955.17appln (1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 911 CRIMINAL REVISION APPLICATION (ST.) NO.57 OF 2017 WITH CRIMINAL APPLICATION NO.955 OF 2017 MOHD YAKUB SAUDAGAR VERSUS 1. THE STATE OF MAHARASHTRA, 2. SHANKARRAO HARIBHAU GHULE (DECEASED),Thr. L.Rs. 2/A Smt. Sharda w/o Shankarrao Ghule 2/B Abhishek s/o Shankarrao Ghule ….. Mr V. S. Bedre, Advocate for Applicant Mr M. A. Aher, APP for Respondent No.1/State Mr D. A. Bide, Advocate for Respondent No. ….. CORAM : SUSHIL M. GHODESWAR, J. DATE : 19th AUGUST, 2026 P. C. : CRIMINAL APPLICATION NO.955 OF 2017 1. This is an application for condonation of delay of 214 days caused in filing revision application. 2. Heard Mr Bedre, learned Advocate for the applicant, learned APP for respondent No.1/State and Mr Bide, learned Advocate for respondent Nos.2/A and 2/B. 3. For the reasons stated in the application, the same is allowed. Delay is condoned. Criminal Application stands disposed of. 2026:BHC-AUG:38126 955.17appln (2) CRIMINAL REVISION APPLICATION (ST) NO.57 OF 2017 4. With consent of the respective parties, this criminal revision application is taken up for final hearing. 5. Learned Advocate Mr Bedre for applicant states that the complainant had filed a complaint against applicant for the offence punishable under Section 138 of the Negotiable Instruments Act (for short ‘N.I.Act’), stating therein that in 2005, applicant had approached him and demanded hand loan of Rs.2,50,000/-. Applicant/accused had assured to repay the said amount within a period of twelve months. Accordingly, complainant alleged to have paid Rs.2,50,000/- to applicant on 05/06/2005. On demand of that amount by complainant, applicant/accused issued a cheque bearing Cheque No.001924, dated 25/07/2006 of Rs.2,50,000/-, drawn on Ashok Sahakari Bank Ltd., Parvati Chambers, Main Road, Shrirampur, Dist. Ahmednagar. Thereafter, respondent/complainant deposited the said cheque at the Ahmednagar Merchant’s Co-operative Bank Ltd., Branch Market Yard, Ahmednagar on 25/07/2006. The said cheque came to be dis-honoured for the reasons “Payment Stopped By The Drawer” on 27/07/2006. Accordingly, complainant sent notice to applicant/ accused on 01/08/2006 for demanding the cheque amount. The 955.17appln (3) accused/applicant received the said notice on 03/08/2006, but as he failed to pay amount of cheque within a period of fifteen days, respondent/complainant filed a complaint before the learned Judicial Magistrate First Class, Ahmednagar. 6. Learned Judicial Magistrate First Class, Ahmednagar, vide the impugned judgment and order in S.T.C. No.6314/2006, dated 07/03/2008, convicted applicant for the offence punishable under Section 138 of the N.I.Act and sentenced him to suffer simple imprisonment of three months and fine of Rs.2,51,000/-, in default, to suffer simple imprisonment of six months. 7. Being aggrieved by the aforesaid impugned judgment and order, applicant preferred Criminal Appeal No.61/2008 before the learned Additional Sessions Judge, Ahmednagar, which came to be dismissed. Learned Additional Sessions Judge, Ahmednagar, vide the impugned judgment and order dated 18/04/2016, confirmed the judgment and order of conviction, passed by the learned Judicial Magistrate First Class, Ahmednagar. 8. Being aggrieved by the said judgment and orders of the learned Subordinate Courts, present applicant has approached this Court by filing present revision application. 955.17appln (4) 9. Before proceeding with the matter, learned Advocate for the respondent/complainant fairly states before this Court that the complainant is expired and though names of his wife and son are brought on record as his legal heirs, they have informed that they are not interested in prosecuting the instant matter further. 