CRIMINAL APPEAL NO. 47 OF 2026…Jaswant v. Naresh

Judgment29-Cr.APPEAL-47-20261IN THE HIGH COURT OF JUDICATURE AT BOMBAY :NAGPUR BENCH : NAGPUR.CRIMINAL APPEAL NO. 47 OF 2026…Jaswant S/o Tejraj Gorghate (Complainant),Age 63 yrs, Occu. Business,R/o. 1st Floor, Plot No.161-A, Vivekanant Nagar,Wardha Road, Nagpur – 440 015,Tah. & Distt. Nagpur. ... APPELLANT- - V E R S U S - -Naresh S/o Lahuji Charde, (Accused),Age 45 yrs, Occu. Advertiser,R/o M/s Shubh Ad’s, Block No.13, Paul Complex, Ajni Square, Nagpur – 440 015, Tah. & Distt. Nagpur. ... RESPONDENT-------------------------------------------------------------------------------------Mr. Jaswand Tejraj Gorghate, Appellant in Person.Mr. Prafulla W. Jasutkar, Advocate for the Respondent.------------------------------------------------------------------------------------ CORAM : M.M. NERLIKAR, J. DATED : APRIL 18, 2026.PIYUSH MAHAJAN Judgment29-Cr.APPEAL-47-20262-----------------------------------------------------------------------------O R A L J U D G M E N T -----------------------------------------------------------------------------Heard finally by consent at the stage of admission.2. The present appeal under Section 372 of the Code ofCriminal Procedure, 1973, (Cr.P.C.), is filed by thecomplainant, namely, Jaswand Gorghate. He has argued inperson. This Court asked him whether he requires acounsel/Advocate from legal Aid Panel, he refused the same.He argued that the Advocates on legal Aid Panel don’t havebasic knowledge. This Court cautioned him not to make suchcomment / allegations against Advocates on Legal Aid Panel.Therefore, I proceeded to hear him personally.3. The appellant has challenged the judgment andorder dated 22/09/2025, passed by the 11th Joint JudicialPIYUSH MAHAJAN Judgment29-Cr.APPEAL-47-20263Magistrate First Class, (Court No.8), Nagpur, wherein, therespondent/accused – Naresh Lahuji Charde, was acquitted forthe offence punishable under Section 138 of the NegotiableInstruments Act, 1881 (for short “N.I. Act”).4. The party-in-person has vehemently submitted thatthe trial Court has miserable failed to take into considerationthe relevant record placed before it. He further submits that thetrial Court has intentionally recorded the evidence of theappellant falsely in collusion with the Advocate of accused. Thelease deed was entered between the appellant and the accused– Naresh on 01/12/2018, which states that, the propertyowned by the appellant has been given on rent for the purposeof advertising hoarding. It was submitted by the appellant thatthough the lease agreement was entered, and thereafter, thehoarding was installed by the respondent/accused, however,rent was not paid, and therefore, according to party-in-person,the accused-Naresh had given him a cheque of Rs.50,000/- onPIYUSH MAHAJAN Judgment29-Cr.APPEAL-47-2026423/02/2019 for the payment of rent. The said cheque wassubmitted to the bank for encashment, however, it wasreturned with an endorsement “Payment stopped by drawer.”Accordingly a notice was issued to the respondent by RegisteredPost with Acknowledgement Due (RPAD). However, even afterreceipt of the notice, respondent failed to repay the amount,and therefore, appellant filed the complaint before the learnedMagistrate. He further submits that he had also made anapplication to the Senior Police Inspector (Officer Incharge),Nagpur, for the alleged fraud. He further contended that so faras the evidence led before the trial Court is concerned, it is notrecorded as per his version, and that the trial Court has alsoplayed fraud on him in collusion with Advocate for respondent.He lastly submitted that, he has proved the case beyondreasonable doubt, and therefore, the respondent herein beconvicted under Section 138 of the N.I. Act.5. On the other hand, the learned counsel appearingPIYUSH MAHAJAN Judgment29-Cr.APPEAL-47-20265for the respondent vehemently opposes the appeal and submitsthat the complaint filed before the Judicial Magistrate itself isnot tenable in view of the fact that the prayers made in theappeal are altogether different. He has invited my attention tothe appeal memo and submitted that, the appellant has madewild allegations against the Court as well as the counselappearing for the accused. Amongst other prayers made in thepresent