Bombay High Court
ARUN MALLAPPA AINAPURAversusSURESH SHANKARRAO PUROHIT AND ANR.
- Disposal
- Disposed Off
Holding
Once the drawer admits issuance of the cheque and his signature, the statutory presumption under Section 139 of the Negotiable Instruments Act, 1881 arises that the cheque was issued for a legally enforceable debt or liability, and the accused's contention that the liability was only partial cannot be accepted at the pre-trial stage to stop proceedings under Section 258 CrPC; such rebuttal is a matter for trial.
Summary
Petitioner/accused issued cheque No. 131886 dated 25 October 1993 for Rs.1,13,925 in favour of Respondent No.1/complainant. The cheque was dishonoured, and Respondent No.1 filed Summary Case No. 3944 of 1994 under Section 138 of the Negotiable Instruments Act, 1881 before the JMFC, Sangli. After the complainant's examination-in-chief, the Petitioner filed an application under Section 258 CrPC seeking dismissal of the case, claiming his liability was only Rs.31,000 and not the full cheque amount. The Magistrate rejected the application on 01.12.2003, and the Sessions Court dismissed the revision on 15.06.2004. The Petitioner challenged these orders in the High Court under Article 227 of the Constitution and Section 482 CrPC. The High Court held that since the Petitioner admitted drawing the cheque and his signature, the statutory presumption under Section 139 NI Act arose that the cheque was issued for a legally enforceable debt or liability, and the Petitioner's rebuttal could only be considered at trial. Finding no perversity or illegality in the impugned orders, the High Court dismissed the writ petition; rule was discharged, with no order as to costs.
Issues considered
- Whether the proceedings in Summary Case No. 3944 of 1994 under Section 138 of the Negotiable Instruments Act, 1881 could be stopped or quashed under Section 258 CrPC at the pre-trial stage when the accused admits issuance and signature of the cheque but disputes the extent of liability.
- Whether the statutory presumption under Section 139 of the Negotiable Instruments Act, 1881 that the cheque was issued for a legally enforceable debt or liability applies, and whether it can be rebutted only during trial.
- Whether the Magistrate and the Sessions Court erred in rejecting the application under Section 258 CrPC and the criminal revision.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 258, 482
- Constitution of India — s. 227
- Negotiable Instruments Act, 1881 — s. 118, 138, 139
Subjects
- Negotiable Instruments Act
- Section 138
- Section 139
- statutory presumption
- rebuttal at trial
- Section 258 CrPC
- quashing of criminal proceedings
- legally enforceable debt
- cheque dishonour
- Article 227
- Section 482 CrPC
- pre-trial stage
Judgment
Digitally signed
by LAXMIKANT
LAXMIKANT GOPAL (2) WP-2099.04.DOCX
GOPAL CHANDAN
CHANDAN Date:
2026.08.24
14:32:17 +0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIRCUIT BENCH AT KOLHAPUR
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 2099 OF 2004
Arun Mallappa Ainapura ]
Age 47 years, Occ. Agriculturist ]
Residing at Maruti Chowk ]… Petitioner
Maruti Road, Sangli ] (Org. Accused)
Versus
1] Suresh Shankarrao Purohit ]
Age 55 years, Occ. Service ]
Residing at Mali Colony, Waranali ]
Road, Vishrambag, Sangli ]… Respondents
] (Resp. No.1 Org.
2] State of Maharashtra ] Complainant)
----
Mr. Ranjeet H. Patil i/by Mr. Kuldeep S. Patil for the Petitioner.
None for Respondent No.1.
Mr. S. H. Yadav, APP for the Respondent No.2 -State.
-------
CORAM : ASHWIN D. BHOBE, J.
DATED : 19 AUGUST 2026
ORAL JUDGEMENT:-
1. Heard, Mr. Ranjeet H. Patil, learned Advocate for the
Petitioner and Mr. S. H. Yadav, learned APP for the Respondent No.
2 – State.
