[Cites 5, Cited by 0]
Bombay High Court
M/S Santaji Krushi Kendra Thr. Its Prop. ... vs Ramkrushna S/O Laxmanraoji Nasare on 9 December, 2025
2025:BHC-NAG:13731
12 apeal 554.11.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.554/2011
M/s Santaji Krushi Kendra through
its proprietor Ravindra S/o Rambhauji
Take, Occ. Business, R/o. Arvi,
Tah. Arvi, Dist. Wardha.
...APPELLANT
(Ori. Complainant)
VERSUS
Ramkrushna S/o Laxmanraoji Nasare,
aged about 55 yrs., Occ. Cultivator,
R/o. Wadhona, Tah. Arvi, Dist. Wardha.
...RESPONDENT
(Ori.Accused)
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Mr. D.A. Sonwane, Advocate (appointed) for appellant.
Mr. Parit Lakhani, Advocate for respondent-sole.
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CORAM : M. M. NERLIKAR, J.
JUDGMENT RESERVED ON : 27.11.2025
JUDGMENT PRONOUNCED ON : 09.12.2025
JUDGMENT :
Heard.
2. The present appeal is filed challenging the judgment
and order dated 29.06.2011 passed in Criminal Appeal
No.59/2006, wherein the Appellate Court acquitted the original
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accused for the offence punishable under Section 138 of the
Negotiable Instruments Act ('NI Act'). The Appellate Court set
aside the judgment of the Judicial Magistrate First Class, Arvi,
whereby the respondent was convicted for an offence
punishable under Section 138 of the NI Act and to suffer simple
imprisonment for a period of six months and pay a fine of
Rs.60,000/- and in-default to suffer simple imprisonment for a
period of two months passed in Criminal Summary Criminal
Case No.679/2003.
3. Brief facts:-
The complainant is a proprietor of Santaji Krushi
Kendra. The respondent was a regular customer and would buy
goods from the complainant's shop on credit from time to time.
He bought insecticide and seeds worth Rs.47,735/- on credit.
To discharge the aforesaid debt, accused issued cheque
No. 256785 of Rs.47,735/- on 01.03.2003 drawn on State Bank
of India, Wadhona Branch and along with it a letter stating that
the cheque is for repayment of the credit amount. The cheque
was presented for encashment on the same date by the
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complainant. Bank returned the cheque on 04.03.2003 stating
that the cheque dishonoured due to 'account closed.' Legal
notice was issued on 26.3.2003 which was received by accused
on 28.03.2003. As the accused did not pay the amount despite
receiving the notice, the case was instituted. After appreciating
the evidence, the learned Judicial Magistrate First Class, Arvi
convicted the accused for the offence punishable under Section
138 of the NI Act on 15.11.2006. Against the same, an appeal
was presented wherein the learned Sessions Judge, Wardha
acquitted the accused under Section 138 of the NI Act. The
above judgment of acquittal is challenged in the present appeal.
4. The learned counsel for the appellant submits that the
Appellate Court has committed gross error in acquitting the
present respondent/original accused as the appellant has
proved his case beyond reasonable doubt. He submits that
CW-1 complainant Ravindra Tekay deposed in his evidence that
the accused had given him cheque (Exh.20) on 01.03.2003 to
pay the outstanding amount towards credit purchases of
insecticides, along with letter which is at Exh.21. The said
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cheque was given to satisfy the credit amount. After
depositing the cheque (Exh.20) on 01.03.2003, the same was
returned upaid for the reason 'account closed' on 04.03.2003.
Accordingly, a return memo (Exh.23) was issued. He submitted
that dishonour of cheque is not disputed. Pursuant to same, he
has issued notice (Exh.24) on 26.03.2003 thereby informing
about dishonour of the cheque and demanding the amount
within 15 days. The notice was received by accused on
28.03.2003. The acknowledgement to that effect was filed on
record at Exh.26. He submitted that despite receiving the
notice, the accused failed to pay the cheque amount. The
learned counsel for the appellant submits that once the
complainant has proved that the cheque was issued and the
signature on the cheque is of accused, under such
circumstances, the presumption under Section 139 of the NI Act
would arise in favour of complainant as the presumption states
that it is presumed that the holder of the cheque has received
the cheque for discharge of debt or other liability, therefore he
submits that the burden lies on the accused i.e. the drawer to
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rebut the presumption. He submits that the accused has not
disputed so far as the issuance of cheque and letter wherein the
signature of the accused appears. However, the contents of the
same were denied by the accused. The Appellate Court has
failed to appreciate the above fact and undue importance was
given to oral evidence of accused that the cheque was issued in
1997 and further ignored the evidence at Exh.21 i.e. written
acknowledgement of outstanding amount. Therefore, the
Appellate Court has failed to appreciate the entire evidence on
the record in its true perspective and came to the wrong
conclusion by acquitting the accused.
