Bombay High Court
Dhanraj Parasmal Chordiya vs Vinod Tulsidas Khera on 17 March, 2026
2026:BHC-NAG:4389
revn.70.2016.Jugment.odt
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL REVISION APPLICATION NO.70 OF 2016
Dhanraj Parasmal Chordiya,
Aged about 52 years,
Occupation : Business and agriculturist,
Prop. Prajyot Jewellers,
Old State Bank of India Road,
At P.O., P.S. and Taluka Wani,
District Yavatmal. ..... APPLICANT
// VERSUS //
1. State of Maharashtra,
Through Police Station Officer, .... Deleted.
Police Station, Wani,
Taluka Wani,
District Yavatmal.
1. Vinod Tulsidas Khera,
Aged about 56 years,
Occupation : Business,
Prop. Tulsidas Odhavji Jewellers,
Gandhi Chowk, Wani,
Talulka Wani, District Yavatmal. .... RESPONDENT
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Mr. A. S. Ponkshe, Advocate h/f Mr. C. M. Samarth, Advocate for
the applicant.
Mr. Abhishek Tripathi, Advocate h/f Mr. Mohd. Akhtar Ansari,
Advocate for the respondent.
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CORAM : URMILA JOSHI-PHALKE, J.
RESERVED ON : 27.02.2026
PRONOUNCED ON : 17.03.2026
JUDGMENT :
1. Heard.
2. Admit.
revn.70.2016.Jugment.odt (2)
3. Heard finally with the consent of the learned Counsel for the parties.
4. The revision application challenges the judgment and order of the learned Ad-hoc Additional Sessions Judge, Kelapur by which he has quashed and set aside the impugned judgment and order of conviction and sentenced of imprisonment and order of payment of compensation passed in Summary Criminal Case No.1170/2007 dated 25.03.2014.
5. The brief facts which are necessary for the disposal of the present revision application are as under:
The applicant as well as the respondent are Jewellers and they entered in to the transaction on 30.09.2005 by which gold ornaments worth of Rs.6,90,560/- were sold by the applicant, who is the original complainant to the respondent who is the accused and bill was drawn. The respondent accused has issued an account payee cheque amounting to Rs.6,90,560/- drawn on The Yavatmal Urban Co-operative Bank Ltd., branch at Wani, in favour of Prajyot Jewellers of which the applicant is Proprietor signed by the accused in the capacity of the Proprietor of Tulsidas Odhavji Jewellers. On 12.04.2007, the applicant presented the said cheque in Yavatmal Urban Co-operative Bank Ltd., Branch at Wani. However, it is dishonoured and returned with an endorsement 'Account Closed'. Therefore, on 11.05.2007 revn.70.2016.Jugment.odt (3) applicant issued notice which was received by the respondent accused on 15.05.2007. After receipt of the notice, as the amount was not paid therefore, present applicant complainant filed a complaint under Section 138 of the Negotiable Instruments Act (for short 'N.I. Act'). The learned Magistrate has taken the cognizance of the said complaint and summon was issued against the respondent. After recording of the plea, by which the respondent denied the contention of the complainant that he has committed an offence punishable under Section 138 of N.I. Act. The complainant has examined himself and also witness Auditor in support of his contention. The learned Magistrate has appreciated the evidence and convicted the present respondent of the offence punishable under Section 138 of N. I. Act and sentenced to suffer simple imprisonment for one month and also directed to pay cheque amount of Rs.6,90,560/- towards the compensation amount. Being aggrieved and dissatisfied with the same, the respondent preferred an Appeal bearing No.9/2014. The said appeal was partly allowed and the case was remanded back to the learned trial Court for fresh trial and for passing proper decision according to law.
