : 46 years, Occu : Agri,
                R/o Samarth Nagar, Nalani,
                Tq. Bhokardan, Dist. Jalna.
                                                      ...Respondent/ accused

                                               …
                               *2*                  revn338o23


Shri Shailendra S. Gangakhedkar, Advocate for the applicant/
accused.
Shri M.A. Aher, APP for respondent No.1/ State.
Shri Yogesh G. Somani, advocate for the complainant.
                              …

                   CORAM : SUSHIL M. GHODESWAR, J.


                   Reserved on : 01 September 2026

                   Pronounced on : 07 September 2026


JUDGMENT :-

1.          This Criminal Revision Application has been

preferred under Section 397 read with Section 401 of the Code of

Criminal Procedure, 1973 (for short, 'the CrPC') challenging the

judgment and order dated 27.10.2023 passed by the learned

Additional Sessions Judge-3, Jalna, in Criminal Appeal No.30/

2022, whereby the learned Additional Sessions Judge dismissed

the appeal and confirmed the judgment and order dated

08.09.2022 passed by the learned Judicial Magistrate First Class,

Jalna, in S.C.C. No. 543 of 2018, convicting the applicant for the

offence punishable under Section 138 of the Negotiable

Instruments Act, 1881, and sentencing him to suffer simple

imprisonment for six months and to pay cheque amount of Rs.

12,00,000/- to the complainant as compensation under Section
                                 *3*                   revn338o23


357(3) of the CrPC.


2.           The brief facts of the complaint case are that the

applicant/accused was in need of Rs.12,00,000/- for the

expansion    of   his     business.    Respondent   No.2/       original

complainant being a good friend, advanced hand loan to the

applicant/ accused.       For repayment of the said amount, the

applicant/ accused issued cheque bearing No.240907 dated

15.12.2017 for an amount of Rs. 12,00,000/-, drawn on the

Gajanand Maharaj Urban Co-operative Bank, Bhokardan Branch.

On presentation, the said cheque was dishonoured on the ground

of insufficient funds. Consequently, a statutory notice was issued,

and upon failure to pay the amount within the stipulated period, a

complaint under Section 138 of the Negotiable Instruments Act

was filed, which was registered as S.S.C. No. 543 of 2018.


3.           During the trial, the complainant examined three

witnesses, including himself (PW-1), his son Rameshwar (PW-2),

and chartered accountant Ashishkumar Kabra (PW-3), and filed

his   affidavit-in-lieu    of   examination-in-chief    along       with

documentary evidence. The statement of the accused under

Section 313 of the CrPC was recorded, wherein he took the
                               *4*                  revn338o23


defence of total denial, stating that he had never taken loan from

the complainant. According to the accused, he had issued several

blank signed cheques and other documents to the complainant in

connection with financial transactions, and one such cheque had

been misused by the respondent-complainant. He had obtained

the loan from Neta Agro Financial Institution and in pursuance to

the same, he had given blank signed cheques to the respondent-

complainant, out of which one cheque is misused by the

respondent-complainant.


4.          The learned JMFC, after considering the evidence

on record, convicted the applicant under Section 138 of the

Negotiable Instruments Act and sentenced him as aforesaid. The

learned Judicial Magistrate First Class held that the applicant has

issued the cheque in discharge of legally enforceable debt and

held the applicant guilty for the offence punishable under Section

138 of the Negotiable Instruments Act vide judgment and order

dated 08.09.2022.


5.          Being aggrieved by the said decision, the applicant

challenged the said conviction before the learned Sessions Judge

in Criminal Appeal No. 30 of 2022. The learned Sessions Judge,
                                *5*                revn338o23


after hearing the learned counsel for the parties, maintained the

order of sentence passed by the learned JMFC and accordingly

dismissed the appeal filed by the applicant vide its impugned

judgment and order dated 27.10.2023. Hence, the present

revision application.


6.           Mr. Gangakhedkar, the learned counsel for the

applicant/ accused, submits that the learned courts below have

not considered that the amount in question could not be called as

legally enforceable debt. The said amount is not reflected in the

Income Tax returns filed by the complainant. As the said amount

is unaccounted, therefore, it is not appropriate to hold that the

said cheque was issued towards the discharge of liability to pay

the legally enforceable debt.


7.           Mr. Gangakhedkar took this Court to the documents

pertaining to the Income Tax returns filed by the respondent-

complainant for the year 2015-2016. The said Income Tax returns

of the complainant and his son disclose no such amount alleged

to be given as hand loan to the applicant-accused. He further

submitted that the obligation is on the prosecution which can be

discharged with the help of presumption of law and/or the facts
                               *6*                  revn338o23


unless the accused adduces the evidence showing the reasonable

possibility of non-existence of presumed fact. According to him,

the complainant failed to prove his financial capacity coupled

with the existence of debt having reflected in the Income Tax

returns. He further vehemently argued that the learned courts

below erred in holding that accused has not rebutted the

presumption under Section 139 of the Act.