10. Learned Advocate for applicant submits that, applicant had filed appeal before the learned Sessions Court, challenging conviction order, and the learned Sessions Court, on condition of depositing Rs.40,000/-, suspended the sentence passed by the learned Judicial Magistrate First Class, Ahmednagar. He further submits that the complainant has failed to establish that the amount of cheque was issued towards recovering the debt amount, which was, in fact an unaccounted cash amount. He further submits that the provisions of Section 138 of the N.I.Act cannot be resorted to for recovering an unaccounted amount. A cheque issued in discharge of an alleged liability of repaying an unaccounted cash, cannot be said to be a cheque issued in discharge of a legally enforceable debt or liability within the meaning of explanation of Section 138 of the N.I.Act. Thus, he points out that the amount alleged to be advanced was unaccounted cash, and therefore, the liability to repay the said 955.17appln (5) unaccounted cash amount cannot be considered a legally enforceable debt within the meaning of Section 138 of the N.I.Act. To buttress this submissions, he relies on the judgment of the Hon’ble Apex Court in the matter of Sanjay Mishra Vs. Kanishka Kapoor @ Nikki and another, [2009 (4) Mh.L.J. 155]. 11. Another important limb of submission of learned Advocate for applicant is that, in fact, he had issued the said cheque to Dr. Prakash Jadhav for the purpose of security for amount taken from him. He then submits that applicant had repaid loan amount to said Dr. Prakash Jadhav, however, the said cheque is misused by Dr. Prakash Jadhav by handing it over to complainant. In pursuance of said misuse, applicant had also lodged police complaint against complainant and Dr. Prakash Jadhav, and therefore, he submits that cheque was never issued by the applicant towards discharge of any liability to pay any legally enforceable debt. He, therefore, submits that the learned Subordinate Courts virtually failed to examine this aspect and proceeded further to convict applicant in a mechanical manner. 12. Thus, he submits that, both the judgment and orders of the Subordinate Courts are perverse and liable to be quashed and set aside. 955.17appln (6) 13. Per contra, learned APP opposed this revision application. 14. After going through the submissions advanced by the learned Advocates for the respective parties, it is clear that cheque in question was indeed issued to the complainant. The complainant presented the said cheque to the Banker. After submission of cheque, the same was dis-honoured and the complainant, therefore, issued notice to revision applicant for paying the cheque amount. Since applicant failed to pay that amount, complainant had lodged complaint for the offence punishable under Section 138 of the N.I.Act. Initially, burden of proof was on the complainant to show that the said cheque was issued in discharge of a liability, which must be a legally enforceable debt. It has not come in the evidence that any amount of loan was given to revision applicant as a hand loan and in exchange of same, revision applicant had issued a cheque. Learned Advocate for applicant rightly pointed out that the amount alleged to be advanced was unaccounted cash, and therefore, the liability to repay the said amount cannot be considered a legally enforceable debt within the meaning of Section 138 of the N.I.Act. 15. In that view of the matter, I am of the considered opinion that the complainant has failed to establish that the cheque in question 955.17appln (7) was issued towards discharge of a legally recoverable debt. Thus, present applicant has made out a case. Hence, I pass the following order :- ORDER (I) The criminal revision application is allowed. (II) The impugned judgment and order dated 18/04/2016, passed by learned Additional Sessions Judge, Ahmednagar in Criminal Appeal No.61/2008, confirming the judgment of conviction and order of sentence, dated 07/03/2008, passed by the learned Judicial Magistrate First Class, Ahmednagar in S.T.C. No.6314/2006, is hereby quashed and set aside. Applicant is acquitted of the offence punishable under Section 138 of the N.I.Act. (III) The bail bonds of applicant, if any, stands cancelled. (IV) Record and Proceedings (R&P) be sent back to the Subordinate Courts forthwith. 16. At this stage, learned Advocate Mr Bide for the respondent/complainant, on instructions, submits that, since the amount of Rs.40,000/- was deposited by applicant before the Sessions Court and could have been withdrawn by the complainant, the same 955.17appln (8) may not be permitted to applicant/accused to withdraw, as the complainant has expired. 17. Hence, if the amount of Rs.40,000/- deposited by applicant has not been withdrawn by complainant (now deceased) and is still lying with the Sessions Court, the same could be permitted to be withdrawn by applicant. [SUSHIL M. GHODESWAR, J.] sjk