1
(2) WP-2099.04.DOCX
2. By this Petition filed on 15th October 2004, under Article
227 of the Constitution of India read with Section 482 of the
Criminal Procedure Code 1973, the Petitioner has sought the
following substantive reliefs in prayer clauses (a) and (b),
reproduced verbatim:-
“(a) That the impugned order dated 15.6.2004,
passed by the Ld. Sessions Judge, Sangli in Criminal
Revision Application No.165 of 2003, and Order dated
1.12.2003, passed by the Ld. J.M.F.C. Sangli in S.C.S.
No.3944 of 1994 may be quashed and set aside
(b) That this Hon’ble Court may pass appropriate
writ, order or direction and quash and set aside all the
proceeding of Summary Criminal Case No.3944 of 1994
on the file of Ld. J.M.F.C., Sangli.”
3. The subject matter of this Petition is Summary Case No.
3944 of 1994, filed by Respondent No.1 before the Judicial
Magistrate First Class, Sangli (“Magistrate”), under Section 138 of
the Negotiable Instruments Act, 1881 (“N.I.Act”), in respect of
cheque No. 131886 dated 25 October 1993 for Rs.1,13,925/-,
issued by the Petitioner in favour of Respondent No.1.
4. Summary Case No. 3944 of 1994 was filed on 29.03.1994.
The Magistrate took cognizance and issued process against the
Petitioner. The summons were served on the Petitioner on
10.02.1995.
5. The Petitioner's plea (Exhibit-35) was recorded on
31.01.1997. After the examination-in-chief of the Respondent No.1
was over, the Petitioner filed an Application (Exhibit-38) under
Section 258 of the Criminal Procedure Code, 1973, seeking
dismissal of Summary Case No. 3944 of 1994.
2
(2) WP-2099.04.DOCX
6. By Order dated 01.12.2003, the Magistrate rejected the
Application at Exhibit-38, recording a finding that the Petitioner
had issued the cheque in discharge of a legal liability and that the
Application (Exhibit-38) lacked merit. Criminal Revision
Application No. 165 of 2003, filed against the Order dated
01.12.2003, was dismissed by the Sessions Court, Sangli (“Sessions
Court”), by Order dated 15.6.2004. The Petitioner is before this
Court against the Order dated 15.06.2004 passed in Criminal
Revision Application No. 165 of 2003 (“impugned order”).
7. The following orders passed in this Writ Petition are
reproduced below for reference:
A] Order dated 29.10.2004 :-
“The learned Counsel for the Applicant contends that even
accepting the case of the complainant as it is the legal
liability was only in respect of Rs.31,000/- and not the
entire amount for which the cheque has been drawn. If it is
so, the criminal action under Section 138 of IPC in respect
of such instrument cannot be maintainable.
Issue notice before admission, returnable after eight weeks.
Mr. B.H.Mehta, APP waives service for Respondent No.2.
Petitioner to serve remaining Respondent.
Ad-interim relief in terms of prayer clause (c).”
B] Order dated 29.09.2006 :-
“. Heard Mr. Patil for petitioner. Rule.
2. On the condition that the petitioner deposits in this Court
a sum of Rs. 31,000/- within four weeks from today,
without prejudice to his rights and contentions, ad-interim
order granted on 29th October 2004 to continue till the
hearing and final disposal of this petition, with liberty to
original complainant to apply for withdrawal of the amount
and/or vacating this order.
3
(2) WP-2099.04.DOCX
3. Needless to state that in default of compliance, ad-
interim order to stand vacated forthwith without reference
to court. Hearing expedited.”
8. Apparently, the Petitioner did not comply with the
requirement to deposit Rs.31,000/- as ordered by this Court on
29.09.2006, resulting in the order dated 22.11.2006, which reads
thus:-
“1. On 06/11/2006 time to deposit the money was
extended by two weeks. Mr. Patil states that the amount is
not deposited even in the extended period of two weeks. In
view of this, ad-interim order passed on 29/09/2006 stands
vacated. Office to communicate the Judicial Magistrate,
First Class, Sangli that the stay order passed by this Court in
Summary Case No. 3944/1994 stands vacated. Case to
proceed.”
