JAFAR BABU SHAIKHversusTHE STATE OF MAHARASHTRA AND ANR.

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                                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        CRIMINAL APPELLATE JURISDICTION

                                  CRIMINAL REVISION APPLICATION NO.36 OF 2015

                      Jafar Babu Shaikh,                                )
NAVNATH               Age 51 Years, Occupation : Business               )
SITARAM
WAGHMARE              R/at New Era Co-operative Housing Society,)       ) ...Applicant
                      Plot No.40, Survey No. 588/2/3, Flat No.4,        ) ( Orig. Accused/
Digitally signed by
NAVNATH               Bibwewadi, Pune- 411 037.                         ) Appellant )
SITARAM
WAGHMARE                         Versus
Date: 2026.09.24
18:17:11 +0530        1. The State of Maharashtra                       )
                                                                        )
                      2.Abdul Bari Shaikh,                              )
                      Adult, Occupation: Business                       )
                      R/at ChandipuraPeth, Tal. Junnar, Dist: Pune      ) ...Respondents
                                                       ****
                      Mr. Sudyumna Nargolkar a/w Ms. Shreevidya Nargolkar for the
                      Applicant.
                      Ms. Rashmi S. Tendulkar, APP for Respondent No.1/State.
                      Mr. Sachin Thorat for Respondent No.2.
                                                       CORAM : M.M. SATHAYE, J.
                                              RESERVED ON       : 06th MAY, 2026
                                            PRONOUNCED ON : 23rd SEPTEMBER, 2026.
                      JUDGMENT :


                      1.      Invoking Section 397 read with Section 401 of the Code of
                      Criminal Procedure, 1973 ('CrPC' for short), the Revision Applicant (‘the
                      Accused’ for short), in proceedings arising out of Section 138 of the
                      Negotiable Instruments Act, 1881 (‘NI Act’, for short), is challenging
                      Judgment and Order dated 24.12.2014 passed in Criminal Appeal
                      No.61/2014 by the Learned Additional Sessions Judge, Khed,
                      Rajgurunagar, Pune dismissing the appeal and confirming the Judgment
                      and Order of conviction dated 26.04.2012 passed by Judicial Magistrate
                      First Class, Junnar, in S.C.C. No. 303 of 2008. The net effect of the
                      impugned orders is that the Applicant is convicted for offence

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punishable under Section 138 of NI Act and is sentenced to suffer
simple imprisonment (SI) of 6 months and pay compensation of
Rs.4,70,250/-and in default thereof, to undergo SI of 2 months.

                              BRIEF BACKGROUND

2.       According to the Complainant, he had friendly relationship with
the Accused. The Accused was in need of money for his business,
therefore, he had demanded Rs. 4,70,250/- from the Complainant as
hand loan and agreed to repay it within 4 to 5 months. The
Complainant paid Rs. 4,70,250/- to the Accused. After expiry of said
period, the Complainant demanded the money back, when the Accused
issued a cheque dated 08.07.2008 for said amount to complainant.
When the Complainant deposited the subject cheque in his bank, it
bounced and returned unpaid for the reason ‘Insufficient funds’. On
21.08.2008, the Complainant issued legal notice through his advocate
to the Accused and demanded amount, which was received by the
Accused on 02.09.2008, but the Accused neither replied to the notice
nor paid amount of cheque to the Complainant. As a result, complaint is
filed.

3.       The defence of the Applicant as emerging from the cross-
examination and from the statement under Section 313 of CrPC is that
he had issued subject cheque to Reddy Investment Finance Company
and he is not aware as to how the Complainant had received subject
cheque. According to the Accused, the Complainant filled in the subject
cheque and falsely implicated the Accused. The Accused has denied any
liability towards the Complainant.

4.       In order to substantiate the charge, the Complainant examined
himself and Mr. Nizamkhan Yakub Inamdar. The complainant had also


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produced documents on record such as subject cheque, bank memos,
postal acknowledgment alongwith receipt. UPC receipt and office copy
of demand notice. The Accused examined himself in support of his
defence.

5.      The learned Magistrate who heard and tried the criminal case,
convicted the Applicant by order dated 26.04.2012. The Applicant filed
the said appeal which got dismissed under impugned order.

