[Cites 7, Cited by 0]
Bombay High Court
Ganesh Laxman Tathe vs Kamruddin Kasambhai Attar And Another on 6 March, 2026
2026:BHC-AUG:9355
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO. 323 OF 2025
WITH CRIMINAL APPLICATION NO. 825 OF 2026 IN REVN/323/2025
. Ganesh S/o Laxman Tathe
Age: 52 years, Occu.: Business,
R/o. Lata Vihar, Bhukarwadi,
Near Marathi School, Balika
Ashram Road, Savedi,
District Ahmednagar. ....Applicant
Versus
1. Kamruddin Kasambhai Attar
Age" 58 years, Occu.: Military Retire,
R/o. Plot No.55, Gurukrupa Colony,
In front of Kakasaheb Mhaske School,
Nagapur, Tal. And District Ahmednagar.
2. The State of Maharashtra .....Respondents
.....
Advocate for Applicant : Mr. Joyeb I. Shaikh
APP for Respondent no.2 : Mr.S.M.Ganachari
Advocate for Respondent no.1 : Mr.Vishwajeet Ramesh Jain
.....
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 04 MARCH, 2026
PRONOUNCED ON : 06 MARCH, 2026
ORDER :
1. Instant revision application arises out of judgment and order
dated 03-07-2025 passed by learned Additional Sessions Judge,
Ahmednagar, dismissing the appeal and confirming judgment and
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order of Additional Chief Judicial Magistrate, Ahmednagar in SCC
No.669 of 2022 dated 28-02-2023.
2. Present respondent instituted SCC No.669 of 2022 against
present revision petitioner on the premise that, complainant and
accused being friends and as accused was in need of funds, he
demanded hand-loan of Rs.8,00,000/-. Complainant complied with
the said demand by extending hand-loan to the tune of Rs.7,76,000/-
and towards repayment of the same, accused issued cheque, which
on its presentation, got dishonoured and therefore, after demand,
when there was failure to pay cheque amount, above proceedings
were instituted against accused, which ended up in conviction by
learned Additional Chief Judicial Magistrate by order dated
28-02-2023 imposing sentence of simple imprisonment for six
months and to pay compensation of Rs.2,30,000/-.
3. Feeling aggrieved by the above, accused preferred Criminal
Appeal No.90 of 2023 challenging the impugned judgment dated
28-02-2023. On complete re-appreciation of evidence, learned
Additional Sessions Judge, Ahmednagar dismissed the appeal by
judgment and order dated 03-07-2025.
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4. Present revision is offshoot of above order by invoking Section
397 read with Section 401 of the Code of Criminal Procedure. Before
adverting to the merits, it would be fruitful to highlight the scope of
Section 397 while exercising revisionary powers.
While exercising powers under Section 397 of the Cr.P.C., this
Court is merely expected to test the legality, propriety or illegality in
the findings recorded by learned trial court. Such powers are to be
exercised to prevent miscarriage of justice and when there are glaring
errors on the face of order or there is failure and non compliance of
law. Re-appreciation is to be avoided unless findings are patently
perverse and as such, is the narrow scope of revisional court. Law
regarding the scope of revision is elucidated in catena of judgments.
Though there are catena of judgments, the landmark judgment of
Amit Kapoor v. Ramesh Chander and another (2012) 9 SCC 460 is
relied and the relevant observations therein are borrowed and quoted
as under :
"12. Section 397 of the Code vests the court with the
power to call for and examine the records of an inferior
court for the purposes of satisfying itself as to the legality
and regularity of any proceedings or order made in a case.
The object of this provision is to set right a patent defect
or an error of jurisdiction or law. There has to be a well -
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founded error and it may not be appropriate for the court
to scrutinise the orders, which upon the face of it bears a
token of careful consideration and appear to be in
accordance with law. If one looks into the various
judgments of this Court, it emerges that the revisional
jurisdiction can be invoked where the decisions under
challenge are grossly erroneous, there is no compliance
with the provisions of law, the finding recorded is based
on no evidence, material evidence is ignored or judicial
discretion is exercised arbitrarily or perversely. These are
not exhaustive classes, but are merely indicative. Each
case would have to be determined on its own merits."
5. Thus, re-appreciation of evidence is not expected at hands of
this Court and it is only to be seen whether there is any patent
illegality, error or perversity in the impugned order. Whether
relevant material and evidence has been overlooked or whether
relevant evidence has been ignored while passing the impugned
order. With this limited scope order under challenge are tested.
6. In trial Court, by way of SCC 669 of 2022 case was set up by
present respondent no.1 that he and accused are friends. That,
accused is merchant dealing with onion. In February 2021 accused
was in need of Rs.7,00,000/- to Rs.8,00,000/- and borrowed hand-
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loan from complainant with assurance to repay the same in a year.
Complainant arranged Rs.7,76,000/- from time to time from period
February 2021 to September 2021 and accused assured to repay the
loan in installments upto 30-04-2022 and also executed loan receipts.
For repayment of the hand-loan, accused issued cheque dated
28-11-2021, which on presentation, was dishonoured and therefore,
complainant issued statutory notice, which was returned with remark
"unclaimed".
7. Considering the same to be a good service, learned Additional
Chief Judicial Magistrate issued summons to the accused and on his
appearance recorded his plea. His defence was in spite of repayment
of loan, false complaint being lodged. This was solitary defence.
8. Learned Additional Chief Judicial Magistrate formulated
necessary points, and initially on the strength of complainant's
evidence as well as documentary evidence, reached to a finding that
complainant has proved execution of cheque by accused. Issuance of
cheque under signature of accused was not denied and therefore,
presumption available under Sections 118 and 139 of the Negotiable
Instruments Act was pressed into service. Accused seems to have
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failed to rebut the said presumption and therefore, it was held that
complainant proved that the cheque was issued towards discharge of
legally enforceable debt. Further on testing the bank memo and
taking into account the statutory legal notice, postal
acknowledgment, learned Additional Chief Judicial Magistrate
answered remaining points in affirmative and finally by judgment
and order dated 28-02-2023, returned the guilt for offence under
Section 138 of the Negotiable Instruments Act.
9. Dissatisfied by the same, Criminal Appeal seems to have been
preferred and copy of judgment of learned First Appellate Court in
Criminal Appeal No.90 of 2023 of is also placed on record. Even
First Appellate Court, which is the last fact finding court, formulated
points, re-appreciated the oral and documentary evidence and
learned First Appellate Court also recorded a finding that case of
presumption under Sedction 139 of the Negotiable Instruments Act
has been made out and further failure on the part of accused to rebut
the same. Learned First Appellate Court also accepted the
complainant's case and recorded a finding that essential ingredients
of Section 138 of the Negotiable Instruments Act are made out.
Finally, taking into account defence of accused, held that defence has
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not been probabilized about either misuse of cheque or there to be no
legally enforceable debt and ultimately dismissed the appeal for want
of merits.
10. Thus, here, there are two concurrent findings rendered by
learned trial Court as well as learned Fist Appellate Court, who also
undertook the exercise of complete re-appreciation and analysis of
evidence on record. There being concurrent findings, and no point
made out on merits demonstrating error, illegality or perversity in
both the impugned orders, revision fails. Hence, following order :
ORDER
(I) Criminal Revision Application No.323 of 2025 stands
dismissed.
(II) Criminal Application No.825 of 2026 is allowed in
terms of prayer clause "B".
( ABHAY S. WAGHWASE )
JUDGE
SPT
