Bombay High Court
Sow Rekha Prakash Baviskar vs Jaywant Ramchandra Bansode on 12 June, 2025
2025:BHC-AS:23567
P.H. Jayani 08 APEAL220.2006.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 220 OF 2006
Sow Rekha Prakash Baviskar
Adult, Occ. : Household resident of
Indira Colony at & Post Manmad,
Taluka : Nandgaon, Dist. Nashik ..... Appellant
Vs.
1. Jaywant Ramchandra Bansode
Adult, Occ : Service,
Resident of Camp No.2, Yeola Road,
Manmad, Dist. Nashik
2. The State of Maharashtra
(Copy to be served on Public Prosecutor,
High Court, Bombay Appellate Side,
1st floor, PWD Building, Fort,
Mumbai - 400 001. ..... Respondents
Mr. Kunal Kumbhat a/w. Mr. Karthik Pillai i/b. Adv. Sunanda
R. Kumbhat for the Appellant.
Mr. Advait Tamhankar, appointed Advocate for Respondent No.1.
Ms. R.S. Tendulkar, APP for the State.
CORAM : SHYAM C. CHANDAK, J.
RESERVED ON : 23rd APRIL, 2025.
PRONOUNCED ON : 12th JUNE, 2025.
JUDGMENT :
-
. Present Appeal is filed under Section 378 (4) of the Code
of Criminal Procedure by the Original Complainant being aggrieved
by the Judgment and Order dated 12/12/2005, in Summary Criminal
P.H. Jayani 08 APEAL220.2006.doc
Case No.02/2003, passed by the Court of learned Judicial Magistrate
First Class, Manmad, District Nashik thereby Respondent No.1 was
acquitted of the offence punishable under Section 138 of the
Negotiable Instruments Act, 1888. (Hereinafter the parties are being
referred to as per their original status in the trial Court, i.e., Appellant
as "the complainant" and Respondent No.1 as "the accused").
1.1) Record indicates that, Appeal was admitted on 17/2/2006
as per the leave to Appeal granted on that date. The notice of the
Appeal was served to the accused on 29/04/2006 as stated in the
Report dated 03/05/2006 received from the Police Inspector,
Manmad City Police station. However, the accused failed to file his
appearance. Thereafter, the Appeal was directed to be listed for final
hearing. However, the accused failed to attend and avail the hearing.
Therefore, Mr. Tamhankar, the learned Advocate was appointed to
espouse and represent the cause of the accused and the Appeal taken
up for final hearing.
2) Heard Mr. Kumbhat, the learned Advocate for the
complainant, Mr. Tamhankar, the learned Appointed Advocate for
the accused and Ms. Tendulkar, the learned APP for Respondent
No.2- the State. Perused the record.
3) The facts are that, the complainant filed the aforesaid case
therein she stated that by an Agreement to Sale dated 27/07/2001
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(Exh.41-"2nd Agreement", for short), the accused agreed to sell the
complainant a piece of land with a structure thereon bearing CT
Survey No.142 admeasuring 1 are with rooms constructed thereon.
The Complainant paid Rs.70,000/- to the accused as an earnest
amount. It was agreed between the parties that the balance amount
will be paid within 11 months from the date of the said Agreement and
the accused will execute the sale deed. As alleged, thereafter, the
accused avoided to execute the sale deed on different pretexts.
Therefore, the complainant issued a legal notice dated 02/07/2002
(Exh.21) and called upon the accused to execute the sale deed.
Thereafter, the accused approached the complainant, and in presence
of two respectable persons, requested to cancel the transaction and to
accept the cheque for Rs.70,000/- towards refund of the earnest
amount. On the same day, i.e., 26/11/2002, the accused issued a
cheque (Exh.19) on his banker 'Bank of Maharashtra', Manmad, for a
sum of Rs.70,000/- and assured that the cheque will be honoured.