9. Mr. Ranjeet Patil, learned Advocate for the Petitioner,
submits that the Petitioner's liability in respect of the cheque in
question, issued to Respondent No. 1, is Rs.31,000/-. To clarify, he
submits that although the cheque issued to Respondent No. 1 is for
Rs.1,13,925/-, the Petitioner's liability towards Respondent No. 1 is
limited to Rs.31,000/-, and therefore does not constitute any
legally enforceable debt or liability. Accordingly, he submits that
the proceedings bearing S.C.C. No. 3944 of 1994 should have been
stopped under Section 258 of the Criminal Procedure Code, 1973.
10. Perused the records with the assistance of the learned
Advocates for the parties.
11. The Petitioner admits that he drew the cheque for Rs.
1,13,925/- in favour of Respondent No. 1 and that his signature
appears on the cheque. Accordingly, the Court must presume that
the cheque was issued to discharge a legally enforceable debt or
liability. Thus, the essential ingredients of Section 138 of the N.I.
4
(2) WP-2099.04.DOCX
Act are duly satisfied by Respondent No. 1. The Petitioner's
rebuttal of the statutory presumption can be made only at the trial.
12. The Sessions Court, in Criminal Revision Application No.165
of 2003 and the Magistrate, in S.C.S. No.3944 of 1994, have
addressed the aforesaid issue. The Petitioner has failed to show
any perversity or illegality in the impugned order dated
15.06.2004 passed in Criminal Revision Application No.165 of
2003, which in turn upholds the Order dated 01.12.2003 in
Summary Case No. 3944 of 1994.
13. In Renuka Vs. State of Maharashtra & ors1, the Hon’ble
Supreme Court has held as under:-
“8. It is to be borne in mind that at the stage of issuance of
process by the learned Metropolitan Magistrate, what is
prima facie required to be seen is the issuance of cheque
by the drawer in favour of the complainant, its dishonour
on presentation by the payee, issuance of statutory notice
under Section 138 of the N.I. Act and filing of the
complaint within the prescribed statutory period. If the
drawer does not dispute issuance of such a cheque nor
does he deny his signature on the dishonoured cheque, the
statutory presumption as contemplated under Section 139
of the N.I. Act comes into play. As a result, the burden
would shift on the drawer of the cheque to prove that the
cheque was not issued for any legally enforceable debt or
liability. This exercise has to be undertaken during the trial
either by relying upon the material brought on record by
the complainant or by the drawer leading evidence in
rebuttal. At the stage of issuance of process, the statutory
presumption under Section 139 of the N.I. Act cannot be
dislodged in a summary manner merely by contending
that the cheque issued was not for any legally enforceable
debt or liability.
9. We may in this regard refer to two decisions of this
Court that have reiterated the view that once the basic
ingredients of Section 138 of the N.I. Act are duly satisfied
by the complainant, the rebuttal of statutory presumption
by the drawer can only be made during the course of trial.
1
2026 SCC OnLine SC 533
5
(2) WP-2099.04.DOCX
In Rangappa v. Sri Mohan3, it has been explicitly
reiterated that the presumption mandated by Section
139 of the N.I. Act includes the presumption as
regards existence of a legally enforceable debt or
liability. It has been held that Section 139 is an
example of a reverse onus clause that has been
included in furtherance of the legislative object of
improving the credibility of negotiable instruments.
The presumption is rebuttable and the accused can
raise a defence wherein the existence of a legally
enforceable debt or liability can be contested.
In Rajesh Jain v. Ajay Singh4, it has been held as
under:
“34. The NI Act provides for two presumptions:
Section 118 and Section 139. Section 118 of the Act
inter alia directs that it shall be presumed, until the
contrary is proved, that every negotiable instrument
was made or drawn for consideration. Section 139 of
the Act stipulates that ‘unless the contrary is proved,
it shall be presumed, that the holder of the cheque
received the cheque, for the discharge of, whole or
part of any debt or liability’. It will be seen that the
‘presumed fact’ directly relates to one of the crucial
ingredients necessary to sustain a conviction under
Section 138.
35. Section 139 of the NI Act, which takes the form
of a ‘shall presume’ clause is illustrative of a
presumption of law. Because Section 139 requires
that the Court ‘shall presume’ the fact stated therein,
it is obligatory on the Court to raise this presumption
in every case where the factual basis for the raising
of the presumption had been established. But this
does not preclude the person against whom the
presumption is drawn from rebutting it and proving
the contrary as is clear from the use of the phrase
‘unless the contrary is proved’.
