905-ALP-565-2018.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION APPLICATION FOR LEAVE TO APPEAL (PVT.) NO. 565 OF 2018 Prithviraj Piarelal Bhatia … Applicant Vs. Nitin Popatlal Shah And Anr. … Respondents Mr. Tanvir Abdul Hamid Shaikh for the Applicant. Mr. D. J. Haldankar, APP for the State. CORAM : GAURI GODSE, J. DATED : 17th OCTOBER 2025 ORDER: 1. This application is filed under Section 378(4) of the Criminal Procedure Code (‘Cr.P.C.’) by the original complainant to challenge the order passed by the learned Magistrate acquitting respondent no.1 for the offence punishable under Section 138 of the Negotiable Instruments Act. 2. It is the complainant’s case that the accused had approached the complainant for a friendly loan. Since the complainant knew that the accused was engaged in the business of selling Farsan and Stationery, he advanced Rs. 1 lakh as a friendly loan. The accused had promised to return the amount within 15 months, and accordingly, a writing dated 1st June 2001 was executed by the Page no. 1 of 7 MJ Jadhav MANGALTAI JAYWANT JADHAV Digitally signed by MANGALTAI JAYWANT JADHAV Date: 2025.10.27 13:44:20 +0530 905-ALP-565-2018.doc accused in favour of the complainant. The amount was not repaid within the time agreed. Along with the writing, a cheque drawn on ICCI Bank was also given to the complainant for repayment of the friendly loan. It is the complainant’s case that on instructions of the accused, the cheque was deposited on 25th February 2011. However, the same was dishonoured with remark ‘ACCOUNT CLOSED’. A demand notice was served upon the accused. The accused replied to the notice and denied the allegations made by the complainant. Though the Bank account was closed in 2001, the cheque of that account lying with the complainant was deposited in 2011. Since the demand notice was not complied with, the complainant filed the private complaint. 3. Learned counsel for the applicant submits that the promise to repay the amount along with the cheque was produced on record and proved in evidence. He submits that, though the accused requested that the document be sent for analysis to the handwriting expert, no steps were taken to complete the process. The complainant led evidence to support his case that the cheque received in 2001 was deposited in 2011 at the instructions of the accused. In the cross-examination, this evidence is not shattered. The accused has not produced any material to show that the amount paid by the complainant was ever repaid. Hence, the Page no. 2 of 7 905-ALP-565-2018.doc presumption under Section 139 of the Negotiable Instruments Act is accepted by the trial Court. However, the respondent is acquitted on the ground that the cheque issued in the year 2001 was deposited in 2011, towards a time-barred claim. He submits that it is a well- settled legal principle that even if a claim is time-barred, non- payment of the cheque amount would be enforceable so far as the criminal prosecution is concerned. 4. To support his submissions, learned counsel for the applicant relied upon the decision of the division Bench of this Court in the case of Dinesh B. Chokshi Vs. Rahul Vasudeo Bhatt & Anr.1, and the decision of the learned single Judge in the case of Shyamsundar Babu Naik Dessai Vs. Baban Anant Naik & Anr.2. He submits that by following the well-settled legal principles, the High Court of Rajasthan in the case of Ratiram Yadav Vs Gopal Sharma3 has also taken a view that a time-barred claim would be enforceable so far as the provisions of the Negotiable Instruments Act are concerned. 5. To support his submissions on the arguments that the payment of an amount to the accused and the presumption under Section 139 was proved, and thus, in the absence of any rebuttal 1 2012 ALL MR (Cri) 3656 2 2008 ALL MR (Cri) 2376 3 2025 RJ-JP 37822 Page no. 3 of 7 905-ALP-565-2018.doc evidence, the respondent accused would be liable to be convicted for the offence under Section 138, he relies upon the decision of the Hon’ble Apex Court in the case of Ashok Singh Versus State of Uttar Pradesh & Anr.4 and in the case of S.S. Production and Another Versus Tr. Pavithran Prasanth5. He therefore submits that the applicant be granted leave to file an appeal. 