6. The said order of remanding back, the matter was further challenged before this Court in Criminal Revision No.39/2015. This Court by order dated 25.08.2015, set aside the impugned revn.70.2016.Jugment.odt (4) judgment and order passed by the learned Ad-hoc Additional Sessions Judge, Kelapur in Criminal Appeal No.9/2014 and directed the learned Ad-hoc Additional Sessions Judge, Kelapur to decide the appeal in accordance with law within a period of six months from the date of receipt of the order. The learned Additional Sessions Judge, Kelapur, in view of the directions of this Court decided the appeal by judgment dated 03.03.2016, by which the criminal appeal was allowed and the conviction, sentence and compensation order passed in Summary Criminal Case No.1170/2007 dated 25.03.2014 passed by the learned Judicial Magistrate First Class, Wani was quashed and set aside and the accused is acquitted.
7. Being aggrieved and dissatisfied with the same, present revision application is preferred by the original complainant applicant.
8. Heard learned counsel for the applicant, who submitted that undisputedly there was a transaction between the present applicant and the respondent in view of bill dated 30.09.2005. The respondent has purchased the gold ornaments worth of Rs.6,90,560/- and the bill was wrong to that effect. Against the said transaction, the respondent accused issued an account payee cheque amounting to Rs.6,90,560/- drawn on Yavatmal Urban Co-operative Bank Ltd., Branch at Wani, in favour of revn.70.2016.Jugment.odt (5) Prajyot Jewellers, of which the applicant is Proprietor signed by the accused in the capacity of the Proprietor of Tulsidas Odhavji Jewellers. The said cheque was presented on 12.04.2007 in The Yavatmal Urban Co-operative Bank Ltd., in the account of the complainant, but the same was dishonoured and returned with an endorsement 'Account Closed'. Therefore, on 11.05.2007, the notice was issued. After receipt of the notice on 15.05.2007, the amount was not paid and thereby the respondent has committed an offence under Section 138 of N.I. Act. He submitted that the cheque was issued against the discharge of legal an enforceable debt, therefore, the presumption under Section 139 in favour of the holder attracts. The respondent has not rebutted the said presumption, in view of that the learned trial Court i.e. the Judicial Magistrate First Class, Wani has rightly convicted the respondent. However, the learned Additional Sessions Judge has not considered this aspect that the presumption is in favour of the present applicant, who is the holder in due course. All the ingredients of the offence are established by the complainant. The presumption is also not rebutted by taking a probable defence, in view of that, the judgment and order passed by the learned Additional Sessions Judge, Kelapur requires interference by allowing the revision and by setting aside the order of the learned Additional Sessions Judge, Kelapur.
revn.70.2016.Jugment.odt (6)
9. Per contra, learned counsel for the respondent Mr. Abhishek Tripathi submitted that the documents on record sufficiently shows that transaction was between the Prajyot Jewellers, Wani and one Tulsidas Khera. Exh.58 which is proved by the complainant shows that the amount of Rs.6,90,560/- was shown due against said Tulsidas Khera. The cheque was issued by the respondent allegedly as Proprietor of Tulsidas Odhavji Jewellers. The complainant has not proved that the respondent is the Proprietor of said Tulsidas Odhavji Jewellers, as no document is filed on record. A bare statement of the complainant that in the capacity of the Proprietor of the said Tulsidas Odhavji Jewellers, the cheque was issued itself is not established. As foundation facts itself are not proved by the complainant, therefore, presumption will not attract. Exh.31/c is the bill which is also in the name of Tulsidas Odhavji Khera. Thus, Exh.58 shows that the amount is due against one Tulsidas Odhavji Khera. The bill is also in the name of M/s. Tulsidas Odhavji Khera and name of the respondent is mentioned as Proprietor. The cheque is also issued as a Proprietor of Tulsidas Odhavji Jewellers. Thus, evidence that there is a legal an enforceable debt due from Tulsidas Odhavji Jewellers is not established. Thus, the complainant has not proved that the respondent was the holder in due course of the said cheque. The learned Additional Sessions Judge, Kelapur has rightly considered revn.70.2016.Jugment.odt (7) the same and rightly held that the complainant failed to prove that legal an enforceable debt was due against M/s. Tulsidas Odhavji Jewellers. In view of that, no interference is called for.
