Manoj Manoharrao Mahajan Vs Sandesh Sunul Shinde

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2025:BHC-NAG:1391

Judgment

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356 revn1.22

IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR.

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CRIMINAL REVISION APPLICATION NO.1 OF 2022

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Manoj Manoharrao Mahajan,
age: 48 years, major, occupation: business,
r/o : plot No.35, 5th Layout,
Dharampeth Society, Jaiprakash
Nagar, Nagpur. ….. Applicant.

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:: V E R S U S ::

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Sandesh Sunil Shinde,
age: major, occupation: business,
r/o 48, Gawande, Layout,
Ring Road, Khamla Square,
.
Nagpur. ….. Non-applicant

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==============================
Shri R.D.Hajare, Counsel for the Applicant.
Shri R.S.Nagpure, Counsel for the Non-applicant.

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==============================

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CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 20/01/2025
PRONOUNCED ON : 12/02/2025

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JUDGMENT

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1. By preferring this revision, the applicant

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(complainant) has challenged the judgment and order

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of acquittal passed by learned Additional Sessions
Judge-8, Nagpur dated 10.3.2021 in Criminal Appeal
No.116 of 2016.

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2. As per the case of the complainant, he had
advanced hand loan of Rs.4,15,000/- with interest at
the rate of 18% per annum in March - April 2002. The
non-applicant (accused) has agreed to repay the same
with interest at the rate of 18% per annum. Thereafter,
the accused expressed his inability and requested the
complainant to reduce the liability of interest to the
tune of Rs.25000/-. The complainant has accepted his
request and the accused has paid amount Rs.25000/- to
the complainant on 27.7.2002. The accused has issued
cheque of Rs.4,15,000/- bearing No.227077 dated
23.10.2003 drawn on the Bank of Baroda, Nagpur. The
complainant presented the said cheque for realization
and the said cheque was returned “unpaid” with an

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endorsement “insufficient funds”. The complainant has
issued a statutory notice to the accused on 24.11.2003.
The accused failed to pay the cheque amount despite of
service of notice. As the cheque was issued, as per the
contention of the complainant, against legal and
enforceable debt which was dishonoured and on
issuance of notice also the accused has not repaid the
amount, the complainant was constrained to file the
complaint.

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3. The defence of the accused was of total denial

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and it was contended that there was no money
transaction between him and the complainant. The
complainant was working with him as Supervisor and
he has given blank cheque to the complainant for site
work and maintenance of machine. The same was
misused by the complainant. He never issued letter
Exh.37 to the complainant.

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4. In support of the complainant’s case, the

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complainant has examined himself vide Exh.32, CW2
Bank Officer Ajit Lonare vide Exh.69, and relied upon
letter Exh.37, envelope Exh.38, cheque Exh.39, memo
Exh.40, notice Exh.41, postal receipt Exh.42, and
acknowledgment Exh.43.

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5. After appreciation of the evidence, learned 16th
JMFC, Nagpur held the accused guilty and convicted
him for the offence under Section 138 of the Negotiable
Instruments Act and sentenced to suffer simple
imprisonment, till rising the court. The accused was
directed to pay compensation of Rs.6.00 lacs to the
complainant under Section 357 of the Code of Criminal
Procedure.

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6. Being aggrieved and dissatisfied with the same, the accused preferred an appeal bearing Criminal

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Appeal No.116 of 2016 before learned Additional
Sessions, Nagpur. Learned Additional Sessions Judge,
after appreciating the evidence, held that the
complainant has failed to prove the foundational facts
that he has given the hand loan to the accused. The
evidence of the complainant falls short to show that he
was having sufficient means to give the amount of
Rs.4,15,000/- as hand loan to the accused. As the
complainant has not proved the foundational facts,
presumption under 139 of the Negotiable Instruments
Act is not attracted and, therefore, failed to prove the
offence under section 138 of the said Act.

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7. Heard learned counsel Shri R.D.Hajare for the
complainant and learned counsel Shri R.S.Nagpure for
the accused. Perused the entire evidence on record.
Learned counsel appearing for respective parties have
taken me through the entire evidence on record.

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8. On appreciation of the evidence, it reveals that

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the complainant came with a case that he has handed
over the loan of Rs.4,15,000/- to the accused at the rate
of 18% per annum. On the request of the accused, he
reduced the amount of Rs.25,000/- towards the interest.
The accused has issued cheque to him against the legal
and enforceable debt bearing No.227077 dated
23.10.2003 drawn on the Bank of Baroda, Nagpur of
Rs.4,15,000/-. The said cheque is at Exh.39, the cheque
return memo is at Exh.40, office copy of the notice is at
Exh.41 and postal receipt is Exh.42 and postal
acknowledgment is at Exh.43.

