CriApeal-431-2006 -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.431 OF 2006 Smt. Kamalabai Kashinath Patil (Deceased) Proprietor of Kamal Distributors, Through her Legal heirs Shri. Chaitanya Kashinath Patil Age: 45 years, Occu.: Service, R/o. “Kamal Niwas”, Tagor Nagar, Jalgaon, Tq. And Dist. Jalgaon. .. Appellant Versus Sau. Tulsabai Kalidin Pardeshi (Mochi) Age: Major, Occu.: Household, R/o.10, Building No.67, Gendalal Mill, Sureshdada Nagar, Jalgaon, Tq. and Dist. Jalgaon. .. Respondent … Mr. Swapnil S. Patil, Advocate for the appellant. Mr. A. I. Deshmukh, Advocate for the respondent. ... CORAM : ABHAY S. WAGHWASE, J. Reserved on : 11.09.2026 Pronounced on : 22.09.2026 JUDGMENT :- 1. Dissatisfied by the judgment and order of acquittal dated 10.02.2006 passed by the learned Judicial Magistrate First Class, Jalgaon in Regular Criminal Case No.961 of 2003, by which present respondent stood acquitted from charge under Section 138 of the Negotiable Instruments Act [for short “N.I. Act”], original 2026:BHC-AUG:42924 CriApeal-431-2006 -2- complainant has preferred instant appeal. 2. Before learned Trial Court, present appellant set up a case alleging that accused purchased electronic item like T.V. on credit worth Rs.13,990/- and towards repayment of the same, accused issued cheque dated 11.09.2003. Original complainant (deceased) presented the cheque for realization through the bank, but the said cheque was returned dishonoured with remark “funds insufficient”. Legal notice, as required, was dispatched, raising demand of cheque amount, but as accused failed, proceedings under Section 138 of N.I. Act were instituted. . Learned Trial Court appreciated the respective cases of complainant as well as accused and vide judgment and order dated 10.02.2006, acquitted the accused. Hence, instant appeal by the original complainant. 3. Learned Counsel for the appellant would submit that there is no denial of issuance of cheque or signature over it. Therefore, presumption available under Section 119 of the N.I. Act had come into play. Legal liability was not denied or refuted by the accused, nor was there any challenge to the case of the complainant in any manner during the cross-examination. The testimony of the complainant CriApeal-431-2006 -3- remained intact. However, it is pointed out that learned Trial Court acquitted the accused by taking into account a typographical mistake in the date of legal notice. Learned Counsel emphasize that date of demand notice was correctly mentioned in the complaint and affidavit and even date was reflected over bank memo, but such documents are not taken into account by the learned Trial Court. It is further pointed out that the learned Trial Court failed to consider and appreciate the settled position of law. Therefore, he placed reliance on the judgments of the Hon’ble Apex Court as well as this Court in the cases of Anup s/o Niranjan Dodiya Vs. Shailendra s/o Narayanji Vyas, [2021 DGLS (Bom.) 2069] and Pavan Kumar Ralli Vs. Maninder Singh Narula, 2014 DGLS (SC) 663. 4. Per contra, learned Counsel for the respondent would justify the judgment and order of acquittal by submitting that there was variance on the point of date in complainant’s evidence as well as legal notice and being technical offence, it is his submission that learned Trial Court rightly acquitted the accused. 5. Re-appreciated the entire evidence. In short, the case of the complainant, Kamlabai (deceased), was that she was the proprietor of Kamal Distributors, an agency engaged in the sale of electronic items. It was the case of the complainant that the accused had purchased a CriApeal-431-2006 -4- television on credit and, towards repayment thereof, had issued a cheque for Rs.13,990/-. However, upon presentation, the said cheque was returned dishonoured. 6. In support of above case, on behalf of original complainant, her legal heir i.e. son tendered affidavit of evidence at Exhibit-16 reiterating the above case. Documents like cheque in question, legal notice and bill Exhibit-37 were also tendered in support of above case. 7. It appears that, despite cross-examining the complainant, the case to the extent of purchasing the T.V. on credit from the complainant’s agency has not been seriously challenged. Nor is there any challenge to the issuance of the cheque or the signature thereon, or to the bill at Exhibit-37. Therefore, the presumptions under Sections 118 and 139 of the N.I. Act do come into play. However, these presumptions have to be sufficiently rebutted by the accused. 8. Defence of accused in Trial Court is of denial of taking T.V. on credit, but specific defence is set up that cheque tendered by way of security for purchase of Flour Mill (Chakki) has been misused. However, accused failed to rebut the presumption by adducing anything concrete on record. The said defence has not been CriApeal-431-2006 -5- probabilized in any manner, as except suggestion, there is nothing. 9. Here, it is noticed, as pointed out by learned Counsel for the respondent, that the bank memo on record is dated 11.09.2003, showing the remark “Funds Insufficient”. However, in the complaint, it is averred that the demand notice was issued on 15.09.2002. Even a copy of the said legal notice is placed on record at Exhibit-21. However, in the affidavit of evidence, the demand for payment of the cheque amount is stated to have been raised by issuing a legal notice dated 15.09.2002. It is expected that, after receipt of the bank memo regarding dishonour of cheque, the demand notice has to be issued within the stipulated period. However, in the present case, there is apparently a difference of almost one year between the dates mentioned in the complaint and demand notice. Indeed, Section 138 of the N.I. Act is a technical offence and, therefore, all the statutory ingredients are required to be fulfilled. Consequently, the case of the complainant fails to attract the provisions of the N.I. Act. 10. Perused the citations relied by learned Counsel for the appellant. In those cases, there was typographical mistake, but here it is not so and, therefore, said ruling does not come to the aid of complainant. CriApeal-431-2006 -6- 11. Therefore, for above reasons, no fault can be found on the part of the learned Trial Court in acquitting the accused. Hence, the following order :- ORDER . Criminal Appeal stands dismissed. [ABHAY S. WAGHWASE, J.] scm