10. Learned counsel for the applicant placed reliance on the decision of Rangappa vs Sri Mohan reported in (2010) 11 SCC 441, whereas the learned counsel for the respondent placed reliance on the decision the decision of Vijay vs Laxman and another reported in (2013) 3 SCC 86, Milind Shripad Chandurkar Vs. Kalim M. Khan and another reported in 2011 (4) Mh.L.J. 96.
11. I have given thoughtful considerations for the submissions made by the learned counsel for the parties. The applicant, who is the original complainant has challenged the judgment and order of acquittal passed by the learned Additional Sessions Judge, Kelapur in this revision. The submissions made by the learned counsel for the revision applicant are to be considered within the scope of revision. The scope of interference by this Court in revisional jurisdiction under Section 397 of Code of Criminal Procedure Code, is limited. In its revisional jurisdiction, this Court is not expected to sit as a court of appeal and reappreciate the evidence. However, when the finding of the Courts below, appear to have been recorded, on the basis no evidence, or evidence which even if believed in revn.70.2016.Jugment.odt (8) entirety cannot prove the guilt of the accused for the offences charged, this Court would be justified in exercising its jurisdiction under Section 397 of the Code of Criminal Procedure. The complainant has come with a case that against the bill No.18 dated 30.09.2005 against the purchase of gold ornaments. The respondent issued a cheque of Rs.6,90,560/-. Thus, the cheque was issued against the legal an enforceable debt. Thus, he came with a case that the cheque was issued against the unpaid amount of bill dated 30.09.2005 bearing No.412606 dated 16.10.2006 for Rs.6,90,560/-. The evidence of the complainant further shows that the said cheque was issued by the respondent as Proprietor of Tulsidas Odhavji Jewellers. The said cheque was presented by him in his bank account, but it remained unpaid and returned with an endorsement 'Account Closed'. Therefore, the requisite compliance that is the notice was issued, which was issued by the respondent. After receipt of the notice also, the amount was not paid, and therefore, the complaint was filed.
12. In support of the contention, the complainant entered into the witness box. His evidence shows that he has maintained the account of his business and shown the outstanding cheque amount in ledger book maintained by him. However, he has not produced the ledger before the learned trial Court. His evidence further shows that he is income tax payer and he has not shown revn.70.2016.Jugment.odt (9) the transaction impugned with the accused, in his income tax returns for the relevant year, but he has not produced the said income tax returns in this case. He further admits that there has been no transaction between him and the accused since 26.11.2005. He further states that the transaction with the accused was dated 30.09.2005. His evidence further shows that in Exh.58 there is no entry showing any outstanding amount against the person named Vinod. In the document there is no entry to the effect that the amount is outstanding against M/s. Tulsidas Odhavji Jewelles. He stated that the respondent is the Proprietor of the said firm and therefore, the name of Vinod Khera is appearing in the document. His evidence further shows that he used to get the signature over the bill of the said customer if his bill amount exceeds the amount of Rs.20,000/- and he used to pay value added tax. He further states that the entry showing the payment of V.A.T. is not appearing in Exh.58. He further shows that document Exh.58 does not bear any signature being assessee. He has also not find any document on record to show that he is the Proprietor of Prajyot Jewellers on record. He further states that transaction sale and purchase as shown in the document Exh.58 in that respect all the original documents pertaining to sell are with him and he has brought those documents with him before the Court. But he do not feel revn.70.2016.Jugment.odt (10) it necessary to file those documents on record, therefore, he has not filed the same.
13. In support of his contention, he also placed reliance on the evidence of witness Nilesh B. Lathiya, who is his Chartered Accountant. The evidence of this witness Nilesh Lathiya shows that he has examined the balance sheet, profit and loss account for the year ending on 31 st March 2006. He also states that he has prepared the balance sheet of the said assessee i.e. the complainant on 31.03.2006 including the profit and loss account of the year. His cross-examination shows that he has no personal knowledge of transaction covered in Exh.58. The accounts are maintained by the clients themselves, he just audited the accounts and certified about its correctness.