5. On the other hand, learned counsel for respondent
vehemently submitted that the cheque was issued as a security
deposit. The amount which was due from the respondent was
paid long back. The transaction was of the year 1997, however
the cheque remained with the complainant, even after the full
payment. The date and amount on cheque were subsequently
added, which are in different handwriting and ink. Even in the
acknowledgement/letter at Exh.21 the amount written is in
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different ink, therefore no reliance can be placed on such letter.
So as to substantiate the above, accused has examined himself
and one witness namely Narayan Chafle whih has stated that
the transaction between complainant and accused took place in
the year 1997. The complainant agreed to give the goods on
credit only on the condition that the accused would give a
blank cheque and a letter signed by him and accordingly
cheque was issued in the name of M/s. Santaji Krishi Kendra
and letter was also given. The complainant asked the accused
to keep the date and amount column blank on cheque as well
as acknowledgement. Accordingly, he signed the cheque and
the acknowledgement which were given as a security. He
submitted that the evidence of accused goes to show that the
said cheque was misused by putting the date as 03.01.2003 by
the complainant, so also, the amount was inserted later on in
the blank space. He submitted that the amount was cleared in
the year 1997 itself and accordingly the receipts at Exh. 30 to
Exh.43 are placed on record which were paid in cash and kind.
There is no outstanding liability after 1997 as no transaction
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took place between them. Accordingly, he submitted that the
Appellate Court has rightly acquitted the accused as there is no
legally enforceable debt.
6. Upon considering the rival submissions of the parties
at length, it appears that the Trial Court has convicted the
accused basically on the ground that the complainant has
proved his case and the accused has failed to rebut the
presumption under Section 139 of the NI Act. It appears from
the judgment of the Trial Court that it is based on three
essentials ingredients of Section 138 of the NI Act which were
considered by the Trial Court to convict the accused which are
(i) Dishonour of cheque, (ii) Issuance of statutory notice and
(iii) legally enforceable debt. Firstly the cheque dishonoured as
the balance was nil and account was closed which was
admitted by the accused. Secondly, statutory notice was issued
and for this purpose, the Court has relied on the evidence of
complainant and the office copy of legal notice, postal
acknowledgement and the accused receiving the notice, which
is admitted by the accused in the statement under section 313
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of the Code of Criminal Procedure ("Crpc"). The Trial Court
has come to the conclusion that even the third ingredient i.e.
issuance of cheque for legally enforceable debt is satisifed as
the accused has not disputed issuance of cheque. The Trial
Court has also relied on the evidence of complainant, wherein
he has specifically deposed about the fact that as there was
friendly relationship between the complainant and accused, he
has given fertilizer, seeds and insecticide on credit basis and in
lieu of that the accused has issued the cheque. The Trial Court
has drawn adverse inference against the accused as reply was
not given by the accused to the notice, therefore the Trial Court
has held that the three essential ingredients are proved by the
complainant and accordingly the accused was convicted and
sentenced to suffer simple imprisonment for a period of six
months and pay a fine of Rs.60,000/- in-default to suffer
simple imprisonment for a period of two months and also
awarded compensation of Rs.47,735/-.
7. Against the above judgment, appeal was preferred and
the Appellate Court reversed the finding of the Trial Court on
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the basis of the fact that the accused has issued cheque in the
year 1997 as a security, and even though the amount
outstanding was paid in cash, the cheque remained with the
complainant which was misused. The Appellate Court has held
that the date and amount on the cheque were subsequently
added and are in different ink. The receipts which were placed
on record by the accused at Exh.30 to 43 are of the year 1997,
however only bill at Exh.81 is of 2001. It was further held that
there were no transactions between the complainant and
accused in the year 2003. Even in respect of transaction of
2001 bill at Exh.81, there was no delivery memo therefore the
same is also doubtful. If it is presumed that, there were
transactions between the period of 1997 to 2001 as per bills,
then the total amount outstanding would be Rs. 99,965/-. Even
if it is assumed that that the cheque is of the year 1997 then
also recovery in 2003 was barred by limitation. It was further
observed that in absence of books of account or other
documents, the case of the complainant cannot be relied. It is
further held that the accused has successfully rebutted the
12 apeal 554.11.odt
presumption and the cheque was for security purposes and
issued against a legally enforceable debt. On the aforesaid
basis, the Appellate Court came to the conclusion that the Trial
Court has committed error and the findings rendered are
perverse therefore, set aside the judgment and order of
conviction passed by the Trial Court and accordingly, acquitted
the accused.