appeal is a prayer to pass an order against the learnedcounsel for the accused because he has committed professionalmisconduct in the trial Court. He further submitted that, theappellant has miserably failed to prove his case beyondreasonable doubt. When the complaint before the trial Courtitself was not maintainable, the Court ought to have rejected itat the threshold, however, considering the fact that appellantappeared in person, the Court has entertained and treated thecomplaint under Section 138 of the N.I. Act. The appellant hasmiserably failed to bring on record the notice which has beenserved on the accused / respondent. He further submitted thatPIYUSH MAHAJAN Judgment29-Cr.APPEAL-47-20266the cheque was issued by Shubh AD’S, however, said ShubhAD’S was not made party to the proceedings. Though theappellant has admitted in his cross-examination that, there aretwo signatures appearing in the cheque, out of which onesignature is of Pankaj Ingale, he has not been made party in theproceedings before the trial Court. He submits that appellanthas also admitted that he has not placed on record theacknowledgment in respect of service of notice, and therefore,the basic criteria for institution of complaint under Section 138of the N.I. Act is not fulfilled. Even if it is presumed that thelease-deed agreement was executed, however, according to thelearned counsel, the appellant has miserably failed to bring onrecord that it was acted upon, for the reason that, he hasspecifically admitted in the cross-examination that the hoardingis not installed on the spot. Learned Counsel further submittedthat the cheque was not issued in discharge of any legallyenforceable debt which is a necessary ingredient under Section138 of the N.I. Act. Lastly it was submitted that thePIYUSH MAHAJAN Judgment29-Cr.APPEAL-47-20267presumption under Section 138 of the N.I. Act has beenrebutted by the respondent which is evident from the cross-examination of the appellant, and therefore, according to him,the trial Court has considered each and every aspect andthereafter acquitted the accused holding that the appellant hasmiserably failed to prove his case beyond reasonable doubt, andtherefore, the respondent was acquitted by the trial Court.6. It is necessary to mention at this juncture that thecomplaint was filed by the appellant titled as under:-“COMPLAINT FILED FOR THE OFFENCES OF FRAUD,CRIMINAL BREACH OF TRUST, CHEATING U/S-138NEGOTIABLE INSTRUMENT (AMENDMENT) ACT 1881, 2018r/w section 142.”7. In the complaint, the complainant/appellant hasmade the following prayers:-“ This Hon'ble Court be pleased and pass order infavour of your deeply aggrieved Landlord Complainant's Rights:PIYUSH MAHAJAN Judgment29-Cr.APPEAL-47-202681) to pay an amount Rs.1,38,000/- to yourcomplainant by issuing written order to the Accuseabovenamed within one day in the interest of justice byprotecting your Complainant's rights u/s 141 of its liability.2) to compensate the financial loss, injury and damagecaused to the said property that has to be forced to suffermental agony, anxiety, court expenses etc. of Rs.50,000/- toyou complainant in the interest of rule of law.3) to punish under IPC against Accuse abovenamedfor the commission of offences of fraud, breach of trust,cheating etc.”8. I have considered the rival submissions. So far as themerits of the case is concerned, I have gone through the entirerecord including the complaint, evidence, and the documentsplaced before me. To decide the case, following issues arenecessary to be proved:-(i) Whether Statutory Notice was issued by theappellant as required under Section 138 of the N.I. Act;(ii) Whether complainant/appellant proved thatthe cheque was issued by the respondent/accused fordischarge of legally Enforceable Debt and;PIYUSH MAHAJAN Judgment29-Cr.APPEAL-47-20269(iii) Whether the complaint is maintainable fornot arraying another partner, namely, Pankaj Ingale, asaccused. (i) STATUTORY NOTICE :-So far as the notice part is concerned, appellantadmits that no notice was sent to Shubh AD’S or to PankajIngale. It appears from the record that, notice at Exh.26demanding amount was issued by one K.A. Peter. Even this factwas admitted in cross-examination by the complainant thatExh.26 bears the name of K.A. Peter as sender