14. Thus, on perusal of the entire evidence it reveals that the document in respect of income tax returns have not been presented on record at the time of the evidence by the present applicant. Though he admits that he maintained the account books of his business and the transaction with the respondent have been shown in those accounts books. The evidence further shows that the outstanding amount has been shown in respect of the respondent in the ledger, but those account books and ledger have not been presented on record at the time of the evidence of the present applicant. The transaction between the present revn.70.2016.Jugment.odt (11) applicant and the respondent was dated 30.09.2005. Exh.58 is the relevant document which is the balance sheet. The title of the document shows that M/s. Prajyot Jewellers, Wani scheduled forming the part of the balance sheet as on 31.03.2006. The amount of Rs.6,90,560/- was shown against one Tulsidas Khera as per the said document, which is at Exh.58. Thus, amount of Rs.6,90,560/- was shown against one Tulsidas Khera. There is no reference in the said balance sheet regarding the amount due from Tulsidas Odhavji Jewellers. There is no counter signature on the document Exh.58 where handwriting contents are mentioned. In Exh. 58, there is no entry showing any outstanding against the person namely Vinod, either in personal capacity or as a Proprietor of Tulsidas Odhavji Jewellers. The applicant has admitted in his cross-examination that there is no outstanding against Vinod Tulsidas Khera as a Proprietor of M/s. Tulsidas Odhavji Jewellers, therefore entry to that effect is not appearing in the document Exh.58. The entry showing payment of value added tax is also not appearing in Exh.58. Exh.58 is also not bear the signature of the complainant. At the time of the evidence, the complainant has not presented on record any document showing that he is the Proprietor of Prajyot Jewellers. Thus, from this evidence it is clear that the applicant has not placed on record any document to show that being he is the revn.70.2016.Jugment.odt (12) Proprietor of Prajyot Jewellers. He is the holder in due course of the said cheque.
15. Section 8 of the N.I. Act, defines the expression 'holder' as:
8. "Holder". - The "holder" of a promissory note, bill of exchange or cheque means any person entitled in his own name to the possession thereof and to receive or recover the amount due thereon from the parties thereto. Where the note, bill or cheque is lost or destroyed, its holder is the person so entitled at the time of such loss or destruction."
16. As per Section 9, a 'holder in due course' is a person who for consideration has become a possessor of the instrument if payable to a bearer of if payable to the order to the person mentioned i.e. the payee, or becomes the indorsee thereof. Holder in due course means the original holder or a transferee in good faith, who has acquired possession of the negotiable instrument for consideration without having for sufficient cause to believe that there was any defect in the title of the person from whom he has derived the title. Negotiation in case of transfer should be before the amount mentioned in the negotiable instrument becomes payable. Clause (g) to Section 118 of N.I.Act states that unless contrary is proved the 'holder' of a negotiable instrument is presumed to be a 'holder in due course'. But the proviso qualifies the presumption, where the revn.70.2016.Jugment.odt (13) instrument has been obtained from its lawful owner or a person in lawful custody thereof by means of an offence or fraud or has been obtained from the maker or acceptor thereof by means of an offence or fraud or by an unlawful consideration. In such cases the burden of proving that the 'holder' is a 'holder in due course' lies on the person claiming to be so. Thus, as far as the present applicant is holder in due course as a Proprietor of the Prajyot Jewellers itself is not established by him.
17. Learned counsel for the applicant placed reliance on the decision of Rangappa vs Sri Mohan referred supra wherein it is held by the Hon'ble Apex Court that presumption mandated by Section 139 includes a presumption that there exists a legally enforceable debt or liability. However, such presumption is rebuttal in nature. It is further observed that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat v. Dattatraya G. Hegde, [(2008) 4 SCC 54,] may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a revn.70.2016.Jugment.odt (14) legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. It is further observed that Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant- accused cannot be expected to discharge an unduly high standard or proof.