The complainant accepted the cheque and deposited for encashment
on 26/11/2002 itself, with her banker NDCC Bank, Branch at
Manmad. On the same day the cheque returned dishonoured for the
reason "refer to the drawer" and received to the complainant along
with the memo (Exh.20) of the bank of the accused. Hence, the
complainant inquired with the accused but the latter gave evasive
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replies and denied to execute the sale deed. On 04/12/2002, the
complainant issued a statutory notice (Exh.15) and called upon the
accused to pay the dishonoured cheque amount. The accused received
that notice on 05/12/2002 (vide acknowledgment Exh.16), but did
not comply with the said notice. Hence, the complainant filed the said
case alleging the offence of Section 138.
3.1) On appearance of the accused, the trial Court explained
him the particulars of the offence and recorded his plea (Exh.13). The
accused pleaded not guilty and claimed to be tried.
3.2) Then the Complainant adduced his evidence on affidavit
(Exh.23) and relied upon the aforesaid documents in the evidence.
Thereafter, the complainant closed her evidence. Hence, the trial
Court recorded the statement of the accused as provided under
Section 313 of Cr.P.C., in which he stated that the subject cheque was
given as security to one Mr.Dilip Ghevarchand as security. The
Agreements for Sale were time barred. Therefore, the case was false.
4) Now, before analysing the rival contentions, let us see how
the trial Court has returned a verdict of acquittal. For, to upset a
verdict of acquittal, the view taken by the trial Court found to be
impossible or perverse.
4.1) The evidence of the complainant (PW1/Exh.23) is that 0n
26/11/2002 the accused gave her the dishonoured cheque bearing No.
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104730, dated 26/11/2002, for an amount of Rs.70,000/-, drawn in
her favour, in presence of two respectable persons with a request to
cancel the Agreement and to return her the earnest amount. The
cheque was deposited for payment on 26/11/2002 itself. However,
the cheque returned unpaid for the reason "refer to drawer" vide the
cheque return memo (Exh.20). The complainant stated that on
04/12/2002, she issued the demand notice (Exh.15) and called upon
the accused to pay the dishonoured cheque amount within a period of
15 days from the receipt of the said notice. The notice was served
upon the accused on 05/12/2002. However, the accused, failed and
neglected to pay the said cheque amount within the stipulated period.
4.2) In the cross-examination, the complainant was confronted
with the Agreement to Sale dated 04/11/2000 (Exh.42-"1st
Agreement", for short) and the 2nd Agreement (Exh.41), which she
admitted. She further admitted that, she cannot state the Municipal
House Number, which was the subject matter of the 1 st Agreement for
Sale. She cannot state the time limit of 1st and the 2nd Agreement. She
admitted that loan was taken on the house property from ICICI bank.
She admitted that the 1st Agreement was executed on 04/11/2000.
However, she denied that no action was initiated within the time limit
of six months stated in the 1st Agreement.
4.3) The complainant admitted that she knew Mr.Dilip
P.H. Jayani 08 APEAL220.2006.doc
Gevarchand Bedmutha. The accused had his grocery shop account
with said Dilip Bedmutha. Her husband and the accused both were
working with FCI. The complainant admitted that the transaction
dated 26/11/2002 took place with her husband. She admitted that,
therefore, whatever documents were executed, same were executed in
front of her husband. To the questioned that "Is it correct that you
have no personal information of this transaction?", the complaint
replied by nodding her head in affirmative manner. She admitted that
the 2nd Agreement was written by Stamp-vendor Mr. Nagapure and at
that time, she, her husband and wife of the accused were present
there. She admitted that she had issued two notices to the accused
after dishonour of the cheque. She admitted that, whichever notices
were issued, her husband gave its information to her Advocate. She
stated that the accused had received both the notices. She admitted
that both the Agreements mention about the payment of Rs.70,000/-.
She admitted that, both the Agreement were not cancelled. She
admitted that she has filed this case on the basis of the 2 nd Agreement.
