[Cites 2, Cited by 0]
Bombay High Court
Varsha Baburao Kale vs Kakasaheb Dhondiram Jadhav on 9 January, 2026
2026:BHC-AUG:644
ALP-100-2024
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPLICATION FOR LEAVE TO APPEAL BY PVT.PARTY NO.100 OF 2024
Varsha Baburao Kale,
Age : 41 years, Occu. : Household,
R/o. Shivshankar Colony,
Chh. Sambhajinagar ... Applicant
(Orig. Complainant)
Versus
Kakasaheb Dhondiram Jadhav,
Age : 52 years, Occu. : Business,
R/o. P. No. 62, Gajanan Nagar,
Galli No.1, Garkheda Parisar,
Chh. Sambhajinagar. ... Respondent.
(Orig. Accused)
.....
Mr. Yogesh A. Jadhav, Advocate for Applicant.
Mr. A. M. Hajare, Advocate for Respondent.
.....
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 07 JANUARY 2026
PRONOUNCED ON : 09 JANUARY 2026
ORDER :
1. Original complainant, who instituted S.C.C. No.8655 of
2020, is aggrieved by the order of acquittal passed by learned
Additional Chief Judicial Magistrate, Court No.3, Aurangabad dated
19.03.2024 acquitting the accused from offence punishable under
section 138 of Negotiable Instruments Act and is thereby seeking
leave to file appeal against the same.
2. Present applicant instituted above referred complaint
ALP-100-2024
under section 138 N.I. Act alleging that, complainant and accused are
relatives and have cordial relations. As accused was in need of
financial help, on demand Rs.3,00,000/- hand loan was given.
Towards repayment of the same, two cheques of Rs.1,50,000/- each
were issued by accused, but on its presentation for realization, the
same were dishonoured, and therefore, after legal notice, above
complaint was lodged seeking action under 138 N.I. Act. Accused
appeared and contested the complaint denying borrowing of any
hand loan, but took a stand that cheques in question were given by
him to the husband of complainant as a security while they both were
part of a group which was running Bhishi and the same being
misused. The respective cases of each side were appreciated by
learned court below and reached to a finding that accused has
succeeded in probabilizing his defence and has thereby rebutted the
presumption in favour of complainant and ultimately acquitted the
accused.
3. It seems that, in the trial court, complainant has adduced
documentary evidence like cheques in question, bank memo and legal
notice. Accused has also adduced documentary evidence at Exh.55
and 57 and to establish his defence examined himself below Exh.43.
4. On one hand complainant has come with a case of
ALP-100-2024
extending loan to the tune of Rs.3,00,000/- due to financial difficulty
of accused, who is a relative and cheques issued towards the same to
be dishonoured. It was the specific defence taken by the accused that
there was no borrowing of amount and rather cheques in possession
of complainant's husband, who was running a Bhishi, of which even
accused was a member, were misused.
5. Complainant and accused have both adduced evidence as
stated above, admittedly, signature over the cheques, is not disputed
and what is questioned is borrowing of loan. As accused has not
refuted cheques in possession of complainant and signature over it,
initial presumption available under section 138 of N.I. Act had
automatically come into play and burden shifted on accused to rebut
the same.
6. To prove his defence, accused has examined himself at
Exh.43 and had stated that, he and husband of complainant, namely
Babural Kale were members of Bhishi since 2018. In the said
transaction, complainant's husband had obtained three signed blank
security cheques and in spite of demand, the same not to be returned
and rather refused to be returned, retained the same and further
misused to show loan transaction. Though cross examined by
complainant about version of accused, it does not seem to have been
renders doubtful.
ALP-100-2024
7. Another defence taken by accused is that, even son of
complainant had lodged proceedings under section 138 of N.I. Act,
alleging loan transaction and the said case is pending. Copy of the
said S.C.C. are also placed on record. Even copies of complaints filed
by husband of complainant against several persons under section
138 are also placed on record. Though complainant in her evidence
expressed her willingness to examine her husband, surprisingly she
has refrained from doing so.
8. Learned trial court has in paragraph 13 noted that
complaints filed by the husband of complainant against other persons
are verbating identical to the contents of complaint against present
accused.
9. Therefore, the defence of accused about complainant
misusing the cheques in the possession of her husband has been
probabilized to some extent.
10. It further appears that complainant has failed to give
details as to the source from where Rs.3,00,000/- were raised by her
to extend hand loan. Agriculture income was pointed to be the
source, but learned trial court has in paragraph 15 noted that the
7/12 extract were not of the year, of which hand loan transaction
with accused was said to have taken place. Learned trial court, in
ALP-100-2024
paragraph 16, has noted that complainant relied on statement of
account to demonstrate her financial capacity, but on scrutiny of the
said statement, it was noticed that there was no entry depicted in the
bank statement reflecting withdrawal of Rs.3,00,000/-, which were
allegedly given at relevant time. Therefore, on such count also,
complainant's case was rendered doubtful.
11. Visited the impugned judgment. It appears that, learned
trial court has considered and appreciated the evidence by both sides
on the line of legal requirements. Both oral and documentary
evidence is carefully appreciated while recording a finding that
complainant failed to make out the case for commission of offence
under section 138 of N.I. Act and rather defence succeeded in
probabilizing his defence. Even on complete re-appreciation of the
evidence, this court is also firm view that it was the case fo acquittal
for above reasons. No case being made out on merits to accord leave,
I proceed to pass the following order : -
ORDER
(i) Leave is refused.
(ii) Application is rejected.
(ABHAY S. WAGHWASE, J.)
Tandale