18. As far as the present case is concerned from the cross-examination of the applicant the accused has brought on record that the entry in Exh.58 is not in the name of Tulsidas Odhavji Jewellers. There is no mentioned that the respondent is the Proprietor of the said M/s. Tulsidas Odhavji Jewellers. There revn.70.2016.Jugment.odt (15) is no mentioned and the evidence shows that there is no outstanding against Vinod Tulsidas Khera as a Proprietor of M/s. Tulsidas Odhavji Jewellers. The entry is not there on Exh.58 as to the value added tax. It further came in the evidence that the Exh.58 does not bear the signature of the present applicant. Thus, on the basis of the cross-examination, the respondent has rebutted the presumption.
19. Learned counsel for the respondent also placed reliance on the decision of Vijay vs Laxman & Anr. (Supra), wherein the Hon'ble Apex Court held that the presumption under Section 118(a) and 139 of the Act are rebuttable and the standard of proof required for such rebuttal is preponderance of probabilities and not proof beyond reasonable doubt. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies.
20. On going through the entire evidence on record, admittedly, it is not reappreciated, but considering the same the only issue involved herein is whether the applicant owns the said firm and whether he is the Proprietor of the said Prajyot Jewellers. The Appellate Court held that there is no evidence revn.70.2016.Jugment.odt (16) adduced by the present applicant to show that it is the sole proprietor concerned and he is the sole Proprietor of the said firm. The Appellate Court further held that the applicant has admitted during his cross-examination that he has not produced any document on record to show that he is the Proprietor of the said Prajyot Jewellers. It is specifically stated by the applicant that there is no necessity to produce the said document on record. Thus, it is evident that the firm namely Prajyot Jewellers has been paying and that the applicant who has not proved that he is the Proprietor of the said firm. He cannot claim to be the payee of the cheque nor can he be holder in due course, unless he establishes that the cheques had been issued to him or in his favour or that he is the sole Proprietor of the concerned and being so, he could also be paying himself and thus entitled to make the complaint. The applicant miserably failed to prove any nexus or connection by adducing any evidence whatsoever with namely the Prajyot Jewellers. Mere statement in the affidavit in this regard is not sufficient to meet the requirements of law. The applicant failed to produce any documentary evidence to connect himself with the said firm. In addition to that, the evidence further shows that Exh.58 shows that the amount is due against one Tulsidas Khera to the tune of Rs.6,90,560/- which is the amount mentioned in the cheque. Admittedly, the said cheque was not issued by any Tulsidas Khera. Exh.58 nowhere shows revn.70.2016.Jugment.odt (17) that the amount is due from Tulsidas Odhavji Jewellers or from Vinod Khera. The bill is showing the name of Tulsidas Odhavji Khera dated 30.09.2005 and name of Vinod Khera is also mentioned in that, but it is without adding the value added tax. The impugned cheque which is at Exh.32 is issued in the name of Prajyot Jewellers. Thus, in view of the judgment of the Hon'ble Apex Court in the case of Milind Shripad Chandurkar (supra), to claim that he is the holder in due course. The applicant has to prove that he is the sole Proprietor of the concerned and he is the holder in due course and entitled to make the complaint. The Appellate Court has rightly considered the same and rightly allowed the appeal.
21. Thus, it is manifest that except the bald assertion made by the complainant in the complaint and reiterated on oath in his deposition that he is the sole Proprietor of M/s. Prajyot Jewellers, there is no other cogent, reliable and trustworthy documentary evidence to prove nexus or connection of the complainant with the said firm. The evidence laid by the complainant is wholly deficient in content to prove his nexus or connection with the firm. As its sole Proprietor and the mere averments in the complaint to this effect as reiterated in his deposition is not sufficient to establish such nexus or connection as has been held revn.70.2016.Jugment.odt (18) by the Hon'ble Apex Court in the case of Milind Shripad Chandurkar referred supra.
22. In view of that, the revision petition being devoid of merits, and liable to be dismissed. Hence, revision application is dismissed.
(URMILA JOSHI-PHALKE, J.) Sarkate.
Signed by: Mr. A.R. Sarkate Designation: PA To Honourable Judge Date: 17/03/2026 14:49:41