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9. The cross examination of the complainant shows

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that the amount of Rs.4,15,000/- was paid by him in
March - April 2002. He has bifurcated the amount by
stating that once he has given Rs.1,65,000/- and on
second occasion he has given Rs.2,10,000/- and rest of

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the amount has been given in 2 or 3 installment. He
admitted that he was working as pigmy agent and his
monthly income was Rs.15000/-. The amount of his
income was used to remain balance in his bank account.
He has paid the amount of Rs.1,65,000/- by
withdrawing from the said bank. Amount Rs.2,10,000/-
is also paid by him by withdrawing the same. He has
not obtained any receipts or documents from the
accused that he paid the amount to him. His further
cross examination shows that the accused has sent him
cheque Exh.39 by post. He is unable to identify the
handwriting of the accused. He denied the contention
that the accused used to give him blank cheques and
blank letter head to use it at the site. He also denied
that he has misused the cheque. The cheque was
referred to the handwriting expert. The opinion of the
handwriting expert is at Exh.111, which shows that

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Judgment

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handwriting expert has shown his inability to express
definite opinion as to the red encircled writing and
figures marked at Exhs.Q-1 to Q-3 with the writings and
figures marked at Exhs.S-1 to S-3.

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10. CW2 Bank Officer Ajit Lonare, is examined only
to prove the memorandum.

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11. It is true that the complainant can rely the

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presumption incorporated by the Negotiable
Instruments Act. However, before attracting the
presumption, the complainant has to prove the
foundational fact.

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12. The appellate court appreciated the evidence
adduced by the complainant and observed that bare
perusal of the cheque reveals that signature on the
cheque was in black ink, wheres rest of the contents are
in blue ink and the date mentioned is by different pen

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and rest of the contents i.e. name of the complainant

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and amount are by different ink, which are sufficient to
show that the contents of the cheque Exh.39 were not
scribed or written at the same time. The evidence on
record further shows that during cross examination, the
complainant admitted that he has withdrawn the
amount from his bank and paid the same to the
accused. Despite this specific defence by the accused of
misusing a blank signed cheque and there was no legal
and enforceable debt, the complainant did not produce

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extract of his bank account to substantiate the
contention that he was having the amount, which is
given as a hand loan to the accused, in his account and
he had withdrawn the same in order to give it to the
accused. The complainant has also shown his inability
to tell the dates when the said amount exactly was given
to the accused. As far as the fact of issuance of cheque

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Judgment

is concerned, considering different ink on the said
cheque, the same creates suspicion. Once accused
admits issuance of such cheque, statutory presumption
under Sections 118-A and 139 of the Negotiable
Instruments Act goes in favour of the complainant and
onus is shifted upon the accused to rebut the initial
presumption. The accused can discharge his burden on
preponderance of probability on the basis of cross
examination. When the alleged cheque is given towards
repayment of loan and the complainant failed to give
details of transaction, the accused denied the loan taken
and the complainant has to show that he has resources
to give such huge amount.

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13. Admittedly the complainant was working as
pigmy agent and drawing salary of Rs.15000/-. The
complainant has not adduced the evidence to show that

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he has any other sources to have such amount in his
account.

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14. The law does not provide that the accused has to
adduce the evidence for rebuttal of the presumption.
The accused can rebut the same on the basis of
preponderance of probability.

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15. Thus, learned Sessions Judge has considered the
specific defence of the accused, difference in ink, no
explanation to issue the cheque by post, no document to
show that such money was available with the
complainant at the relevant time, in the light of the
fact that he was working as pigmy agent, but there was
no source but only his salary. There is no evidence that
he has the amount and he has given the same to the
accused. Considering all these facts, the appellate court
held that foundational facts are not proved by the

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356 revn1.22

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Judgment

complainant and burden of the accused is not to
establish his defence beyond reasonable doubt.

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16. Admittedly, when two views are possible and the
appellate court has taken the possible view, merely
because another view is possible, the judgment of
acquittal cannot be reversed. What is to be seen is,
whether the findings are perverse or not and if the
findings are perverse, certainly the judgment of
acquittal can be interfered with.

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17. Considering the evidence on record, the issue of
giving the hand loan itself is not proved by the
complainant. The complainant has not proved the
foundational facts and, therefore, presumption will not
attract. Therefore, the view taken by the appellate court
is a possible view and no interference is called for in the

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judgment of acquittal rendered by learned Sessions

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Judge. The revision being devoid of merits deserves to

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be dismissed and accordingly it is dismissed.

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Revision stands disposed of.

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( URMILA JOSHI-PHALKE, J. )

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!! BrWankhede !!

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Manoj Manoharrao Mahajan v. Sandesh Sunul Shinde

Case brief

What is this about?

What did the court decide?

Manoj Manoharrao Mahajan v. Sandesh Sunul Shinde

Case brief

What is this about?

What did the court decide?

What the court decided

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