She admitted that, she had informed her Advocate that she wanted to
purchase the house property stated in the 2nd Agreement. She denied
that the accused never gave the dishonoured cheque to her. In view of
the above evidence in the cross-examination of the complainant, the
trial Court held that, it is difficult to believe that the cheque was given
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by the accused in favour of the complainant.
4.4) The trial Court noted that, in the 1 st Agreement, the period
of six months was fixed to pay the balance amount, otherwise, the
earnest amount was to be forfeited. The complainant admitted that
said limitation clause in the 1st Agreement is true and correct. The
trial Court observed that, the said period of six months from
04/11/2000 was expired on 03/05/2001. The cheque was given on
26/11/2002, i.e., after 03/05/2001, not during the subsistence of the
1st Agreement. In other words, the cheque was given for the time
barred liability. Therefore, the trial Court held that, it cannot be said
that the cheque was given for legally enforceable liability of
Rs.70,000/-. Thus, according to the trial Court, on this ground also
the case of the complainant failed.
4.5) Like the 1st Agreement, in the 2nd Agreement also it was
stated that, "If the complaint failed to pay the balance consideration
amount with the period of six months to the accused, then the entire
earnest money would be forfeited to the accused after the expiry of
the six months". However, this limitation clause in the 2nd Agreement
has been struck off. The trial Court assumed that said striking off the
matter appears to be initialed, but it is difficult to believe that, the
initial was made against the struck off clause, as the same initial was
made on Page No.4, where there is no striking of. The trial Court
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observed that, the 2nd Agreement was executed on 27/07/2001.
Therefore, the time limit of six months from 27/07/2001 would
expire on 27/01/2002. The cheque was given on 26/11/2002, i.e.,
after the agreed period of six months expired on 27/07/2002 ( vide 2nd
Agreement). On this ground also, it cannot be said that the cheque
was given to discharge the legally enforceable debt or liability.
Therefore, the trial Court held that the complainant failed to establish
that the cheque was given by the accused in her favour towards the
legally enforceable liability and, acquitted the accused.
5) Mr. Kumbhat, learned Advocate for the Appellant
submitted that initially, the parties entered into the 1 st Agreement
dated 04/11/2000 thereby the accused had agreed to sell the said
property to the complainant for a consideration of Rs.1,00,000/-.
This fact was conceded in the cross-examination by the accused.
Thereafter, the parties entered into the 2nd Agreement, which was
identical to the 1st Agreement. He submitted that, unless there was an
intention to complete the transaction, the parties would not have
agreed to enter into the Agreement to Sale one after another. The fact
that the complainant has paid the earnest money of Rs.70,000/- is
also admitted and conceded in the cross-examination. He submitted
that, only for the sake of convenience, initially, the period to execute
the sale deed was restricted to six months and subsequently to 11
P.H. Jayani 08 APEAL220.2006.doc
months (vide Exh. 42 & 41). He submitted that, the three years'
limitation period to file a civil suit was not expired from the date of
the 1st and the 2nd Agreement. Therefore, it cannot be said that the
earnest amount was time barred and it was no legally enforceable
debt or liability. He submitted that even if it is treated that the earnest
amount was time barred, but once the accused issued the cheque to
refund the time barred earnest amount, it is an acknowledgment of
the time barred debt as the limitation period stands revised from the
date of such an acknowledgment. Yet, the cheque given to discharge
that liability was dishonoured. He submitted that the accused failed
to rebut the presumptions applicable in such cases. As such, the
offence of Section 138 was proved. However, the trial Court did not
consider the evidence on record properly nor the legal principle of
acknowledgment of the time barred debt was conceived and discussed
by the trial Court before acquitting the accused. Therefore, the
impugned Judgment and Order is against the evidence and the
applicable law and is liable to be set aside. To bolster his submissions,
he cited the decision in Dinesh B. Chokshi and another v/s. Rahul
Vasudeo Bhatt and another1, therein in paragraph 15 and 21 it is
enunciated as under :-
"15. On plain reading of Section 13 of the said Act of 1881, a
1 2012 (4) Bom.C.R.(Cri.) 764
P.H. Jayani 08 APEAL220.2006.doc
negotiable instrument does contain a promise to pay the
amount mentioned therein. The promise is given by the
drawer. Under Section 6 of the said Act of 1881, a cheque is a
bill of exchange drawn on a specified banker. The drawer of a
cheque promises to the person in whose name the cheque is
drawn or to whom the cheque is endorsed, that the cheque on
its presentation, would yield the amount specified therein.
