Rajendra Dattatray Pawar vs Vishnu Genu Pathare And Anr.
2025 Latest Caselaw 5452 Bom

Bombay High Court

Rajendra Dattatray Pawar vs Vishnu Genu Pathare And Anr. on 10 September, 2025

Author: Amit Borkar

Bench: Amit Borkar

    2025:BHC-AS:37674
                                                                                            49 REVN 481-19.doc


                               Ashish
           Digitally signed
ASHISH
                                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
           by ASHISH
           SAHEBRAO
SAHEBRAO   MHASKE
MHASKE     Date: 2025.09.10
           17:50:56 +0530



                                                CRIMINAL APPELLATE JURISDICTION

                                         CRIMINAL REVISION APPLICATION NO.481 OF 2019
                                                            WITH
                                              INTERIM APPLICATION NO.426 OF 2019
                                                            WITH
                                         CRIMINAL REVISION APPLICATION NO.482 OF 2019
                                                            WITH
                                              INTERIM APPLICATION NO.427 OF 2019
                                                              IN
                                         CRIMINAL REVISION APPLICATION NO.482 OF 2019

                               Rajendra Dattatray Pawar                     ... Applicant
                                          V/s.
                               Vishnu Genu Pathare (deceased)
                               through Legal Heir Muktabai Vishnu
                               Pathare and anr                              ... Respondents


                               Mr. Sidheshwar Biradar, for the applicant.
                               Ms. Priyanka Chavan, (appointed as legal aid) a/w
                               Aditya Shinde for respondent no.1. (through VC).
                               Mrs. Rajashree Newton, APP for respondent-State.


                                                             CORAM   : AMIT BORKAR, J.

DATED : SEPTEMBER 10, 2025 P.C.:

1. The facts and circumstances leading to the present applications are identical in nature, except for the cheque numbers involved. Hence, both Revision Applications are being disposed of by this common order.

2. According to the complainant-respondent no.1, the accused was his close friend. On 12.02.2014, the accused borrowed a hand

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loan of Rs. 5,00,000 for a period of three months. For repayment, he issued three post-dated cheques of Rs. 1,00,000 each and one post-dated cheque of Rs. 2,00,000. On presentation, cheque Exh. 14 of Rs. 1,00,000 and cheque Exh. 16 of Rs. 2,00,000, both dated 22.05.2014, were dishonoured on 27.05.2014 with the bank endorsements Exhs. 15 and 17 for "insufficient funds". The complainant issued statutory notice on 05.06.2014. The accused received the notice on 07.06.2014 and replied on 20.06.2014. The complainant thereafter sent a rejoinder. However, the accused did not comply with the notice. Consequently, the complainant filed a complaint alleging commission of offence under Section 138 of the Negotiable Instruments Act.

3. On appearance before the Court pursuant to summons, particulars of the offence were read over to the accused at Exh. 10.

The accused pleaded not guilty and claimed to be tried. The complainant filed his affidavit in evidence and examined himself as well as two bank witnesses, namely Jagannath Kulkarni (P.W.2) and Gajanan Shenvi (P.W.3). The accused did not lead any defence evidence. However, he admitted the receipt of statutory notice and also admitted that he had replied to it. He did not specifically deny the dishonour of cheques. From the cross-examination of the complainant, the defence put forth by the accused was that he had borrowed Rs. 5,00,000 in March/April 2008 on interest at 6% per month. At that time, the complainant had allegedly obtained 10- 12 signed blank cheques. The accused claimed that he had repaid Rs. 10,80,000 by March 2011 towards the said loan.

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4. The learned Magistrate did not find the defence of the accused to be credible. The Court held him guilty of the offence punishable under Section 138 of the N.I. Act and sentenced him to undergo simple imprisonment for one year and three months. He was also directed to pay a fine of Rs. 4,00,000, in default to suffer further simple imprisonment for one month. On recovery of the fine, the amount was directed to be paid to the complainant as compensation. The said conviction and sentence have been challenged by the accused in this Revision Application.

