[Cites 12, Cited by 0]
Bombay High Court
Dhanraj Parasmal Chordiya vs Vinod Tulsidas Khera on 17 March, 2026
2026:BHC-NAG:4389
revn.70.2016.Jugment.odt
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL REVISION APPLICATION NO.70 OF 2016
Dhanraj Parasmal Chordiya,
Aged about 52 years,
Occupation : Business and agriculturist,
Prop. Prajyot Jewellers,
Old State Bank of India Road,
At P.O., P.S. and Taluka Wani,
District Yavatmal. ..... APPLICANT
// VERSUS //
1. State of Maharashtra,
Through Police Station Officer, .... Deleted.
Police Station, Wani,
Taluka Wani,
District Yavatmal.
1. Vinod Tulsidas Khera,
Aged about 56 years,
Occupation : Business,
Prop. Tulsidas Odhavji Jewellers,
Gandhi Chowk, Wani,
Talulka Wani, District Yavatmal. .... RESPONDENT
-------------------------------------------
Mr. A. S. Ponkshe, Advocate h/f Mr. C. M. Samarth, Advocate for
the applicant.
Mr. Abhishek Tripathi, Advocate h/f Mr. Mohd. Akhtar Ansari,
Advocate for the respondent.
-------------------------------------------
CORAM : URMILA JOSHI-PHALKE, J.
RESERVED ON : 27.02.2026
PRONOUNCED ON : 17.03.2026
JUDGMENT :
1. Heard.
2. Admit.
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3. Heard finally with the consent of the learned Counsel for
the parties.
4. The revision application challenges the judgment and
order of the learned Ad-hoc Additional Sessions Judge, Kelapur
by which he has quashed and set aside the impugned judgment
and order of conviction and sentenced of imprisonment and order
of payment of compensation passed in Summary Criminal Case
No.1170/2007 dated 25.03.2014.
5. The brief facts which are necessary for the disposal of the
present revision application are as under:
The applicant as well as the respondent are Jewellers and
they entered in to the transaction on 30.09.2005 by which gold
ornaments worth of Rs.6,90,560/- were sold by the applicant,
who is the original complainant to the respondent who is the
accused and bill was drawn. The respondent accused has issued
an account payee cheque amounting to Rs.6,90,560/- drawn on
The Yavatmal Urban Co-operative Bank Ltd., branch at Wani, in
favour of Prajyot Jewellers of which the applicant is Proprietor
signed by the accused in the capacity of the Proprietor of
Tulsidas Odhavji Jewellers. On 12.04.2007, the applicant
presented the said cheque in Yavatmal Urban Co-operative Bank
Ltd., Branch at Wani. However, it is dishonoured and returned
with an endorsement 'Account Closed'. Therefore, on 11.05.2007
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applicant issued notice which was received by the respondent
accused on 15.05.2007. After receipt of the notice, as the
amount was not paid therefore, present applicant complainant
filed a complaint under Section 138 of the Negotiable
Instruments Act (for short 'N.I. Act'). The learned Magistrate
has taken the cognizance of the said complaint and summon was
issued against the respondent. After recording of the plea, by
which the respondent denied the contention of the complainant
that he has committed an offence punishable under Section 138
of N.I. Act. The complainant has examined himself and also
witness Auditor in support of his contention. The learned
Magistrate has appreciated the evidence and convicted the
present respondent of the offence punishable under Section 138
of N. I. Act and sentenced to suffer simple imprisonment for one
month and also directed to pay cheque amount of Rs.6,90,560/-
towards the compensation amount. Being aggrieved and
dissatisfied with the same, the respondent preferred an Appeal
bearing No.9/2014. The said appeal was partly allowed and the
case was remanded back to the learned trial Court for fresh trial
and for passing proper decision according to law.
6. The said order of remanding back, the matter was further
challenged before this Court in Criminal Revision No.39/2015.
This Court by order dated 25.08.2015, set aside the impugned
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judgment and order passed by the learned Ad-hoc Additional
Sessions Judge, Kelapur in Criminal Appeal No.9/2014 and
directed the learned Ad-hoc Additional Sessions Judge, Kelapur
to decide the appeal in accordance with law within a period of six
months from the date of receipt of the order. The learned
Additional Sessions Judge, Kelapur, in view of the directions of
this Court decided the appeal by judgment dated 03.03.2016, by
which the criminal appeal was allowed and the conviction,
sentence and compensation order passed in Summary Criminal
Case No.1170/2007 dated 25.03.2014 passed by the learned
Judicial Magistrate First Class, Wani was quashed and set aside
and the accused is acquitted.
