NITIN VISHWASRAO DESHMUKHversusTHE STATE OF MAHARASHTRA AND ANOTHER

2026:BHC-AUG:41399


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                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 BENCH AT AURANGABAD

                      CRIMINAL REVISION APPLICATION NO.64 OF 2026

                                      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

                 11/02/2026, passed by the learned Additional Sessions Judge, Vaijapur,

                 District Aurangabad, in Criminal Appeal No.02/2022. Vide said

                 judgment, the learned Additional Sessions Judge dismissed the appeal,

                 thereby confirming the conviction order dated 23/02/2021, passed by

                 the learned 2nd Judicial Magistrate First Class, Vaijapur, in S.C.C.

                 Number 448,2013. The learned 2nd Judicial Magistrate First Class,

                 Vaijapur, vide said judgment dated 23/02/2021, convicted the applicant

                 for the offence punishable under Section 138 of Negotiable

                 Instruments Act.
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2.          Respondent No.2 is the original complainant, who had

filed a complaint against the applicant, which came to be registered as

S.C.C. No.448/2013 for the offence punishable under Section 138 of

the Negotiable Instruments Act, 1881. According to respondent No.2/

complainant, he had given a hand loan of Rs.3,35,000 to the

applicant/accused on 06/08/2011. The applicant/accused had given an

undertaking to repay the said hand loan on or before 15/08/2012.

Since the accused failed to repay the said amount on demand, on

26/02/2013, he issued cheque bearing Cheque No.648565, for an

amount of Rs. 1,75,000 and also on 20/03/2013, another cheque

bearing Cheque No.648569 for an amount of Rs.1,60,000. Both the

cheques were drawn on Aurangabad District Central Co-operative

Bank Limited, Branch Shivur. Both the cheques were presented by the

respondent/complainant, however, they were returned with an

endorsement "Funds Insufficient" on 10/04/2013 and 09/04/2013. The

respondent/complainant, therefore, issued a statutory notice on

26/04/2013. Since the applicant/accused has not replied to the said

notice, the respondent/complainant instituted the above complaint

before the learned Judicial Magistrate First Class against the applicant

for the offence punishable under Section 138 of Negotiable

Instruments Act.
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3.           The learned Judicial Magistrate First Class, vide his

judgment and order dated 23/02/2021, convicted the applicant/accused

for the offence punishable under Section 138 and sentenced him to

suffer three months simple imprisonment and a fine of Rs.6,70,000/-

(twice the two-cheques amount i.e.Rs. 3,35,000/-), in default to pay

fine, to suffer two months simple imprisonment.


4.           Being aggrieved by the judgment and order of the learned

Judicial Magistrate First Class, the applicant has filed Criminal Appeal

No.02/2022 before the learned Additional Sessions Judge, Vaijapur.

The learned Additional Sessions Judge, Vaijapur dismissed the said

appeal on 11/02/2026 and confirmed the judgment of the learned

Judicial Magistrate First Class, Vaijapur.

             Therefore, being aggrieved by the two concurrent

findings, the applicant has approached this Court under Section 397 of

Code of Criminal Procedure.


5.           Heard Mrs. Chincholkar, learned Advocate for the

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

Kasliwal, learned Advocate for respondent No.2.


6.           Learned Advocate for the applicant submits that, both the

learned lower Courts mis-appreciated the evidence on record. The
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judgments delivered by the Subordinate Courts are erroneous and

perverse. According to her, the impugned judgments are based upon

unsustainable findings, and the same have been passed without

considering the evidence brought before the Court. According to her,

the applicant had taken a hand loan of Rs. 30,000/- from

respondent/complainant, and to repay the said amount, he had given

three blank cheques by signing as security towards the hand loan of

Rs.30,000. The said cheques have been misused by the present

respondent/complainant. She submits that, the complainant misused

the blank signed cheques and blank signed Rs.100/- stamp paper given

for a legal debt of Rs.30,000/- only.


7.             The learned Advocate for the applicant further submits

that the complainant virtually failed to establish that the cheques were

issued in discharge of the payment of a legally enforceable debt. She

further submits that the applicant had already paid Rs.30,000/- to the

respondent/complainant. Thus, according to her, there was no question

of issuing any cheque towards the repayment of the hand loan amount.