5. Learned Advocate for the applicant contended that the complainant has failed to establish the existence of a legally recoverable debt. It was submitted that in 2008, 10 to 12 blank cheques were issued as security when the complainant advanced a loan. The loan, according to the accused, was repaid in 2011, but the complainant did not return the cheques and later misused them. It was, therefore, argued that the finding of the courts below that the cheques were issued towards discharge of a legally enforceable liability is contrary to the evidence on record. It was submitted that the judgments and orders of conviction deserve to be set aside.

6. On the other hand, learned Advocate for the legal heirs of the complainant submitted that the accused has admitted his signatures on the cheques. Once such admission is made, the statutory presumption under Section 139 of the Negotiable Instruments Act operates in favour of the complainant. It was further submitted that in neither the reply to statutory notice nor in his statement recorded under Section 313 of the Code of

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Criminal Procedure did the accused take the plea of repayment. Thus, the record clearly indicates that the cheques were issued towards discharge of a legally enforceable debt. The courts below, therefore, rightly held that the ingredients of Section 138 of the N.I. Act are proved. It was, therefore, prayed that the Revision Application be dismissed.

7. I have carefully gone through the record and proceedings. The first submission of the applicant is that the complainant has not proved that the cheques were issued in recognition of a legally recoverable debt. This contention does not merit acceptance. The defence of the accused before the Trial Court and the Appellate Court was that the loan amount said to have been advanced by the complainant stood repaid in the year 2011. However, no oral or documentary evidence has been produced either before the Trial Court or before the Appellate Court to support such a plea. The accused had every opportunity to establish repayment, but failed to do so. Further, in his reply to the statutory notice, he did not raise such a defence. Even while answering the incriminating circumstances under Section 313 of the Code of Criminal Procedure, no such stand was taken. It is well settled that the reply to the statutory notice is the first opportunity available to the drawer of the cheque to put forward his defence, and omission to take such a stand at that stage seriously undermines the credibility of the defence taken at a later stage.

8. It is an admitted position that the accused has signed the cheques in question. Once the signature on the cheque is admitted, the statutory presumption under Section 139 of the Negotiable

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Instruments Act comes into play. This presumption is that the cheque was issued for discharge of a debt or liability. Though such presumption is rebuttable, the law requires the accused to bring on record material which, if accepted, would make the existence of a legally recoverable debt improbable or doubtful.

9. Once execution of the cheque is admitted, the presumption under Section 139 must follow, and the burden shifts to the accused to rebut it by adducing evidence. Mere denial or a bald statement by the accused is not sufficient to rebut the presumption. The accused must lead cogent and convincing evidence to prove that the cheque was not issued towards a legally recoverable debt.

10. The accused can rebut the presumption either by leading direct evidence or by showing circumstances from the material on record that render the complainant's case improbable. However, in the present case, no material whatsoever has been placed by the accused. His defence of repayment is unsupported by any documentary proof such as receipts, bank statements, or acknowledgment from the complainant. The plea of misuse of cheques also remains unsubstantiated. In absence of such proof, the presumption under Section 139 remains unrebutted and the defence set up by the accused cannot be accepted.

11. In view of the above settled position of law and on appreciation of evidence, I find that both the Trial Court and the Appellate Court have rightly held that the ingredients of Section 138 of the Negotiable Instruments Act are proved beyond

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reasonable doubt. The findings recorded by both Courts are based on correct appreciation of facts and settled principles of law. I see no perversity or error of jurisdiction in the orders impugned. The conviction and sentence imposed upon the accused, therefore, do not call for interference. Accordingly, the Revision Applications stand dismissed.

12. As a consequence of dismissal of the Revision Applications, the Interim Applications do not survive and are disposed of accordingly.

(AMIT BORKAR, J.)