7. Being aggrieved and dissatisfied with the same, present
revision application is preferred by the original complainant
applicant.
8. Heard learned counsel for the applicant, who submitted
that undisputedly there was a transaction between the present
applicant and the respondent in view of bill dated 30.09.2005.
The respondent has purchased the gold ornaments worth of
Rs.6,90,560/- and the bill was wrong to that effect. Against the
said transaction, the respondent accused issued an account
payee cheque amounting to Rs.6,90,560/- drawn on Yavatmal
Urban Co-operative Bank Ltd., Branch at Wani, in favour of
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Prajyot Jewellers, of which the applicant is Proprietor signed by
the accused in the capacity of the Proprietor of Tulsidas Odhavji
Jewellers. The said cheque was presented on 12.04.2007 in The
Yavatmal Urban Co-operative Bank Ltd., in the account of the
complainant, but the same was dishonoured and returned with
an endorsement 'Account Closed'. Therefore, on 11.05.2007, the
notice was issued. After receipt of the notice on 15.05.2007, the
amount was not paid and thereby the respondent has committed
an offence under Section 138 of N.I. Act. He submitted that the
cheque was issued against the discharge of legal an enforceable
debt, therefore, the presumption under Section 139 in favour of
the holder attracts. The respondent has not rebutted the said
presumption, in view of that the learned trial Court i.e. the
Judicial Magistrate First Class, Wani has rightly convicted the
respondent. However, the learned Additional Sessions Judge has
not considered this aspect that the presumption is in favour of
the present applicant, who is the holder in due course. All the
ingredients of the offence are established by the complainant.
The presumption is also not rebutted by taking a probable
defence, in view of that, the judgment and order passed by the
learned Additional Sessions Judge, Kelapur requires interference
by allowing the revision and by setting aside the order of the
learned Additional Sessions Judge, Kelapur.
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9. Per contra, learned counsel for the respondent
Mr. Abhishek Tripathi submitted that the documents on record
sufficiently shows that transaction was between the Prajyot
Jewellers, Wani and one Tulsidas Khera. Exh.58 which is proved
by the complainant shows that the amount of Rs.6,90,560/- was
shown due against said Tulsidas Khera. The cheque was issued
by the respondent allegedly as Proprietor of Tulsidas Odhavji
Jewellers. The complainant has not proved that the respondent
is the Proprietor of said Tulsidas Odhavji Jewellers, as no
document is filed on record. A bare statement of the
complainant that in the capacity of the Proprietor of the said
Tulsidas Odhavji Jewellers, the cheque was issued itself is not
established. As foundation facts itself are not proved by the
complainant, therefore, presumption will not attract. Exh.31/c is
the bill which is also in the name of Tulsidas Odhavji Khera.
Thus, Exh.58 shows that the amount is due against one Tulsidas
Odhavji Khera. The bill is also in the name of M/s. Tulsidas
Odhavji Khera and name of the respondent is mentioned as
Proprietor. The cheque is also issued as a Proprietor of Tulsidas
Odhavji Jewellers. Thus, evidence that there is a legal an
enforceable debt due from Tulsidas Odhavji Jewellers is not
established. Thus, the complainant has not proved that the
respondent was the holder in due course of the said cheque. The
learned Additional Sessions Judge, Kelapur has rightly considered
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the same and rightly held that the complainant failed to prove
that legal an enforceable debt was due against M/s. Tulsidas
Odhavji Jewellers. In view of that, no interference is called for.
10. Learned counsel for the applicant placed reliance on the
decision of Rangappa vs Sri Mohan reported in (2010) 11
SCC 441, whereas the learned counsel for the respondent
placed reliance on the decision the decision of Vijay vs Laxman
and another reported in (2013) 3 SCC 86, Milind Shripad
Chandurkar Vs. Kalim M. Khan and another reported in
2011 (4) Mh.L.J. 96.