Hence, it will have to be held that a cheque is a promise within
the meaning of Sub-section (3) Section 25 of the Contract Act.
What follows is that when a cheque is drawn to pay wholly or
in part, a debt which is not enforceable only by reason of bar of
limitation, the cheque amounts to a promise governed by the
Sub-section (3) of Section 25 of the Contract Act. Such promise
which is an agreement becomes exception to the general rule
that an agreement without consideration is void. Though on
the date of making such promise by issuing a cheque, the debt
which is promised to be paid may be already time barred, in
view of Sub-section(3) of Section 25 of the Contract Act, the
promise/agreement is valid and, therefore, the same is
enforceable.
21. ... Once it is held that a cheque drawn for discharge of a
time barred debt creates a promise which becomes enforceable
contract, it cannot be said that the cheque is drawn in
discharge of debt or liability which is not legally enforceable.
The promise in the form of a cheque drawn in discharge of a
time barred debt or liability becomes enforceable by virtue of
Sub-section (3) of Section 25 of the Contract Act. Thus, such
cheque becomes a cheque drawn in discharge of a legally
enforceable debt as contemplated by the explanation to
Section 138 of the said Act of 1881. ..."
P.H. Jayani 08 APEAL220.2006.doc
6) Mr. Tamhankar, the learned appointed Advocate for the
accused, on the other hand, submitted that the evidence indicates that
the entire transaction had taken place between the husband of the
Appellant and the accused. There are admissions by the Appellant
which indicate that she had personal knowledge of what transpired
between her husband and the accused on 26/11/2002, when the
dishonoured cheque was allegedly issued by the accused in her
favour. He submitted that by nodding head in affirmative, the
complainant admitted that she has no personal knowledge of the
transaction in question. Thus, by way of the cross-examination and in
his statement under Section 313 of Cr.P.C., the accused has clearly
explained and showed that the subject cheque was given as security
but it was misused and then the complaint case was filed. Therefore,
according to Mr. Tamhankar, the Judgment and Order of acquittal is
lawful and needs no interference.
6.1) In reply, Mr. Kumbhat, the learned Advocate for the
Appellant submitted that the defence, that the subject cheque was
given as security, was never raised by the accused either by replying
the statutory notices (Exh.15 and 21) nor in the cross-examination.
7) Considering the rival submissions, first, the recitals in the
Agreements (Exh. 42 & 41) should be looked into. As per the 1 st
Agreement, the complainant was required to pay the balance
P.H. Jayani 08 APEAL220.2006.doc
consideration within a period of 6 months from the date of the said
Agreement, failing which the earnest amount was to be forfeited to
the accused. Similar six month clause was written in the 2 nd
Agreement and it was struck of, as noted above. But the Trial Court
wrongly assumed that said struck of clause was initialed and it was
part of the said 2nd Agreement. Because half of the signature part of
the accused appears near that struck off part on page No.2 and the
remaining half is on the 3rd page of the 2nd Agreement. This is easily
evident as it is a running signature, covering the page Nos.2 and 3
and on comparison of that signature with the signature of the accused
on page No.4 of the 2nd Agreement. Secondly, in the same Agreement,
on page no.2, it has been mentioned that the complainant should pay
the balance amount of Rs.30,000/- in cash to the accused within 11
months from the date of the Agreement. Similarly, on page no.3 it has
been specifically written that, "Although the complainant paid the
accused the balance consideration amount of Rs.30,000/- in cash
within 11 months from the date of the Agreement, should the accused
avoid executing the sale deed, then the complainant to deposit the
balance amount in a Court and get the sale deed from the Court". This
narration is sufficient to hold that, in fact, in the 2 nd Agreement, the
period of 11 months was fixed by the parties to pay the balance
consideration by the complainant, and therefore, the said clause of six
P.H. Jayani 08 APEAL220.2006.doc
months period was struck of, being contradictory to the clause of 11
months.