8.             In support of her submissions, learned Advocate Mrs

Chincholkar for the applicant places reliance on the following

judgments :-
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      (A)    K. Prakashan Vs. P. K. Surenderan, (2008) 1 SCC 258;

      (B)    Kulvinder Singh Vs. Kafeel Ahmed, dated 04/01/2013, in

      Criminal L.P. No.478/2011 (High Court of Delhi) AD(DEL)-

      2013-2-81;

      (C)    Vipul Kumar Gupta Vs. Vipin Gupta, 2012 SCC OnLine

      Del 4384;

      (D)    Basalingappa Vs. Mudibasappa, 2019 AIR(SC) 1983 and

      (E)    K. S. Ranganatha Vs. Vittal Shetty, 2021 DGLS(SC) 912.


9.           Accordingly, learned Advocate for applicant prays for

considering the evidence brought before the learned lower Courts

which they have failed to consider the same in proper perspective, and

thus, prays for allowing the instant revision application.


10.          Per contra, Mr. Kasliwal, learned Advocate for the

respondent/complainant vehemently opposes the instant revision

application. According to him, both the Courts below have considered

the evidence in proper perspective. The complainant has proved that

he has received the cheque towards the recovery of the amount of a

legally enforceable debt. It has also been proved that he had advanced

the loan amount of Rs.3,35,000/- to the applicant/accused.          For

returning the said amount, the applicant had issued two cheques to the
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respondent/complainant. Despite various requests, the applicant failed

to pay the aforesaid hand loan amount. Therefore, the accused had

issued two cheques for the payment of the aforesaid hand loan amount.

The   applicant     had   also   issued   an   undertaking    to   the

respondent/complainant on stamp paper for repaying the aforesaid

amount. He, therefore, submits that the learned Trial Court as well as

the Appellate Court have rightly considered the provisions of law, and,

as such, committed no mistake in holding that the applicant has

committed a crime for the offence punishable under Section 138 of the

Negotiable Instruments Act.


11.           To buttress his submissions Mr Kasliwal places reliance

on the following judgments :-

      (A)     State of Kerala Vs. Puttumana IIIath Jathavedan

      Namboodiri Etc., 1999 ALL MR (Cri) 517;

      (B)     Kishan Rao Vs. Shankargouda, 2018 ALL SCR (Cri)

      1197;

      (C)     Johar & ors. Vs. Mangal Prasad & Anr., 2008 ALL SCR

      704;

      (D)     B. M. Basavaraj Vs. Shrinivas S. Datta, 2016 DGLS(SC)

      770;
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      (E)    M/s Kalamani Tex Vs. P. Balasubramanian, (2021) 1

      KCCR 545(SC);

      (F)    Prakash Madhukarrao Desai Vs. Dattatraya Sheshrao

      Desai, AIRONLINE 2023 BOM 1735;

      (G)    D. K. Chandel VS. M/;s Wockhardt Ltd., AIRONLINE

      2020 SC 469;

      (H)    Rajesh Jain VS. Ajay Singh, AIRONLINE 2023 SC 807;

      (I)    Bir Singh Vs. Mukesh Kumar, 2019 DGLS(SC) 182; and

      (J)    Rangappa Vs. Mohan, 2010 DGLS(SC) 1051.


12.          Thus, according to learned Advocate for respondent

No.2/complainant, both the judgments are correct and proper and

requires no interference by this Court. He, therefore, prays for

dismissal of the instant revision application.


13.          With the assistance of learned Advocates for the rival

parties, I have perused the record. After going through the record, it is

found that both the Courts have given the findings that the complainant

proved that the applicant/accused drew a cheque on the account

maintained by him in a bank, and that the cheque issued to him by the

applicant is returned unpaid with the remark of "Funds Insufficient".

The complainant also proved that he had sent the demand notice on
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26/04/2013 to the accused, thereby claiming the cheque amount. The

said notice was properly sent to the accused. The complainant has also

proved that the applicant/accused failed to make payment of the

cheque amount of Rs.3,35,000/-.