6.      In these circumstances, the Applicant filed present revision
application. Record shows that under the order of the Court on
29.01.2015, the Applicant has deposited Rs. 1,18,000/- as against
compensation amount of Rs. 4,70,250/- and view thereof, Applicant
was released on Bail. Record further shows that, Rule was granted
(admitting the revision) on 17.06.2015.

                                  SUBMISSIONS

7.      Learned counsel for the Revision Applicant submitted as under:

7.1.        That the presumption under Section 139 of the NI Act is
rebutted as a result of various statements made by Respondent No.2 -
Complainant himself.

7.2.        That the alleged loan transaction is suspicious because though
the amount was given allegedly for upgrading the garage however, odd
amount has been allegedly lent (Rs. 4,70,250/-). That exact amount
required for upgrading of garage could not have been available unless
upgrade was complete. That Respondent No.2 -Complainant has not
given any source of funds. That no details such as names of partners or
place of business is given by Respondent No.2-Complainant. That no
independent PAN Number, Income Tax record is available, no books of


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account are maintained and there is no money lending licence available
with Respondent No.2.

7.3.        That date of advancing loan is not mentioned and there is no
document or deed in support of loan transaction.

7.4.        That according to Revision Applicant, the cheque was given to
one Mr. Pedri Mannar Reddy of 'Reddy Investment Finance Company'
and it is not known how the Respondent No. 2 got the said cheque.

7.5.        That Respondent No.2- Complainant stated that he earns
Rs.5000/- to Rs.8,000/-p.m. and his expenses are about Rs. 3,000/- to
Rs.4,000/- p.m., and has stated that he has conducted the business for 8
years. Going by his calculations, for advancing loan of Rs.4,70,250/- the
Complainant would be required to give away his entire earning of 10
years which is not probable at all.

7.6.        That Respondent No.2-Complainant has admitted that he does
not know the location of garage or residence of the Accused and had no
relationship with the Accused. Therefore, the theory of hand loan is not
believable at all.

7.7.        That the Respondent No.2 has given fatal admissions about
handwriting on the cheque and return memo.

7.8.        That in view of these statements and admissions, presumption
is sufficiently rebutted that the impugned order is arbitrary and passed
in ignorance of evidence on record. He relied on following judgments in
support of his case:

        (i) Basalingappa Vs. Mudibasappa (2019) 5 SCC 418.

        (ii) Dattatraya Vs. Sharanappa (2024) 8 SCC 573.


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        (iii) Mahendra Gulabchand Kochar Vs. Sakharam Ramdas Patil
        2009 SCC OnLine Bom 493.

8.         On the other hand, learned counsel for the Respondent No.2 -
Complainant submitted as under:

8.1.        That there is presumption in favour of the Complainant being
holder of the cheque which is not sufficiently rebutted.

8.2.        That   nobody   from   alleged   Reddy     Investment            Finance
Company or Mr. Pedri Mannar Reddy has been examined by the
Accused to rebut the presumption.

8.3.        That demand notice has not been replied.

8.4.        That Complainant has examined witness indicating that the
efforts for settlement was undertaken and if there was no monetary
transaction, then there is no reason for settlement efforts being made.

8.5.        That there is no reason to interfere in concurrent finding and
evidence may not be re-appreciated.

                         REASONS AND CONCLUSIONS

9.          I have considered rival submissions and perused the record.

10.         Admittedly, according to the Complainant, the loan has been
advanced in cash and demand notice has not been replied by the
Accused.

11.         So far as the reliance placed on Basalingappa (Supra),
Dattatraya (Supra) and Mahendra Gulabchand Kochar (Supra) are
concerned there is no doubt that according to settled position of law,
the Accused in proceeding under Section 138 of the NI Act need not


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enter witness box and he can use the evidence led by the Complainant
himself to rebut the presumption. It is also settled position of law that
presumption under Section 139 of the NI Act, is rebuttable and the
consideration is based on preponderance of probabilities.