9) Be that as it may, it is a fact that the 1 st Agreement was not
materialised for the reasons known to the parties and it was followed
by the 2nd Agreement. It is also a fact that the complainant has not
paid the balance consideration within the agreed 11 months period
from the date of the 2nd Agreement. In the notice dated 02/07/2002
(Exh. 21), the complainant admitted that the said 11 months period
expired on 26/06/2002. Nevertheless, this notice claimed that, from
time to time the complaint demanded the accused to execute the sale
deed during the said 11 months period, but the accused avoided the
same giving different reasons. Therefore, the notice called upon the
accused to execute the sale deed as per the 2 nd Agreement within 30
days from the receipt of the notice failing which the complainant will
be constrained to initiate necessary legal action. As came in the cross-
examination, the complainant also filed a suit seeking specific
performance of the contract. In contrast, the accused did not issue
any notice to the complainant, claiming that she avoided to pay the
balance consideration to get the sale deed and therefore, the 2 nd
Agreement was cancelled. Nor the accused replied the notice
(Exh.21). Even the accused did not reply the statutory notice (Exh.15)
demanding the dishonoured cheque amount. Therefore, adverse
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inference is permissible against the accused.
10) Now turning to the important aspect of the legal liability.
In this regard I noticed that the claim of the complainant that she
paid the earnest amount of Rs.70,000/- is not disputed by the
accused. On the contrary, in the cross-examination it has come that
the Agreements mention about the said payment and that, the said
amount was paid. There has been no condition in the 2 nd Agreement
that if the complainant failed to pay the balance consideration within
the stipulated period of 11 months and get the sale deed, the
Agreement shall stand cancelled and the earnest money will be
forfeited to the accused. The dishonoured cheque was issued only
after issuance of the notice (Exh.21), receipt of which was not
disputed by the accused. In the backdrop and having regard to the
presumptions, it is safe to conclude that the dishonoured cheque was
issued towards the refund of the earnest amount which, ultimately, in
the facts, became the legally enforceable debt or liability. Although in
his statement under Section 313 of Cr.P.C. the accused denied the
receipt of the notice (Exh.15), the acknowledgment (Exh.16) indicates
that the accused received that notice. Similarly, the postal remark on
the envelope (Exh.22) indicates that, twice the accused 'refused' to
receive that notice, hence, the envelope containing the notice was
returned to the complainant. The accused did not deny his address on
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the said envelope. Same address has been stated in the Agreements
confronted to the complainant in the cross-examination. Same
address has been stated by the accused in his statement under Section
313 of Cr.P.C. Thus, the notice was deemed to be served. Withal, the
accused failed to comply with said notice by paying the dishonoured
cheque amount within stipulated 15 days. Therefore, the ingredient of
the offence of Section 138 of the Act were clearly made out.
11) In the cross-examination and in his statement under
Section 313 of Cr.P.C., the accused denied that he received the earnest
amount and that he issued the dishonoured cheque, however, the
accused did not explain then why he entered into the Agreements,
acknowledged the receipt of the earnest amount despite there was
loan of the ICICI bank on the house property and why he issued the
cheque. That apart, even the accused did not explain as to why his
wife also signed and consented to both Agreements, if the transaction
stated therein was not intended by him.