8.          Mr. Gangakhedkar also submitted that the evidence

brought by the prosecution on record is itself not cogent and

satisfactory. The prosecution has, therefore, failed to prove that

the applicant-accused has issued the cheque in discharge of any

liability. He further submitted that the version of the complainant

PW-1 and his son PW-2 creates doubt as their seeds and fertilizer

shop was closed in the next financial year i.e. 2017-18. As such,

the complainant cannot be said to have handed over such huge

amount in cash in absence of any documentary evidence. The

said cash amount was handed over that too without executing any

agreement, cannot be believed. Therefore, such evidence does

not inspire confidence. The learned lower courts have assumed

and presumed that the existence of legally enforceable debt is
                               *7*                  revn338o23


also one of the presumptions incorporated under Section 139 of

the Negotiable Instruments Act. The said view is totally incorrect

as the existence of legally recoverable debt is not a matter of

presumption under Section 139 of the Act. It merely raises

presumption in favour of holder of the cheque that same has been

issued for discharge of any debt or other liability. As to the

source of the amount of Rupees 12 Lakhs and the same is not

reflecting in the Income Tax returns, the applicant cannot be held

responsible or liable to pay the said amount. He, therefore,

prayed for quashing and setting aside the impugned judgment

and order passed by the subordinate courts.


9.          Per contra, Mr. Somani, learned counsel for the

complainant, strongly opposed the instant revision application

and the submissions of Mr. Gangakhedkar. According to him, the

learned courts below have properly appreciated the evidence

brought before it and accordingly held the applicant-accused

responsible and liable for the payment of cheque and also

convicted him for the offence punishable under Section 138 of

the Negotiable Instruments Act. During the course of hearing, he

also took this Court through the Income Tax returns filed for the
                                *8*                   revn338o23


year 2017-18 in which it is disclosed that the hand loan of

Rupees 12 Lakhs was given to the applicant/ accused. The

balance sheet discloses the amount which is given to the

applicant/ accused.


10.          Mr. Somani submits that the learned counsel for the

applicant is misleading this Court as he is not pointing out the

evidence in proper manner and relying upon the Income Tax

returns of the year 2015-16 when the cheque itself is given on

date 15.12.2017, therefore, the amount of Rupees 12 Lakhs will

naturally reflect in the said financial year i.e. 2017-18. He further

submitted that the applicant is trying to take the defence only on

the ground that the complainant was not in financial position to

lend such huge amount to the applicant/ accused. Apart from this,

the applicant has not raised any other ground challenging the

impugned conviction orders.


11.          Mr. Somani further submitted that though the

applicant is relying upon the story that he had obtained the loan

from one private Neta Financial Institution, however, nobody

from the said firm came to be examined. So also, no document

from the said financial institution regarding the said loan has
                               *9*                 revn338o23


been put on record. Therefore, the story put forth by the

applicant/ accused is not probable and as such, the applicant/

accused failed to rebut the presumption. As such, the learned

courts below have rightly convicted the applicant/ accused on

proper consideration of the evidence before it. He, therefore,

submits that there is no error or mistake in the judgments

delivered by the learned subordinate courts and same are required

to be maintained and as such, the instant Criminal Revision

Application is liable to be dismissed.


12.          The learned APP strongly supported the concurrent

findings recorded by both the courts below and also supported

the argument of the learned advocate for the complainant. It was

contended that the signature on the cheque and the issuance of

the cheque from the bank account maintained by the applicant

are not disputed. Once the execution of the cheque is admitted,

the statutory presumptions under Sections 118 and 139 of the

Negotiable Instruments Act operate in favour of the holder of the

cheque, and the applicant miserably failed to rebut the said

presumptions by bringing any cogent or probable evidence on

record. Both the trial Court and the appellate Court have
                                *10*                  revn338o23


meticulously appreciated the oral and documentary evidence, and

there is no perversity or illegality in the impugned judgments

warranting interference in revisional jurisdiction.