11. I have given thoughtful considerations for the
submissions made by the learned counsel for the parties. The
applicant, who is the original complainant has challenged the
judgment and order of acquittal passed by the learned Additional
Sessions Judge, Kelapur in this revision. The submissions made
by the learned counsel for the revision applicant are to be
considered within the scope of revision. The scope of
interference by this Court in revisional jurisdiction under Section
397 of Code of Criminal Procedure Code, is limited. In its
revisional jurisdiction, this Court is not expected to sit as a court
of appeal and reappreciate the evidence. However, when the
finding of the Courts below, appear to have been recorded, on
the basis no evidence, or evidence which even if believed in
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entirety cannot prove the guilt of the accused for the offences
charged, this Court would be justified in exercising its jurisdiction
under Section 397 of the Code of Criminal Procedure. The
complainant has come with a case that against the bill No.18
dated 30.09.2005 against the purchase of gold ornaments. The
respondent issued a cheque of Rs.6,90,560/-. Thus, the cheque
was issued against the legal an enforceable debt. Thus, he came
with a case that the cheque was issued against the unpaid
amount of bill dated 30.09.2005 bearing No.412606 dated
16.10.2006 for Rs.6,90,560/-. The evidence of the complainant
further shows that the said cheque was issued by the respondent
as Proprietor of Tulsidas Odhavji Jewellers. The said cheque was
presented by him in his bank account, but it remained unpaid
and returned with an endorsement 'Account Closed'. Therefore,
the requisite compliance that is the notice was issued, which was
issued by the respondent. After receipt of the notice also, the
amount was not paid, and therefore, the complaint was filed.
12. In support of the contention, the complainant entered
into the witness box. His evidence shows that he has maintained
the account of his business and shown the outstanding cheque
amount in ledger book maintained by him. However, he has not
produced the ledger before the learned trial Court. His evidence
further shows that he is income tax payer and he has not shown
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the transaction impugned with the accused, in his income tax
returns for the relevant year, but he has not produced the said
income tax returns in this case. He further admits that there has
been no transaction between him and the accused since
26.11.2005. He further states that the transaction with the
accused was dated 30.09.2005. His evidence further shows that
in Exh.58 there is no entry showing any outstanding amount
against the person named Vinod. In the document there is no
entry to the effect that the amount is outstanding against
M/s. Tulsidas Odhavji Jewelles. He stated that the respondent is
the Proprietor of the said firm and therefore, the name of Vinod
Khera is appearing in the document. His evidence further shows
that he used to get the signature over the bill of the said
customer if his bill amount exceeds the amount of Rs.20,000/-
and he used to pay value added tax. He further states that the
entry showing the payment of V.A.T. is not appearing in Exh.58.
He further shows that document Exh.58 does not bear any
signature being assessee. He has also not find any document on
record to show that he is the Proprietor of Prajyot Jewellers on
record. He further states that transaction sale and purchase as
shown in the document Exh.58 in that respect all the original
documents pertaining to sell are with him and he has brought
those documents with him before the Court. But he do not feel
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it necessary to file those documents on record, therefore, he has
not filed the same.
13. In support of his contention, he also placed reliance on
the evidence of witness Nilesh B. Lathiya, who is his Chartered
Accountant. The evidence of this witness Nilesh Lathiya shows
that he has examined the balance sheet, profit and loss account
for the year ending on 31 st March 2006. He also states that he
has prepared the balance sheet of the said assessee i.e. the
complainant on 31.03.2006 including the profit and loss account
of the year. His cross-examination shows that he has no
personal knowledge of transaction covered in Exh.58. The
accounts are maintained by the clients themselves, he just
audited the accounts and certified about its correctness.
14. Thus, on perusal of the entire evidence it reveals that the
document in respect of income tax returns have not been
presented on record at the time of the evidence by the present
applicant. Though he admits that he maintained the account
books of his business and the transaction with the respondent
have been shown in those accounts books. The evidence further
shows that the outstanding amount has been shown in respect of
the respondent in the ledger, but those account books and ledger
have not been presented on record at the time of the evidence of
the present applicant. The transaction between the present
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applicant and the respondent was dated 30.09.2005. Exh.58 is
the relevant document which is the balance sheet. The title of
the document shows that M/s. Prajyot Jewellers, Wani scheduled
forming the part of the balance sheet as on 31.03.2006. The
amount of Rs.6,90,560/- was shown against one Tulsidas Khera
as per the said document, which is at Exh.58. Thus, amount of
Rs.6,90,560/- was shown against one Tulsidas Khera. There is
no reference in the said balance sheet regarding the amount due
from Tulsidas Odhavji Jewellers. There is no counter signature
on the document Exh.58 where handwriting contents are
mentioned. In Exh. 58, there is no entry showing any
outstanding against the person namely Vinod, either in personal
capacity or as a Proprietor of Tulsidas Odhavji Jewellers. The
applicant has admitted in his cross-examination that there is no
outstanding against Vinod Tulsidas Khera as a Proprietor of M/s.