8. It appears from the record that in the cross-
examination, it is admitted by the complainant that the accused
has not made any purchase in 2003. He does not know whether
the date and amount in words and figure written on the cheque
is in the handwriting of the accused or not. The outstanding
bill of credit purchase placed on record are of the years from
1997 to 2001. He admitted that the said fact was not
mentioned by him in the complaint as well as in the notice.
Though he regularly maintained books of account, he has not
filed any books of account in the matter. It was further brought
on record in cross-examination that when the complainant sold
the goods from his shop, delivery memo is prepared, however
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in the present case, he has not filed the copies of delivery memo
and the bills. He used to show the outstanding amount in the
income tax return, however he has not filed balance sheet of his
business in the present case. He admitted that he usually
issued the receipts upon receiving the payment. If the cheque is
issued, particulars of the cheque are mentioned in the bill and
the mode of payment like by Demand Draft, cheque and cash is
also mentioned in the bills. He admitted that several receipts
i.e. from Exh. 30 to 43 are placed on record in respect of
payment by the accused. He has not filed the copies of
outstanding bills or any account to show that sum of
Rs.47,735/- was outstanding against the accused. The office
copy of bills are still in his shop and he has not sent any notice
to the accused demanding outstanding amount. He has also
not issued any receipt to the accused against issuance of cheque
in question. He further admitted that he cannot tell whether
the words written before pay to "Santaji Krushi Sewa Kendra,
Arvi" and the amount mentioned in words on cheque at Exh.20
are in different handwriting. However, he has admitted that
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there is a slight difference in the handwriting of amount of
words and the payee's name on the cheque at Exh.20.
9. The accused examined himself and deposed that he
had transactions with complainant in 1997. Thereafter, there
was no transaction with the complainant. In June 1997, the
accused was in need of seeds and fertilizers. Therefore, he
went to the complainant and told him that he does not have
money and asked him to give the goods on credit. The
complainant agreed, however asked for cheque and chit as a
security. The complainant asked him to keep the date and
amount columns blank on the cheque and
chit/acknowledgement. Therefore, the accused gave a signed
cheque in the name of M/s Santaji Krushi Kendra by keeping
the amount and date column blank. He further deposed that he
has never given the cheque at Exh.20 and chit at Exh.21 on
01.03.2003. The amount and the date therein are not in his
handwriting. He further deposed that in the year 1997, the
entire amount was paid, thereafter there were no transactions
between the complainant and the accused. He further deposed
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that after returning the amount, receipts are issued at Exh. 30
to Exh. 43.
10. During cross-examination, he admitted that purchase
from the complainant's shop was made prior to 1997 also. The
chit at Exh.21 was in his handwriting, however the date and
amount is not in his handwriting. He has taken goods of
Rs.50,000 from complainant, and accordingly whenever he
would take goods on credit, bill was to be issued and signature
was taken. When various bills were shown to him (Exh. 71-81)
he stated that those all have been paid in cash. He admitted
the above bills bear his signature except bill at Exh.82. Goods
worth Rs.37,431/-were delivered by the complainant and same
was paid, partly in kind by exchanging cotton yield and partly
in cash. He also admitted that he purchased goods in credit on
his wife's name but cannot say whether Rs. 43,678/- worth
goods were purchased in his wife's name or not. Admittedly, he
stated to be aware that goods worth Rs. 1,00,000/- or so are
purchased on credit by him. He denied the suggestion that he
owed total of Rs.1,15,026/- from him and Rs. 43,678/- from his
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wife. He admitted that even after adjustment, Rs.70,000/- are
still due towards complainant. He denied the suggestion that
the said amount was agreed to be paid by issuing cheque for
the same. The accused has also examined witness Narayan
Chafle in his defence wherein he has specifically stated that the
complainant has obtained cheque and the letter as a security.