14.         Both the Courts have recorded the finding that the

respondent/complainant proved the terms of transaction, i.e. a legally

enforceable debt with the accused, and further that the accused has not

discharged the burden shifted on him on a standard of preponderance

of probabilities. Accordingly, the Subordinate Courts have held that

the applicant has committed an offence punishable under Section 138

of the Negotiable Instruments Act, and therefore, he rightly came to be

convicted vide the impugned orders.

15.         As    regards    the     issue,    as    to   whether     the

respondent/complainant had proved that there is a legally enforceable

debt   on   the   applicant/accused,     it   is    observed   that   the

respondent/complainant had given Rs.3,35,000/- as a hand loan to the

accused. In order to repay the said hand loan, the applicant/accused

had given him two cheques. Thus, there is a legally enforceable debt

on the accused. The defence of the applicant/accused that he took a

hand loan of Rs 30,000/- from the complainant, and as part of security,
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handed over blank signed cheques and a signed blank Rs.100/- stamp

paper to the complainant. His defence is that he had already repaid the

said amount and only interest over it remained to be paid. Therefore,

according to him, claims that there is no legally enforceable debt.


16.         As regards the aforesaid submissions, the date of issuance

of the loan has been categorically stated by the complainant. Even the

source of income of the complainant is also established. It is useful to

refer to the statutory provisions under Section 118 and Section 139 of

the Negotiable Instruments Act, which read thus :-


      “118. Presumptions as to negotiable instruments.—

      Until the contrary is proved, the following presumptions shall be
      made:—
      (a)of consideration —that every negotiable instrument was made or
      drawn for consideration, and that every such instrument, when it has
      been accepted, indorsed, negotiated or transferred, was accepted,
      indorsed, negotiated or transferred for consideration;
      (b)as to date —that every negotiable instrument bearing a date was
      made or drawn on such date;
      (c)as to time of acceptance —that every accepted bill of exchange
      was accepted within a reasonable time after its date and before its
      maturity;
      (d)as to time of transfer —that every transfer of a negotiable
      instrument was made before its maturity;
      (e)as to order of indorsements —that the indorsements appearing
      upon a negotiable instrument were made in the order in which they
      appear thereon;
      (f)as to stamps —that a lost promissory note, bill of exchange or
      cheque was duly stamped;
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      (g)that holder is a holder in due course —that the holder of a
      negotiable instrument is a holder in due course:”



      139. Presumption in favour of holder.—
      It shall be presumed, unless the contrary is proved, that the holder of a
      cheque received the cheque of the nature referred to in section 138 for the
      discharge, in whole or in part, of any debt or other liability.”



17.          Once the signature of an accused on the cheque is

established, then there is a reverse onus on the applicant/accused,

which becomes operative. As the applicant/accused has admitted that

his signature is over the cheque, in view of the presumption under

Section 118 and Section 139 of the Act, it needs to be presumed that

the accused has issued two cheques for a legally enforceable debt. It is

also required to be presumed that the accused has given the blank

signed cheques and blank signed Rs.100/- stamp paper to the

complainant, yet, the statutory presumption cannot be obliterated.

Though the presumptions are rebuttable in nature, the same has to be

rebutted on the basis of the standard of preponderance of probability

and not mere possibility. As stated earlier, the accused failed to rebut

the burden shifted on him. It is clear that he has committed an offence

punishable under Section 138 of the Negotiable Instruments Act.
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18.         After perusing both the judgment and orders passed by the

Subordinate Courts and going through the record, it is found that, no

case is made out for interfering in the aforesaid verdicts. The scope of

the revisional Court under Section 397 read with Section 401 of Code

of Criminal Procedure is very limited. Such power of revision is

required to be exercised in cases where there is a manifest error of law

and to rectify the miscarriage of justice. However, in the case in hand,

I could not come across any ground to upset the finding given by the

subordinate Courts. In that view of the matter, the instant Criminal

Revision Application is dismissed.




                                     [SUSHIL M. GHODESWAR, J.]
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