Tulsidas Odhavji Jewellers, therefore entry to that effect is not
appearing in the document Exh.58. The entry showing payment
of value added tax is also not appearing in Exh.58. Exh.58 is
also not bear the signature of the complainant. At the time of the
evidence, the complainant has not presented on record any
document showing that he is the Proprietor of Prajyot Jewellers.
Thus, from this evidence it is clear that the applicant has not
placed on record any document to show that being he is the
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Proprietor of Prajyot Jewellers. He is the holder in due course of
the said cheque.
15. Section 8 of the N.I. Act, defines the expression 'holder'
as:
8. "Holder". - The "holder" of a promissory note, bill of
exchange or cheque means any person entitled in his
own name to the possession thereof and to receive or
recover the amount due thereon from the parties
thereto. Where the note, bill or cheque is lost or
destroyed, its holder is the person so entitled at the
time of such loss or destruction."
16. As per Section 9, a 'holder in due course' is a person who
for consideration has become a possessor of the instrument if
payable to a bearer of if payable to the order to the person
mentioned i.e. the payee, or becomes the indorsee thereof.
Holder in due course means the original holder or a transferee in
good faith, who has acquired possession of the negotiable
instrument for consideration without having for sufficient cause
to believe that there was any defect in the title of the person
from whom he has derived the title. Negotiation in case of
transfer should be before the amount mentioned in the
negotiable instrument becomes payable. Clause (g) to Section
118 of N.I.Act states that unless contrary is proved the 'holder'
of a negotiable instrument is presumed to be a 'holder in due
course'. But the proviso qualifies the presumption, where the
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instrument has been obtained from its lawful owner or a person
in lawful custody thereof by means of an offence or fraud or has
been obtained from the maker or acceptor thereof by means of
an offence or fraud or by an unlawful consideration. In such
cases the burden of proving that the 'holder' is a 'holder in due
course' lies on the person claiming to be so. Thus, as far as the
present applicant is holder in due course as a Proprietor of the
Prajyot Jewellers itself is not established by him.
17. Learned counsel for the applicant placed reliance on the
decision of Rangappa vs Sri Mohan referred supra wherein it is
held by the Hon'ble Apex Court that presumption mandated by
Section 139 includes a presumption that there exists a legally
enforceable debt or liability. However, such presumption is
rebuttal in nature. It is further observed that the presumption
mandated by Section 139 of the Act does indeed include the
existence of a legally enforceable debt or liability. To that extent,
the impugned observations in Krishna Janardhan Bhat v.
Dattatraya G. Hegde, [(2008) 4 SCC 54,] may not be correct.
However, this does not in any way cast doubt on the correctness
of the decision in that case since it was based on the specific
facts and circumstances therein. As noted in the citations, this is
of course in the nature of a rebuttable presumption and it is open
to the accused to raise a defence wherein the existence of a
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legally enforceable debt or liability can be contested. However,
there can be no doubt that there is an initial presumption which
favours the complainant. It is further observed that Section 139
of the Act is an example of a reverse onus clause that has been
included in furtherance of the legislative objective of improving
the credibility of negotiable instruments. While Section 138 of
the Act specifies a strong criminal remedy in relation to the
dishonour of cheques, the rebuttable presumption under Section
139 is a device to prevent undue delay in the course of litigation.
However, it must be remembered that the offence made
punishable by Section 138 can be better described as a
regulatory offence since the bouncing of a cheque is largely in
the nature of a civil wrong whose impact is usually confined to
the private parties involved in commercial transactions. In such a
scenario, the test of proportionality should guide the construction
and interpretation of reverse onus clauses and the defendant-
accused cannot be expected to discharge an unduly high
standard or proof.