12.         The Respondent No.2 -Complainant has examined Mr.
Nizamkhan as CW-2 who has stated that he knows both Complainant as
well as the Accused. He has stated that brother of the Accused
(Rajubhai) is known to him and he had approached the said witness for
settlement about the dispute arising out of the said cheque and the
Accused had informed about the transaction and had offered to pay Rs.
8,000/- p.m. for settlement. This witness has also stated that on the
request of the Accused, he had tried to settle the dispute between the
parties. Suggestions given to this witness about not knowing the
Accused or his brother are denied. Even in cross-examination, this
witness has mentioned that the Complainant had informed him about
the transaction being of Rs. 4 to 4.5 Lakh. In cross-examination, he has
maintained that he knows brother of the Accused for 15 years and
having close relation with him.

13.         Admittedly, the Revision Applicant/ Accused has not examined
Mr. Pedri Mannar Reddy or anybody on behalf of Reddy Investment
Finance Company, to whom the cheque was allegedly given. Therefore,
the said defence is of no consequence as it is only based on interested
words of the Accused.

14.         The Revision Applicant/Accused has admitted that his in-laws’
place is at Chandipura Peth, Village-Junnar, District- Pune and
Respondent No.2- Complainant is also permanent resident of the said
area. He has also admitted that he has received the demand notice sent



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by Respondent No.2-Complainant but he has not replied to the same.
Parties seem to have common connection from Chandipura Peth, Village
Junnar and therefore, it is not believable that the Complainant and the
Accused did not know each other.

15.         So far as the argument that the Complainant has admitted that
he does not file income tax returns or pay income tax and therefore
amount advanced by such person cannot be considered as legal debt,
the said argument is without merit, in view of Prakash Madhukarrao
Desai Vs. Dattatraya Sheshrao Desai (2023) 5 Mh.L.J. 709, where
Division Bench of this Court has clearly held as under :

                   “18. In view of the aforesaid discussion, it is held
                   that a transaction not reflected in the books of
                   account and/or Income-tax returns of the holder of the
                   cheque in due course can be permitted to be enforced
                   by instituting proceedings under section 138 of the Act
                   of 1881 in view of the presumption under section 139
                   of the Act of 1881 that such cheque was issued by the
                   drawer for the discharge of any debt or other liability,
                   execution of the cheque being admitted. Violation of
                   section 269SS and/or section 271AAD of the Act of
                   1961 would not render the transaction unenforceable
                   under section 138 of the Act of 1881.”

                                                      (emphasis supplied)




16.                Considering the material on record, the presumption in
favour of Respondent No.2/Complainant is not sufficiently rebutted.

17.                So far as the aspect of financial capacity of Respondent


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No.2/ Complainant is concerned, it is important to note that onus is not
on the Complainant ‘at the threshold’ to prove his financial capacity or
wherewithal to make the payment. Only if objection is raised that
Complainant is not in financial position, then the Complainant will be
required to bring material before the Court. Useful reference can be
made to paragraph 22 of Ashok Singh Vs. State of Uttar Pradesh 2025
SCC OnLine SC 706 where Hon’ble Supreme Court has observed as
under:

                   "22. The High Court while allowing the criminal
                   revision has primarily proceeded on the presumption
                   that it was obligatory on the part of the complainant
                   to establish his case on the basis of evidence by giving
                   the details of the bank account as well as the date and
                   time of the withdrawal of the said amount which was
                   given to the accused and also the date and time of the
                   payment made to the accused, including the date and
                   time of receiving of the cheque, which has not been
                   done    in   the    present    case.   Pausing          here,        such
                   presumption on the complainant, by the High Court,
                   appears to be erroneous. The onus is not on the
                   complainant        at   the    threshold        to       prove        his
                   capacity/financial wherewithal to make the payment in
                   discharge of which the cheque is alleged to have been
                   issued in his favour. Only if an objection is raised that
                   the complainant was not in a financial position to pay
                   the amount so claimed by him to have been given as
                   a loan to the accused, only then the complainant
                   would have to bring before the Court cogent material
                   to indicate that he had the financial capacity and had
                   actually advanced the amount in question by way of
                   loan.   In   the   case   at   hand,     the      appellant          had


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                    categorically stated in his deposition and reiterated in
                    the cross-examination that he had withdrawn the
                    amount from the bank in Faizabad (Typed Copy of his
                    deposition in the paperbook wrongly mentions this as
                    'Firozabad"). The Court ought not to have summarily
                    rejected such stand, more so when respondent no. 2
                    did not make any serious attempt to dispel/negate
                    such stand/statement of the appellant. Thus, on the
                    one hand, the statement made before the Court, both
                    in examination-in-chief and cross-examination, by the
                    appellant with regard to withdrawing the money from
                    the bank for giving it to the accused has been
                    disbelieved whereas the argument on behalf of the
                    accused that he had not received any payment of any
                    loan amount has been accepted."

