Bombay High Court
Kedarnath Ramnaji Budhwat vs Bhimrao Karbhari Kayande on 7 November, 2025
2025:BHC-AUG:30360
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPLICATION FOR LEAVE TO APPEAL BY PVT. PARTY NO. 01 OF 2025
Kedarnath Ramnaji Budhwat,
Age : 64 years, Occ : Retired,
R/o: Shri Sadan, Shrikrishna Nagar,
New Mondha Road, Tq. & Dist. Jalna. ... Applicant
[Orig. Complainant]
Versus
Bhimrao Karbhari Kayande,
Age : 51 yrs, Occ : Service,
R/o : Shri. Shivaji Highschool,
Tq. & Dist. Buldhana. ... Respondent
[Orig. Accused]
.....
Mr. B. S. Dhawale, Advocate for the Applicant.
Mr. R. B. Gite, Advocate for the Respondent.
.....
CORAM : ABHAY S. WAGHWASE, J.
Reserved on : 04.11.2025
Pronounced on : 07.11.2025
ORDER :
1. Instant application for leave to file appeal is on behalf of the
original complainant, who intends to question the judgment and
order of acquittal dated 06.12.2024 passed by the Additional Chief
Judicial Magistrate, Jalna in SCC No. 1202 of 2018, acquitting
present respondent from the offence under Section 138 of the
Negotiable Instruments Act, 1881 [for short, "the Act"].
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2. Learned counsel for the applicant would point out that, above
proceedings under Section 138 of the Act were instituted against the
present respondent as, out of long acquaintance, an amount of
Rs.10,00,000/- (Rupees Ten Lakh only) by way of hand loan was
extended. That, towards re-payment of the same, cheque was issued.
However, the cheque got dis-honoured and therefore the proceedings
under Section 138 of the Act were instituted. Learned counsel
submitted that, the trial court primarily acquitted the accused on the
ground that there was no written contract. That, neither issuance of
cheque, nor signature over it was disputed. However, according to
learned counsel, the manner and tenor of cross of the complainant at
the instance of the accused itself shows that there was no dispute
about borrowing hand loan at various times. Secondly, the defence
put forth by accused was not probabilized. Learned counsel pointed
out that, accused has set up a case of mere denial and misuse of
cheques, regarding which there was no demonstrable evidence on
behalf of the accused. Thus, according to the learned counsel, there is
good case on merits, and judgment being erroneous, complainant
intents to prefer appeal. Learned counsel therefore urges for grant of
leave.
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3. Strongly opposing the above application, learned counsel for
the respondent points out that complainant had failed to discharge his
primary burden of proving existence of legally enforceable debt.
Secondly, cheque issued as a security in another transaction of loan
was misused by the accused. Even complainant had not placed on
record anything to show that there was extension of any hand loan.
Learned counsel pointed out that, it is the very case of the
complainant that amounts were given at various times and that too,
in installments, but complaint is devoid of precise details of the same
and therefore, when there was nothing concrete about extension of
any hand loan as alleged, it is his submission that, the trial court
committed no error whatsoever in acquitting the accused. Resultantly,
he prays to refuse leave.
4. Heard. Perused the papers. It seems that present applicant
Kedarnath instituted SCC No. 1202 of 2018 on the premise that, he
knows accused since last 20 years. Accused was working as a peon in
a highschool. It is also his case that during their acquaintance, on
various occasions, accused had borrowed loans and even re-paid the
same. It is further averred in the complaint that in June 2017, accused
borrowed Rs.10,00,000/- on two counts, i.e. medical treatment of
father and secondly, for re-payment of tractor loan. In paragraphs 3
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to 5 of the impugned judgment, it has been observed that
Rs.10,00,000/- were given, but as pointed out by learned counsel for
the respondent, and it being already clearly averred in the complaint
that, time to time and in installments amount was paid, but details
are not furnished as to when and on which date, what particular
amount was extended. Mere general statement is made that time to
time Rs.10,00,000/- were given by way of hand loan. As pointed out
by learned counsel for the respondent, and as held by the learned trial
court, there is nothing in black and white regarding borrowing of
Rs.10,00,000/- and extension of hand loan of Rs.10,00,000/-. It is
fairly settled legal position that, in proceedings under Section 138 of
the Act, it is expected of the complainant to demonstrate and lead
cogent evidence showing that there was extension of financial
assistance and there was existing a legally enforceable debt. However,
prima facie, it is emerging that alleged transaction is of June 2017
and directly demand is shown to be made in April 2018. Therefore,
complainant's case is not convincing or full-proof.
5. In cases under Section 138 of the Act, primary burden is on the
complainant to prove that there was legally enforceable debt. Here,
complainant having failed to demonstrate that there was extension of
hand loan, there is no question of drawing presumption and calling
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upon accused to rebut the same. Even otherwise, accused has put up a
defence that cheque in question was in fact issued as a security in a
loan proposal and the same was misused by the applicant. In
paragraph 16 of the order sought to be challenged, learned trial court
has discussed this aspect by referring to the say of accused under
Section 313 Cr.P.C.. It is fairly settled position that accused need not
prove his case by leading cogent and reliable evidence. It is merely
expected to probabilize his defence. The defence so taken by accused
does not seem to have been refuted by the complainant. For above
reasons, there does not seem to be a case made out for leave to be
granted so as to permit applicant to prefer appeal. There being no
merit in the application, following order is passed :
ORDER
I. Leave to file appeal is refused.
II. Application is dismissed.
[ABHAY S. WAGHWASE, J.]
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