12) As provided in Section 118 of the Act, 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
P.H. Jayani 08 APEAL220.2006.doc
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. Other presumptions can be made as to (d) the time of
transfer, (e) the order of indorsements, (f) the stamps used, and (g)
the holder in due course. Section 139 provides a presumption in
favour of the holder that, "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." Unarguably, the presumptions under Section
118 and 139 are rebuttable. Therefore, if the accused can raise a
probable defence which creates doubts about the existence of a legally
enforceable debt or liability, the prosecution will fail. So the accused
can rely on the materials submitted by the complainant to raise such a
defence and it is conceivable that sometimes the accused may not
need to adduce evidence of his/her own. In the instant case, the above
presumptions (a) to (c) of Section 118 and Section 139 are relevant
and invokable because the accused accepted that he had received the
earnest amount, it has been proved that the said cheque was given on
26/11/2002 and the accused did not dispute his signature on it.
13) Mr. Tamhankar, the learned appointed Advocate has
rightly highlighted that the complainant admitted that the transaction
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dated 26/11/2002 took place with her husband. She admitted that,
therefore, whatever documents were executed, same were executed in
front of her husband. To the questioned that "Is it correct that you
have no personal information of this transaction?", the complaint
replied by nodding her head in affirmative manner. She admitted
that, whichever notices were issued, her husband gave its information
to her Advocate. However, the aforesaid admissions are not sufficient
to accept his submission that the transaction in the Agreements was
not at all entered into by the complainant and the accused. Because,
in the cross-examination of the complainant, the accused has not
suggested about any other transaction. Secondly, as came in the
cross-examination of the complainant, her husband was present
when the 2nd Agreement was written. Therefore, it is natural that her
husband was aware of the transaction in question.
14) The upshot of the above discussion is that, the accused is
guilty of the offence of Section 138 of the Negotiable Instrument Act.
However, the trial Court failed to consider and appreciate the
evidence on record in its correct perspective, which led the trial Court
to acquit the accused. On re-appreciation of the evidence on record,
the view taken by the trial Court is not found to be a possible view.
Moreover, two view are not possible on the basis of the evidence on
record. Therefore, the finding of the acquittal recorded by the trial
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Court is perverse. As a result, the Appeal deserves to be allowed to
convict and sentence the accused for committing the offence of
Section 138 of the Act. In so far as sentence is concerned, the accused
was aged 45 years when his statement under Section 313 of Cr.P.C.
was recorded 02/12/2005. So, now, the accused must be aged 64
years. Therefore and having regard to the punishment provided for
offence of Section 138, I deem it appropriate to sentence the accused
to pay a fine with a default stipulation, as under. Thus, the Appeal
succeeds.
14.1) Hence, following Order is passed :-
i) Appeal is allowed.
ii) The impugned Judgment and Order dated
12/12/2005, in Summary Criminal Case No.02/2003,
passed by the Court of learned Judicial Magistrate First
Class, Manmad, District Nashik is set aside.
iii) The accused Jaywant Ramchandra Bansode is
hereby convicted of the offence of Section 138 of the
Negotiable Instrument Act, 1881 vide Section 255 (2) of
the Criminal Procedure Code, 1973.
iv) The accused Jaywant Ramchandra Bansode is
sentenced to pay a fine of Rs.1,40,000/- for committing
the said offence of Section 138. In default of payment of
fine the accused shall suffer simple imprisonment of three
months.
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v) On deposit of the fine amount, entire fine amount be
paid to the complainant Sow. Rekha Prakash Baviskar as
compensation.
vi) The accused shall deposit the fine amount in the
trial Court within 15 days from the date of uploading this
Judgment and Order on the official website of this High
Court.
vii) The Appeal stands disposed of in aforesaid terms.
viii) R & P is to be immediately returned to the trial
Court.
PREETI
HEERO (SHYAM C. CHANDAK, J.)
JAYANI