                                                    (emphasis supplied)




17.1.              Further in Tedhi Singh Vs. Narayan Dass Mahant (2022) 6
SCC 735 the Hon'ble Supreme Court has held that proceedings under
Section 138 of the NI Act is not a civil suit and unless a case is set up in
the reply notice by the Accused that complainant did not have financial
capacity or wherewithal, it cannot be expected from the complainant to
lead evidence about financial capacity. Useful reference can be made to
Paragraph No. 10 of the Tedhi Singh (Supra).

                    "10. The trial court and the first appellate court have
                    noted that in the case under Section 138 of the NI Act
                    the complainant need not show in the first instance
                    that he had the capacity. The proceedings under
                    Section 138 of the NI Act is not a civil suit. At the


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                    time, when the complainant gives his evidence,
                    unless a case is set up in the reply notice to the
                    statutory notice sent, that the complainant did not
                    have the wherewithal, it cannot be expected of the
                    complainant to initially lead evidence to show that he
                    had the financial capacity. To that extent, the courts
                    in our view were right in holding on those lines.
                    However, the accused has the right to demonstrate
                    that the complainant in a particular case did not have
                    the capacity and therefore, the case of the accused is
                    acceptable     which    he   can     do       by       producing
                    independent materials, namely, by examining his
                    witnesses and producing documents. It is also open to
                    him to establish the very same aspect by pointing to
                    the materials produced by the complainant himself.
                    He can further, more importantly. achieve this result
                    through the cross examination of the witnesses of the
                    complainant. Ultimately, it becomes the duty of the
                    courts to consider carefully and appreciate the totality
                    of the evidence and then come to a conclusion
                    whether in the given case, the accused has shown
                    that the case of the complainant is in peril for the
                    reason that the accused has established a probable
                    defence."

                                                    (emphasis supplied)




18.                In the present case, admittedly, the Revision Applicant has
not even replied to the demand notice. As such there is no question of
any case being set up about the financial capacity. In that view of the
matter, the argument of learned counsel for the Revision Applicant


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about     lack of financial capacity cannot be considered in revisional
jurisdiction. Also in this respect, it is material to note that the concerned
Magistrate in its judgment has held that the Complainant has produced
withdrawal receipts of recurring deposit which are on record at Exh.58
to 61. Though a feeble attempt was made by learned counsel for the
Revision Applicant that said receipts are not produced, such omnibus
argument can not be entertained in the teeth of exhibit numbers
recorded by the Magistrate.

19.                Remaining   arguments,    if   any,     requesting              detail
consideration of evidence on record would amount to re-appreciation of
evidence for coming to contrary finding, which is not permitted in
revisional jurisdiction, as held by the Hon’ble Supreme Court in State
Vs. Manimaran (2019) 13 SCC 670, as under:

                    "16. As held in State of Kerala V. Puttumana Illath
                    Jathavedan Namboodiri (1999) 2 SCC 452, ordinarily
                    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 by the Sessions Court in appeal. When the courts
                    below recorded the concurrent findings of fact, in our
                    view, the High Court was not right in interfering with
                    the concurrent findings of fact arrived at by the
                    courts below and the impugned order cannot be
                    sustained."
                                                    (emphasis supplied)

 20.               In the aforesaid facts and circumstances and for reasons
 indicated above, there in no reason to interfere.



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  21.              Criminal Revision Application is dismissed. Rule is
  discharged.

  22.              Respondent No. 2 / Complainant is at liberty to withdraw
  the amount of Rs. 1,18,000/- with accrued interest, if any, deposited
  by the Applicant in concerned Sessions Court, Khed, Rajgurunagar,
  District- Pune.

  23.         Applicant’s bail-bond / surety, if any, stand canceled.
  Applicant is given 4 weeks’ time to surrender before the concerned
  police station.




                                                 (M. M. SATHAYE J)




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