of the saidnotice. It is further to be noted that there is no evidence onrecord to show that the said notice though issued by K.A. Peterwas received by the respondent, in fact, nothing was placed onrecord by the appellant to substantiate this contention. It is alsonot clear from record as to who is K.A. Peter and why K.A.Peter’s acknowledgment is placed on record. Nothing wasbrought on record to prove that on behalf of appellant, K.A.PIYUSH MAHAJAN Judgment29-Cr.APPEAL-47-202610Peter has issued legal notice to the respondent. Under suchcircumstances, I hold that the basic ingredients for invokingSection 138 of the N.I. Act is lacking. ii) ENFORCEABLE DEBT:- After perusal of the evidence on record, the appellanthas produced on record the documentary evidence such asExh.23 is lease-deed agreement between the parties, Exh.24 isthe legal notice, Exh.27 is the Postal Tracking report andExh.28 is the complaint to the Police. In support of thedocumentary evidence, the appellant has led his evidence. Itappears from the examination-in-chief that, the appellant hasnot proved the documents such as stamp paper, postal receiptand acknowledgment, however, only for the purpose ofidentification, the Court has given them exhibit numbers.Therefore, the main question that is to be considered is,whether the cheque was issued for a legally enforceable debt ornot.PIYUSH MAHAJAN Judgment29-Cr.APPEAL-47-202611 After going through the averments as well asevidence placed before me, it appears from Exh.25 that the saidcheque was issued by Shubh AD’S, there are two signatureappearing on the said cheque. The cheque amount is ofRs.50,000/-. It further appears that, when the cheque waspresented, the said cheque was not encashed but was returnedwith the endorsement “Payment stopped by drawer.” It isnecessary to mention at this juncture that, during the evidence,it was specifically admitted by the appellant that the cheque atExh.25 is not of the personal bank account of the accused. Headmits that it is not known whether Exh.25 is belonging to theaccount of the accused. It was suggested that the chequebelongs to Shubh AD’S and the cheque was never given by theaccused. It was further suggested that the cheque does not bearthe signature of the respondent. The appellant has denied allthese suggestions, however, he admits that, there are twosignatures on the cheque at Exh.25. He further admits that, sofar as right side signature is concerned, i.e., is of one PankajPIYUSH MAHAJAN Judgment29-Cr.APPEAL-47-202612Ingale, however, he denied, that he has forged the othersignature on the left side. Under such circumstances, the main ingredient iswhether the cheque is handed over by the respondent forlegally enforcement debt or not. In his cross-examination, hehas specifically admitted that he has not placed anything onrecord that the said land belongs to him. No proof has beenplaced on record except Exh.23 which is a lease-deed. Hefurther admits that the lease-deed agreement was enteredbetween the appellant and Shubh AD’S which is correct as canbe seen from the perusal of the lease-deed. It further appearsthat the respondent was shown as a witness in the said lease-deed, under such circumstances, it cannot be said that one ofthe signature appearing on the cheque is of the respondent.When the appellant has miserably failed to prove that secondsignature was of the respondent, it is very difficult to say thatthe cheque was issued by the respondent himself in his personalcapacity for a legally enforceable debt.PIYUSH MAHAJAN Judgment29-Cr.APPEAL-47-202613It is further admitted by the appellant that during theperiod, i.e., December, 2018 to February, 2019, there was noinstallation of any hoarding on the said land, meaning thereby,it appears that, the lease-deed was not acted upon. Under suchcircumstances, it cannot be said that, the cheque was issued fora legally enforceable deed.