He deposed that the amount and the date columns were blank
at the time of issuance of cheque. It appears from record that
nothing was brought on record in the cross-examination by the
complainant so as to shake his testimony
11. From perusal of the entire record including testimonies
of witnesses, it appears that the accused has issued the cheque
at Exh. 20 and also chit/letter/acknowledgement at Exh.21.
As admitted by the accused that cheque was signed by him,
however the date and the amount columns were kept blank.
Under such circumstances, it would be useful to refer to the
cross-examination of the complainant, wherein he has
specifically admitted that in the year 2003, the accused has not
purchased any goods from his shop and further the words
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written before pay to "M/s Santaji Krushi Kendra, Arvi" and the
amount mentioned in words on cheque (Exh.20), there is a
slight difference in handwriting in the amount of words and the
payee's name on cheque (Exh.20). From this fact, it is clear
that the accused has handed over the signed cheque only by
writing name of complainant, however rest of the columns
were kept blank, even after perusal of the original cheque, it
appears that handwriting in the column of amount in word,
amount in figure and date are in different ink. Similarly,
Exh.21 which was a chit issued would demonstrate that the
date and the figure are in different handwriting and in different
ink. Therefore, naturally it creates a doubt about the veracity of
the version of the complainant. Therefore, it was rightly
observed by the Trial Court that the cheque was issued in the
year 1997, which was misused by the complainant in the year
2003 by filling the amount and date in the blank columns.
Further, receipts of the transactions are placed on record from
Exh. 30 to Exh. 43 which also show the year as 1997. Only one
receipt at Exh. 81 is of the year 2001. Even no delivery memo
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with respect to bill at Exh.81 is placed on record and the bill is
also illegible which makes it doubtful whether the appellant has
purchased any goods in 2001. Considering the aforesaid, one
fact is clear that there were no transactions after 1997.
12. Perusal of the evidence, further shows that the accused
has examined himself and the other witness namely Narayan
Chafle who in clear terms stated that the cheque was issued
only by writing name of the M/s Santaji Krushi Kendra and
other Columns were kept blank. Therefore, it could be safely
said that the cheque was given as a security and not in lieu of
discharge of legally enforceable debt. It could be further
gathered from the evidence of complainant that he has
specifically admitted that he used to issue the receipt only after
payment of the amount, therefore it strengthen the probable
defence, which was taken by the accused that only after
payment of the amount, the receipt were issued. It is necessary
to mention at this juncture that the complainant has deposed
that he used to maintain the books of account on regular course
of business. However, he has not filed the same to support his
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case and also he has not shown any documentary evidence in
respect of outstanding amount of Rs.47,735/- which ought to
have been shown him in the books of account. Therefore,
adverse inference could be drawn from the said fact that there
is no legally enforceable debt against the accused.
13. Considering the fact that though it was shown the
cheque was issued on 01.03.2003, however absolutely there is
nothing on record to show that the complainant has sold the
fertilizers or seeds to the accused in the year 2003. Under such
circumstances, if there is no transaction of the year 2003, there
is no question of issuance of cheque in the year 2003. The
accused has taken a consistent stand that the cheque was issued
as a security in the year 1997 which is also supported by the
witness No.2 for defence as nothing was brought on record in
the cross-examination of both these witnesses.
14. It appears from the record that there are several credit
bills which are filed on record from Exh. 72 to Exh. 81. All
these credit bill amount to Rs. 19848/-. Even if it is presumed
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that there is some existing liability, however the figure of
Rs.19,848/- and the figure on the cheque is not matching,
therefore, whatever the bills which are filed by the complainant
during the cross-examination of the accused, is not sufficient to
say that there exists any legally enforceable debt.
15. Even if this Court considers the admission of the
accused that still Rs.70,000/- is balance and outstanding from
him, still the theory which was put-forth by the complainant
discredit the fact that the cheque amount was shown as Rs.
47,735/-. Therefore, in view of discrepancies, theory put-forth
by the complainant cannot be accepted.
16. Considering the above facts and circumstances, the
Appellate Court has rightly appreciated the entire evidence on
record. The complainant has failed to make out a case,
therefore, the acquittal granted by the Appellate Court is
proper. Therefore, there is no merit in the appeal hence,
appeal is dismissed.
( M. M. NERLIKAR , J.)
Gohane
Signed by: Mr. J. B. Gohane
Designation: PS To Honourable Judge
Date: 09/12/2025 17:30:33
