CriAppeal-62-2006 -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.62 OF 2006 . Sharad s/o Hari Patil Age: 49 years, Occu.: Business, C/o. Ramanlal & Company, Navi Peth, Near Janshakti, Jalgaon, Tq. And Dist. Jalgaon. .. Appellant Versus . Santosh s/o Sitaram Pawar Age: 45 years, Occu.: Agri., R/o. At post Varsade Tanda, Tq. Pachora, Dist. Jalgaon. .. Respondent … Mr. Yadnyesh V. Dharmadhikari, Advocate h/f Mr. A. G. Talhar, Advocate for the appellant. Mr. S. D. Nimbalkar, Advocate h/f Mr. D. P. Palodkar, Advocate for the respondent. ... CORAM : ABHAY S. WAGHWASE, J. Reserved on : 08.09.2026 Pronounced on : 21.09.2026 JUDGMENT :- 1. In this appeal, original complainant, who instituted proceedings under Section 138 of the Negotiable Instruments Act [for short “N.I. Act”], challenges the judgment and order passed by the learned Judicial Magistrate First Class, Jalgaon in Summary Criminal Case No. 288 of 2000 dated 08.08.2005, by which present 2026:BHC-AUG:42764 CriAppeal-62-2006 -2- respondent/original accused, stood acquitted from charge under Section 138 N.I. Act. 2. Appellant filed above numbered proceedings on the premise that he is a dealer of tractor, whereas accused was an agriculturist and was desirous of purchasing new tractor, but he had no resources and therefore, inquired regarding availability of finance. According to complainant, he extended financial aid to accused towards down payment for availing finance i.e. to the tune of Rs.45,000/- by way of hand-loan, which accused agreed to repay on or before 31.01.1997, however, he failed to repay and on persuasion, issued cheque dated 01.11.1999 drawn on his bank which was presently for realization, but it was dishonored and returned with remark “not arranged for”. Consequently, as required under law demand notice was dispatched, but accused failed to pay the cheque amount. Hence, the complaint. 3. Learned Counsel for appellant would submit that appellant/complainant has worked in the business of selling tractor and there is no challenge to the same. He would further submit that there is also no challenge or dispute that accused was an agriculturist and was intending to purchase a new tractor. He further first submitted that there is also no denial that accused did not have funds towards own contribution by way of down payment for raising CriAppeal-62-2006 -3- finance and, therefore, complainant on demand had extended hand loan to the tune of Rs.45,000/-. He would submit that towards repayment of hand loan accused had issued cheque. That, the same was dishonoured. He would submit that as required under law, demand notice was dispatched calling upon the accused to pay the cheque amount. That, in spite of receipt of notice, accused failed to pay the cheque amount and, therefore, above complaint was instituted. 4. He would further submit that complainant, apart from adducing his own evidence, has placed on record the very cheque in question, bank memo, reflecting dishonour and its reason as well as placed on record copy of demand notice. According to him, neither issuance of cheque was disputed, nor signature over it. Thus, according to learned Counsel for the appellant, essential ingredients for attracting Section 138 of the N.I. Act were available on record, but learned trial Court failed to consider and appreciate the same and hence, he seeks indulgence at the hands of this Court. 5. Per contra, learned Counsel for respondent/accused would justify the acquittal on the ground that complainant failed to prove that there was legally enforceable debt and that the same was existing on the date of action. CriAppeal-62-2006 -4- 6. On perusal of record, it is emerging that, to substantiate his case, appellant has adduced his evidence at Exhibit-30 and also placed on record copy of cheque Exhibit-33, bank memo Exhibit-34, legal notice Exhibit-35 and postal acknowledgment Exhibit-36. 7. In his evidence at Exhibit-30 complainant has reiterated the contents of the complaint. Cheque in question Exhibit-33 was identified by him to be the instrument issued by accused. In complaint, it is stated that accused issued cheque bearing No.047236 for amount of Rs.20,000/- dated 01.11.1999, however, while testifying before the Court, complainant deposed that accused issued cheque of amount of Rs.25,000/- and he gave cheque number as 047235. Therefore, apparently, contents of complaint are contrary to the testimony in the court firstly on the point of cheque number and secondly on the point of quantum as well as month of issuance of cheque. 8. In cases under Section 138 N.I. Act, there is burden on complainant to prove his case beyond reasonable doubt. Only when foundational facts are proved, presumption available under Sections 118 and 139 of N.I. Act comes into play and unless this is done, there is no corresponding burden on accused to discharge or rebut the said burden. CriAppeal-62-2006 -5- 9. Here, as stated above, evidence of complainant is contrary to his own documents on record. Hence, it cannot be said that the complainant had proved the issuance of cheque towards legally enforceable debt to the tune of Rs.25,000/-. 10. Learned Counsel for appellant would point out that learned Trial Court has also erred in recording the finding that cheque was time barred. According to him, such findings are contrary to the record as well as law. 11. In the backdrop of such submissions, record is put to scrutiny and it is noticed that cheque placed on record worth Rs.25,000/- bearing No.047235 is of 01.10.1999. Accused seems to have taken a specific defence before the trial Court that said transaction is time barred. 12. On going through the record, apparently, it does emerge that theory of complainant about accused securing hand-loan is of October, 1996 and, therefore, action was expected to be initiated within a stipulated period of three years. Here, complainant deposed and got instrument Exhibit-33 by stepping in the witness box. It has come on record that the cheque in question was of October, 1999 and it is also so reflected in the complaint. Thus, if the actual transaction CriAppeal-62-2006 -6- was of October 1996, the cheque ought to have been presented for realization on or before 30.09.1999. However, the cheque is apparently shown to have been issued on 01.10.1999, i.e., after the expiry of the period of three years, and, as such, it is indeed time- barred. No efforts were done by complainant to get necessary corrections done either in the notice or complaint or vice versa. 13. Thus, complainant failed to prove his case before the trial Court, firstly for not proving cheque on record to be towards legally enforceable debt of hand-loan, as there is variance in documentary evidence adduced by him and his testimony before the Court. Secondly, for aforesaid reasons, cheque is also time barred. Hence, no fault can be attributed to the learned trial Court in acquitting accused, as it is fairly settled position that offence under Section 138 of N.I. Act is a technical offence and, therefore, essential requirements are required to be strictly proved, which complainant seems to have been failed to do so. There being no merits in the appeal, it deserves to be dismissed. Hence, the following order is passed :- ORDER . Criminal Appeal is hereby dismissed. [ABHAY S. WAGHWASE, J.] scm