(iii) NON JOINDER OF NECESSARY PARTY:- Appellant admits that he has not made said PankajIngale as party respondent in the present proceedings.Considering the assumptions by the appellant, that he was notaware of the fact whether the cheque is issued from thepersonal account of the respondent or not, under suchcircumstances, he has presented the said cheque to FederalBank, wherein the account of Shubh AD’S is there. However, itappears from the record that the said cheque was returned withthe endorsement “Payment stopped by drawer.” It is pertinentto note that the said Pankaj Ingale is not made party respondentPIYUSH MAHAJAN Judgment29-Cr.APPEAL-47-202614though he is a signatory to the cheque. It further appears that there are two signatures on thecheque, presuming for a moment that, one signature is of thepresent respondent, however, when there is another signature,it was incumbent on the part of the complainant / appellant tomake Pankaj Ingale as party respondent, however, it appearsfrom the record that, the complainant / appellant hasunilaterally tried to prosecute the respondent herein, therefore,the complaint is bad in law for non-joinder of necessary party.It is further to be noted that it appears from the examination-in-chief of the complainant/ appellant that he has presented thecheque in the account of respondent herein. 9. After considering the entire cross-examination of thecomplainant / appellant, it is crystal clear that, the ingredientsof Section 138 of the Negotiable Instruments Act, are notfulfilled and the respondent has successfully rebutted thepresumption provided under Sections 118 and 139 of the N.I.PIYUSH MAHAJAN Judgment29-Cr.APPEAL-47-202615Act. It is further to be noted that, after going through the entirejudgment of the trial Court, I do not find any perversity, theCourt has considered the entire material.CONDUCT OF THE APPELLANT:-10. At the outset, it is necessary to mention at thisjuncture that, during the hearing of more than one hour of theappeal, the appellant before this Court has made a boldstatement that the evidence was not recorded by the concernedJudge as per his version. He has repeated for several times thesame despite of cautioning him. It is necessary to mention atthis juncture that, the Judges has nothing to do with, they aredoing their work to the best of their abilities, and therefore,making such bold statement derogates the majesty of law, thispractice of making bold allegations against the Judges needs tobe deprecated. Further such statement is made, without anyproof thereof.PIYUSH MAHAJAN Judgment29-Cr.APPEAL-47-20261611.The appellant has alleged that his evidence has notbeen recorded as per his narration, and therefore, he has madeallegations against the learned Magistrate. Not only that, itappears in the present appeal memo in Paragraph No.7 at Page7, he has made the following allegations:“7) Despite, complainant had filed Notes of writtenargument vide Annx.I and pursis Annx.J on record, theaccused's counsel has mislead, misinformed and falselyinterpreted the primary evidences of complainant by dictatinghimself to the Ld.magistrate and falsely recorded the crossexamination of complainant wilfully in trial court duringpleading, as the complainant appeared in person.”12. It is further to be noted that the appellant again hasargued the matter saying that the basic facts and grounds havenot been considered by the trial Court, and therefore, theappeal is to be allowed. This is nothing but an abuse of processof law. The appellant has taken undue advantage of the factthat he was allowed to appear in person. Further, the practiceof making allegations is required to be dealt with sternly andPIYUSH MAHAJAN Judgment29-Cr.APPEAL-47-202617needs to be deprecated. Under such circumstances, in theabsence of any proof thereof, the appellant has made wildallegations, and therefore, I am constrained to impose cost ofRs.50,000/- on the appellant. Hence the following order :-O R D E R(i) The appeal is dismissed with costs ofRs.50,000/-;(ii) The cost shall be deposited by appellantwithin three months from the date of passing of thisorder in Union Bank of India, Branch – High Court,Civil Lines, Nagpur, in Public Welfare AccountNo.129712010001014, IFSC Code – UBIN0812978;(iii) In case, the appellant fails to deposit saidamount of cost within stipulated period, the samebe recovered from the appellant as land revenuearrears and after recovery same be deposited in theUnion Bank of India, Branch – High Court, CivilPIYUSH MAHAJAN Judgment29-Cr.APPEAL-47-202618Lines, Nagpur, in Public Welfare AccountNo.129712010001014, IFSC Code – UBIN0812978. [ M. M. NERLIKAR, J ]PIYUSH MAHAJAN