13.          After hearing the arguments of the learned counsel

for the respective parties and going through the record placed

before this Court, it is clear that the respondent-complainant has

issued cheque on 15.12.2017 of amount of Rupees 12 Lakhs to

the applicant-accused. According to the respondent-complainant,

he had given the hand loan of Rupees 12 Lakhs in the month of

September 2017 for the period of three months. The applicant-

accused was supposed to refund the said amount within period of

three months. Since he could not refund the said amount,

therefore the applicant-accused issued cheque dated 15.12.2017

of Rupees 12 Lakhs to the respondent-complainant. After

presenting the said cheque, same was dishonoured. Therefore, the

respondent-complainant issued statutory notice to the applicant-

accused. Since the applicant-accused could not pay the aforesaid

amount,    therefore,   the   respondent-complainant        instituted

complaint under Section 138 of the Negotiable Instruments Act

before the learned Judicial Magistrate First Class.
                                *11*                     revn338o23


14.          The    evidence    brought    by      the      respondent-

complainant before the learned Trial Court discloses that he has

issued the cheque since the applicant-accused failed to repay the

loan amount. The books of account as reflecting in the Income

Tax returns of the respondent-complainant discloses the entry of

Rupees 12 Lakhs. Naturally, the said entry will occur in the next

financial year or in the same financial year and therefore, it

occurred in the financial year of 2017-18. Therefore, the

submissions of learned counsel for the applicant that the said

amount is not disclosed in the year 2016-17 is not at all correct.


15.          The    applicant-accused     having     not       examined

anybody from the Neta Farm Agro Financial Institution to prove

that the respondent-complainant was working as agent of the said

firm / institution and since he had obtained the loan amount from

the said firm, he had issued certain cheques to the respondent-

complainant and out of the said cheques, one of the cheque has

been misused by the respondent-complainant. There is also

nothing or record to suggest that the applicant-accused has made

complaint as regards misusing the cheques. The applicant is

required to rebut the presumption on the basis of preponderance
                               *12*                 revn338o23


of probabilities. He deposes that he has given 15 blank cheques

and six bond papers and certain documents to the respondent-

complainant. It is alleged that the respondent-complainant has

misused the said cheque. Sections 138 and 139 of the Negotiable

Instruments Act make it mandatory for the Court that unless the

contrary is proved, it has to be presumed that the holder of the

cheque is responsible for discharge in whole or in part of debt or

other liability of the drawer. The said presumption admittedly is

not rebutted by the applicant. His defence does not appear to be

probable that 15 blank cheques were given to the respondent-

complainant. The applicant has failed to discharge the initial

presumption by raising probable and acceptable defence.


16.         After reading both the judgments passed by the

learned subordinate courts, I find that there is no illegality or

even remote irregularity to exercise jurisdiction under Section

397 of the CrPC. Though Mr. Gangakhedkar relied upon the

judgments in Devender Kumar vs. Khem Chand, 2016(1) DCR

147 (Delhi High Court), Sajidur Rehman vs. Rajiv Kashyap and

others, 2017 (3) DCR 461 (Delhi High Court), Basalingappa vs.

Mudibasappa, (2019) 5 SCC 418 and M/s Rajco Steel
                                *13*                   revn338o23


Enterprises vs. Kavita Saraff and another, AIR 2024 SC 2105,

however, the ratio of the said judgments cannot be made

applicable to the instant case for the simple reason that the record

of the instant matter prima facie discloses the offence under

Section 138 of the Negotiable Instruments Act. Moreover, the

facts and circumstances of the said cases are totally different and

therefore, the ratio laid down in the said judgments cannot be

made applicable to the case in hand.


17.          Mr. Somani has rightly placed reliance upon the

judgment of this Court in Krishna P. Morajkar vs. Joe Ferrao,

AIR BOMR 2013 5 294 : ALL MR (CRI) 2013 0 4129 , to

contend that even if the amount is not shown in the income tax

returns, one cannot jump to the conclusion that the presumption

under Section 139 stands rebutted.


18.          It is a well-settled principle of law that the revisional

jurisdiction under Section 397 read with Section 401 of the CrPC

is supervisory in nature and is restricted to correcting manifest

errors of law, gross procedural irregularities or perversity

resulting in a miscarriage of justice. This Court does not act as a

second appellate court to re-weigh the evidence where two views
                               *14*                 revn338o23


are possible or where the concurrent findings of the courts below

are soundly based on the material on record. The applicant has

failed to point out any perversity or patent illegality in the

appreciation of evidence by the courts below. In the case in hand,

it is nowhere found that the learned courts below have committed

any error or mistake while passing the impugned judgments and

orders. Hence, I pass the following order:-


                             ORDER


      (a)     The Criminal Revision Application is dismissed.

      (b)     Both the Judgments and Orders passed by the Courts

below, are confirmed.

      (c)     The applicant/ accused shall surrender before the

Trial Court within four weeks from today to undergo the

remaining sentence, if any, failing which the Trial Court shall

take appropriate steps in accordance with law to execute the

sentence.

      (d)     Record and proceedings be sent back to the Trial

Court along with a copy of this judgment for information and

compliance.
                                     *15*                 revn338o23


      19.         In view of dismissal of the Criminal Revision

      Application filed by the applicant/ accused, Criminal Application

      No.296/2026 filed by the complainant is allowed. The

      complainant is permitted to withdraw the amount deposited by

      the accused in this Court along with accrued interest.




kps                                   (SUSHIL M. GHODESWAR, J.)