36. The Court will necessarily presume that the
cheque had been issued towards discharge of a
legally enforceable debt/liability in two
circumstances. Firstly, when the drawer of the
cheque admits issuance/execution of the cheque and
secondly, in the event where the complainant proves
that cheque was issued/executed in his favour by the
drawer. The circumstances set out above form the
fact(s) which bring about the activation of the
presumptive clause. [Bharat Barrel v. Amin Chand]
[(1999) 3 SCC 35 : (1999) 97 Comp Cas 786]
6
(2) WP-2099.04.DOCX
xxxxxxxxxxxxxxxxxx
38. As soon as the complainant discharges the
burden to prove that the instrument, say a cheque,
was issued by the accused for discharge of debt, the
presumptive device under Section 139 of the Act
helps shifting the burden on the accused. The effect
of the presumption, in that sense, is to transfer the
evidential burden on the accused of proving that the
cheque was not received by the Bank towards the
discharge of any liability. Until this evidential burden
is discharged by the accused, the presumed fact will
have to be taken to be true, without expecting the
complainant to do anything further.”
10. A perusal of the revisional order passed by the learned
Judge of the Sessions Court indicates that he has given
much importance to the fact that the agreement dated
12th January 2022 was not signed by the second
respondent and, hence, the issuance of the cheque in
question was not for any enforceable debt. He also appears
to have given importance to the dispute between the
appellant and her husband by stating that it was a
matrimonial dispute and civil litigation between the said
parties was pending in various Courts. In our view, the
learned Judge misdirected himself when he proceeded to
give more weightage to the document dated 12th January
2022 and in the process, ignored the fact that the basic
ingredients for attracting the provisions of Section 138 of
the N.I. Act had been duly satisfied by the appellant, at
least for issuance of process. The drawing of the cheque by
the second respondent, its presentation and subsequent
dishonour at the instructions of the second respondent is
not in dispute. The second respondent does not also
dispute that he had issued the said cheque and that it was
duly signed by him. The issuance of statutory notice as
well as filing of the complaint within the prescribed period
are also not in dispute. In such a situation, when the basic
ingredients of Section 138 stand duly satisfied and the
statutory presumption under Section 139 gets triggered,
coming to a conclusion that the cheque was not issued for
a legally enforceable debt at the pre-trial stage itself
without granting an opportunity to the complainant to
substantiate her case by leading evidence would amount
to ignoring the statutory presumption that the cheque had
been issued for a legally enforceable debt or liability. As a
consequence, the presumption under Section 139 of the
N.I. Act gets washed away even prior to commencement of
the trial. We are of the view that in the facts of the present
case, the dismissal of the complaint as a consequence of
setting aside the order issuing process is totally unjustified
in the absence of any material being brought on record by
7
(2) WP-2099.04.DOCX
the second respondent to rebut the statutory presumption
and prove his contention that the cheque was issued not
towards any enforceable debt or liability.
Since we are inclined to restore the complaint for being
tried on merits, it is not necessary to deal with the decision
in Sunil Todi (supra) in detail. Suffice it to observe that
even in the said decision, it has been held that disputed
questions as regards existence of outstanding liability are
questions of fact that have to be determined at the trial on
the basis of evidence.
11. For all these reasons, we are of the view that the
learned Judge of the Sessions Court committed an error in
setting aside the order dated 17th June 2022 passed by
the learned Metropolitan Magistrate issuing process under
Section 138 of the N.I. Act. The High Court also fell into
error in upholding the order passed by the learned
Sessions Judge. Accordingly, both the aforesaid orders are
set aside. The complaint filed by the appellant being
CC1831/SC/2022 stands restored for its adjudication on
merits.”
14. This Petition is without merit.
15. Though this Petition warrants dismissal with costs, Mr.
Ranjeet Patil, learned Advocate for the Petitioner, persuades the
Court not to impose costs.
16. Rule is discharged. Criminal Writ Petition No.2099 of 2004 is
dismissed.
17. No orders as to costs.
(ASHWIN D. BHOBE, J.)
8
Checking your session…