6. I have perused the papers of the application and the copies of the evidence that are placed on record along with the application. The accused replied to the demand notice and denied all the allegations, including the applicant’s claim that the accused was in the business of selling Farsan and Stationery and that, for business purposes, a friendly loan was taken. Though the accused has denied acceptance of the loan and issuance of the writing in the year 2011, the trial Court has relied upon the writing which is produced on record. So far as the issuance of cheque is concerned, the same is accepted. However, the trial Court held that there was no sufficient explanation for depositing the cheque in the year 2011, where, according to the complainant, the cheque was given at the time of writing in the year 2001. The trial Court has not dismissed the complaint on the ground that the time-barred claim based on the writing and the cheque of 2001 would not be enforceable. 4 CRIMINAL APPEAL NO.4171 OF 2024 5 2024 SCC OnLine SC 4935 Page no. 4 of 7 905-ALP-565-2018.doc 7. The trial Court has disbelieved the complainant’s case for want of any sufficient explanation for depositing the 2001 cheque in 2011. The complainant has supported his case by oral evidence, stating that the cheque was deposited in 2011 as per the instructions of the accused. However, in view of the dispute raised by the accused denying the issuance of the cheque and the instructions, the trial Court has raised doubts on the case made out by the complainant, which is based on the writing and the cheque issued in 2001. The cheque was deposited in 2011 for a legally enforceable debt. The trial Court has therefore referred to the evidence and disbelieved the complainant’s case for want of any evidence that the accused had authorized the complainant in 2011 for filing up the date on the cheque given in 2001 for presentation in 2011. Thus, in the absence of such evidence authorizing the complainant to put the date on the cheque in the year 2011 when the cheque was given in 2001, the trial Court held that it would not create any liability for holding the accused guilty for the offence under Section 138. 8. A perusal of the evidence led by the complainant appears to be limited to mere words, without any supporting evidence to substantiate that the cheque of 2001 was presented in 2011 on the instructions of the accused. Thus, based on the evidence on record, Page no. 5 of 7 905-ALP-565-2018.doc the trial Court held that the accused had raised a probable defence by showing the suspicious circumstances regarding the instructions given by the accused as alleged by the complainant. Thus, based on the evidence on record, the view taken by the trial Court is a possible view. 9. Since the complaint is not dismissed on the ground that the cheque cannot be enforced towards a time-barred claim, it would not be necessary to discuss the various decisions relied upon by the learned counsel for the applicant. So far as the decisions of the Hon’ble Apex Court relied upon by the learned counsel for the applicant are concerned, the same pertain to the presumption when a cheque is accepted to have been issued by the accused, and the presumption is required to be rebutted by a probable defence that the cheque was not issued towards a legally enforceable debt. The Hon’ble Apex Court held that the onus would not be on the complainant to prove the financial capacity that the cheque was issued towards the amount advanced. It was only when the presumption is rebutted by the accused by way of cogent evidence that the burden would shift upon the complainant to bring material before this Court to support his financial capacity. 10. However, in the present case, the trial Court has considered Page no. 6 of 7 905-ALP-565-2018.doc the evidence and acquitted the respondent on the ground that the suspicious circumstances shown by the accused constitute a probable defence, rebutting the presumption in favour of the complainant. Hence, in view of the facts of the present case and the evidence on record, the legal principles settled by the Hon’ble Apex Court in the aforesaid decisions would not be of any assistance in favour of the complainant’s case. 11. Considering the evidence on record, the view taken by the trial court is a plausible view that could have been taken based on the evidence on record. There can be interference in an appeal against acquittal if, after reappreciation of evidence, the only conclusion that could be drawn is that the guilt of the accused is proved beyond a reasonable doubt. In the present case, there is no ground for granting leave to file an appeal against the order of acquittal. 12. The Application is, therefore, dismissed. (GAURI GODSE, J.) Page no. 7 of 7