18. As far as the present case is concerned from the
cross-examination of the applicant the accused has brought on
record that the entry in Exh.58 is not in the name of Tulsidas
Odhavji Jewellers. There is no mentioned that the respondent is
the Proprietor of the said M/s. Tulsidas Odhavji Jewellers. There
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is no mentioned and the evidence shows that there is no
outstanding against Vinod Tulsidas Khera as a Proprietor of M/s.
Tulsidas Odhavji Jewellers. The entry is not there on Exh.58 as
to the value added tax. It further came in the evidence that the
Exh.58 does not bear the signature of the present applicant.
Thus, on the basis of the cross-examination, the respondent has
rebutted the presumption.
19. Learned counsel for the respondent also placed reliance
on the decision of Vijay vs Laxman & Anr. (Supra), wherein
the Hon'ble Apex Court held that the presumption under Section
118(a) and 139 of the Act are rebuttable and the standard of
proof required for such rebuttal is preponderance of probabilities
and not proof beyond reasonable doubt. For rebutting such
presumption, what is needed is to raise a probable defence. Even
for the said purpose, the evidence adduced on behalf of the
complainant could be relied upon. Inference of preponderance of
probabilities can be drawn not only from the materials on record
but also by reference to the circumstances upon which he relies.
20. On going through the entire evidence on record,
admittedly, it is not reappreciated, but considering the same the
only issue involved herein is whether the applicant owns the said
firm and whether he is the Proprietor of the said Prajyot
Jewellers. The Appellate Court held that there is no evidence
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adduced by the present applicant to show that it is the sole
proprietor concerned and he is the sole Proprietor of the said
firm. The Appellate Court further held that the applicant has
admitted during his cross-examination that he has not produced
any document on record to show that he is the Proprietor of the
said Prajyot Jewellers. It is specifically stated by the applicant
that there is no necessity to produce the said document on
record. Thus, it is evident that the firm namely Prajyot Jewellers
has been paying and that the applicant who has not proved that
he is the Proprietor of the said firm. He cannot claim to be the
payee of the cheque nor can he be holder in due course, unless
he establishes that the cheques had been issued to him or in his
favour or that he is the sole Proprietor of the concerned and
being so, he could also be paying himself and thus entitled to
make the complaint. The applicant miserably failed to prove any
nexus or connection by adducing any evidence whatsoever with
namely the Prajyot Jewellers. Mere statement in the affidavit in
this regard is not sufficient to meet the requirements of law. The
applicant failed to produce any documentary evidence to connect
himself with the said firm. In addition to that, the evidence
further shows that Exh.58 shows that the amount is due against
one Tulsidas Khera to the tune of Rs.6,90,560/- which is the
amount mentioned in the cheque. Admittedly, the said cheque
was not issued by any Tulsidas Khera. Exh.58 nowhere shows
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that the amount is due from Tulsidas Odhavji Jewellers or from
Vinod Khera. The bill is showing the name of Tulsidas Odhavji
Khera dated 30.09.2005 and name of Vinod Khera is also
mentioned in that, but it is without adding the value added tax.
The impugned cheque which is at Exh.32 is issued in the name of
Prajyot Jewellers. Thus, in view of the judgment of the Hon'ble
Apex Court in the case of Milind Shripad Chandurkar (supra),
to claim that he is the holder in due course. The applicant has to
prove that he is the sole Proprietor of the concerned and he is
the holder in due course and entitled to make the complaint.
The Appellate Court has rightly considered the same and rightly
allowed the appeal.
21. Thus, it is manifest that except the bald assertion made
by the complainant in the complaint and reiterated on oath in his
deposition that he is the sole Proprietor of M/s. Prajyot Jewellers,
there is no other cogent, reliable and trustworthy documentary
evidence to prove nexus or connection of the complainant with
the said firm. The evidence laid by the complainant is wholly
deficient in content to prove his nexus or connection with the
firm. As its sole Proprietor and the mere averments in the
complaint to this effect as reiterated in his deposition is not
sufficient to establish such nexus or connection as has been held
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by the Hon'ble Apex Court in the case of Milind Shripad
Chandurkar referred supra.
22. In view of that, the revision petition being devoid of
merits, and liable to be dismissed. Hence, revision application is
dismissed.
(URMILA JOSHI-PHALKE, J.)
Sarkate.
Signed by: Mr. A.R. Sarkate
Designation: PA To Honourable Judge
Date: 17/03/2026 14:49:41
