Case Note & Summary
The case involves a criminal revision application filed by Kisan R. Gate, the Power of Attorney holder of Vaishali Sanjay Jaiswal, challenging the acquittal of Prakash Tukaram Kakuhas (the non-applicant/accused) for an offence under Section 138 of the Negotiable Instruments Act, 1881. The background is that Vaishali Jaiswal entered into an agreement to sell a plot with three vendors for Rs. 2,70,00,000 and paid Rs. 20 lacs as advance through the accused, who acted as an intermediary. The balance was to be paid upon completion of legal documents. However, the sale did not materialize, and the vendors issued a cheque of Rs. 20 lacs to Vaishali Jaiswal, which was dishonoured. The complainant alleged that the accused was liable under Section 138 as he had received the amount and was responsible for the transaction. The trial court convicted the accused, but the appellate court acquitted him, holding that the accused was not the drawer of the cheque and that there was no legally enforceable debt between the complainant and the accused. The High Court, in revision, examined whether the acquittal was proper. The court noted that the cheque was issued by the vendors, not the accused, and the complainant failed to prove that the accused was liable to pay the amount. The presumption under Section 139 of the NIA was rebutted by the accused by showing that the cheque was not issued by him. The High Court upheld the acquittal, finding no perversity in the appellate court's decision. The revision was dismissed.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Legally Enforceable Debt - The complainant must prove that the accused is the drawer of the cheque and that there is a legally enforceable debt. In this case, the accused was not the drawer and the cheque was issued by a third party, hence no liability under Section 138. (Paras 1-10)
B) Negotiable Instruments Act - Presumption under Section 139 - Rebuttable Presumption - The presumption under Section 139 of the NIA is rebuttable and the accused can rebut it by showing that the cheque was not issued in discharge of any debt or liability. The appellate court correctly held that the complainant failed to establish the foundational facts. (Paras 5-10)
Issue of Consideration
Whether the acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881 was proper when the complainant failed to prove that the accused was the drawer of the cheque or that there was a legally enforceable debt.
Final Decision
The High Court dismissed the criminal revision application and upheld the acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881.
Law Points
- Presumption under Section 139 NIA is rebuttable
- complainant must prove legally enforceable debt
- accused not drawer of cheque cannot be convicted under Section 138 NIA
Case Details
2025 LawText (BOM) (09) 228
Criminal Revision Application No.81 of 2024
Mrs. Suhasini Deshpande for the Applicant, Shri A.R. Rishi for the Non-applicant
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Nature of Litigation
Criminal revision against acquittal in a cheque dishonour case under Section 138 of the Negotiable Instruments Act, 1881.
Remedy Sought
The applicant (complainant) sought to set aside the appellate court's acquittal and restore the trial court's conviction of the accused under Section 138 NIA.
Filing Reason
The applicant challenged the appellate court's judgment dated 22.12.2023 which acquitted the accused of the offence under Section 138 NIA.
Previous Decisions
Trial court (25th Judicial Magistrate First Class, Special Court for 138 N.I.Act, Nagpur) convicted the accused in Summary Complaint Case No.1171/2010 on 9.1.2018. Appellate court (Additional Sessions Judge, Nagpur) acquitted the accused in Criminal Appeal No.47/2018 on 22.12.2023.
Issues
Whether the appellate court was correct in acquitting the accused under Section 138 of the Negotiable Instruments Act, 1881 when the cheque was not issued by the accused but by third parties.
Whether the complainant proved that there was a legally enforceable debt between the complainant and the accused.
Submissions/Arguments
The applicant argued that the accused had received the advance amount and was liable to pay the same, and the cheque was issued in discharge of that liability.
The non-applicant/accused argued that he was not the drawer of the cheque and there was no legally enforceable debt between him and the complainant.
Ratio Decidendi
For an offence under Section 138 of the Negotiable Instruments Act, 1881, the complainant must prove that the accused is the drawer of the cheque and that there is a legally enforceable debt. The presumption under Section 139 is rebuttable, and the accused can rebut it by showing that the cheque was not issued by him. In this case, the cheque was issued by third-party vendors, not the accused, and the complainant failed to establish any liability of the accused.
Judgment Excerpts
By this revision, the applicant has challenged judgment and order dated 22.12.2023 passed by learned Additional Sessions Judge, Nagpur in Criminal Appeal No.47/2018 whereby judgment and order dated 9.1.2018 passed by learned 25th Judicial Magistrate First Class (Special Court for 138 N.I.Act), Nagpur in Summary Complaint Case No.1171/2010 convicting the non-applicant was set aside and the non-applicant is acquitted of the offence under Section 138 of the Negotiable Instruments Act, 1881 (the NIA).
Procedural History
The trial court convicted the accused on 9.1.2018. The accused appealed to the Additional Sessions Judge, Nagpur, who acquitted him on 22.12.2023. The complainant then filed a criminal revision before the High Court, which was dismissed on 12.09.2025.
Acts & Sections
- Negotiable Instruments Act, 1881: 138, 139
