Final Order 2

Order Details: Copy of Judgment .
Pdf Text: C.C. NO. 5600280/SC/2025 ::1:: JUDGMENT
(Para 44(i) of Chapter VI of Criminal Manual)
MHMM120025
442025 IN THE COURT OF JUDICIAL
MAGISTRATE
FIRST CLASS, 56th COURT,
MAZGAON, MUMBAI
(Presided over by Shri. D. A. Argade)
Date of Judgment 21/08/2026
C.C.No.5600280/SC/2025
Offence punishable under Section 138 of the
Negotiable Instrument Act, 1881.
Complainant Javli Sahakari Patpedhi Maryadit
Address : Room No.101, 1st floor, J.M. Chambers,
316 Narshinatha Street, Masjid(W) Mumbai.
Through its Recovery Officer
Bhagwan Dagadu Bhilare
Age : 48 years. Occupation : Service
Represented
by
Adv. R. K. Saravde
Accused Smt. Amita Ashok Sagvekar
Age : Adult, Occupation : Nil
Address : C-203, Lalbag Raja CHS Ltd., Lalbag
Market, Lalbag, Mumbai
Represented
by
Adv. L. G. Wagh
(Para 44(ii) of Chapter VI of Criminal Manual)
Date of offence 28/11/2024
Date of FIR/Complaint 23/12/2024
Date of Charge sheet ---
Date of Framing of Charge / Plea 25/06/2025
Date of commencement of evidence 23/07/2026
Date on which judgment is reserved ---
-- 1 of 15 --
C.C. NO. 5600280/SC/2025 ::2:: JUDGMENT
Date of the Judgment 21/08/2026
Date of the Sentencing order, if any 21/08/2026
Accused Details
Rank
of
the
Accu
sed
Name
of
Accuse
d
Dat
e of
Arr
est
Date
of
Rele
ase
on
bail
Offenc
e
charge
d with
Wheth
er
acquitt
ed or
convic
ted
Sentence
imposed
Period of
Detention
undergone
during Trial
for purpose
of Section
468
B.N.S.S.
1 Smt.
Amita
Ashok
Sagvek
ar
--- --- U/s.138
of N.I.
Act
Convict
ed
Imprisonm
ent &
compensat
ion
---
Para 44(iii) of Chapter VI of Criminal Manual)
LIST OF PROSECUTION / DEFENCE / COURT
WITNESSES
A. Prosecution:
Rank Name Nature of Evidence
(Eyewitnesses, Police Witnesses, Expert
Witnesses, Medical Witnesses, Panch
witnesses, other witnesses)
1 Bhagwan
Dagadu
Bhilare
Representative of complainant
B. Defence Witnesses, if any:
Rank Name Nature of Evidence
(Eyewitnesses, Police Witnesses, Expert
Witnesses, Medical Witnesses, Panch
-- 2 of 15 --
C.C. NO. 5600280/SC/2025 ::3:: JUDGMENT
witnesses, other witnesses)
--- --- ---
C. Court Witnesses, if any:
Rank Name Nature of Evidence
(Eyewitnesses, Police Witnesses, Expert
Witnesses, Medical Witnesses, Panch witnesses,
other witnesses)
--- --- ---
LIST OF PROSECUTION / DEFENCE/ COURT EXHIBITS
A. Prosecution:
Sr.No. Exhibit No. Description
1 14 Certificate of Registration
2 15 Identity Card
3 16 Board Resolution
4 17 Agreement
5 18 Disputed Cheque
6 19 Cheque Return Memo
7 20 Demand Notice
8 21 Postal Receipt
9 22 Track Report
10 23 Certificate
11 24 Loan Account Statement
B. Defence:
Sr.No. Exhibit
Number
Description
--- --- ---
C. Court Exhibits:
Sr.No. Exhibit
Number
Description
--- --- ---
-- 3 of 15 --
C.C. NO. 5600280/SC/2025 ::4:: JUDGMENT
D. Material Objects:
Sr.No. Material Object
Number
Description
--- --- ---
J U D G M E N T
(Delivered on 21/08/2026)
1. The accused is facing trial for the offence punishable under
Section 138 of the Negotiable Instrument Act, 1881 (in short ‘the
N.I. Act').
2. The case of complainant in nutshell is as under-
The complainant is a Co-operative Credit Society registered
under the Maharashtra Co-operative Societies Act, 1960. The
accused is its member. She availed from it a mortgage loan of
Rs.3,50,000/-. She committed default to repay the same. In order
to pay the same, she issued a cheque bearing No.270111 dated
17/10/2024 of Rs.3,60,000/-. On presentation, the cheque was
dishonoured for the reason “funds insufficient” on 18/10/2024.
On 11/11/2024, it issued the accused a demand notice by
registered post. On 11/11/2024, the notice was served upon her.
She did not comply with the demand. Hence, the complainant
filed the compliant.
3. On presentation of the complaint, process was issued against
the accused for the offence punishable under Section 138 of the
N.I. Act. The particulars of the offence were read over and
explained to her in vernacular. She pleaded not guilty and claimed
-- 4 of 15 --
C.C. NO. 5600280/SC/2025 ::5:: JUDGMENT
to be tried.
4. The accused failed to attend the Court. She avoided to
record her statement vide Section 351 of the Bharatiya Nagarik
Suraksha Sanhita, 2023 (in short ‘the B.N.S.S.’). In view of ratio
laid down by Hon’ble Bombay High Court in the case of Prakash
Chimanlal Sheth V/s. T. Ramalingan Nadar and others reported
in 2022 SCC Online Bom 10161, her statement was dispensed
with.
5. The following points arise for my determination and I
record their findings, with reasons, as under.
SR. NO. POINTS FINDINGS
1) Does the complainant prove that the
cheque bearing No.270111 dated
17/10/2024 of Rs.3,60,000/- was drawn
by the accused for the discharge of any
debt or legally enforceable liability? ….. Yes
2) Does the complainant prove that the
accused dishonoured the above cheque? ….. Yes
3) Does the complainant prove that it made
demand for the above cheque amount by
giving a notice in writing to the accused
within 30 days from the receipt of
information from the bank regarding the
return of cheque unpaid? ….. Yes
4) Does the complainant prove that the
accused failed to make the payment of
the cheque amount within 15 days from
the receipt of the notice? ….. Yes
-- 5 of 15 --
C.C. NO. 5600280/SC/2025 ::6:: JUDGMENT
5) What order? ….. As per
final order
R E A S O N S
6. In order to substantiate the allegations levelled against the
accused, the complainant has examined its authorized
representative Bhagwan Bhilare as its witness No.1 (CW1).
Moreover, it has relied on the registration certificate, resolution,
agreement, cheque, cheque return memo, office copy of demand
notice, receipt of post, postal track report, certificate and
statement of loan.
7. Now it would be apposite to examine some broad and
general submissions made by both parties. The learned advocate
for the complainant has submitted that the accused issued the
cheque towards the repayment of outstanding dues and the said
cheque was returned unpaid by the bank. Per contra, no argument
was advanced on behalf of the accused.
8. In order to verify the authenticity of the argument advanced
by the learned advocate for the complainant and its case, oral and
documentary evidence placed before the Court will have to be
scrutinized. It would be just to scrutinize the evidence while
discussing the points one by one.
AS TO POINT NO. 1 :-
9. In order to appreciate the controversial aspects, a reference
is required to be made to testimony of witness No.1 of the
complainant (CW1) Bhagwan Dagadu Bhilare. He has filed his
-- 6 of 15 --
C.C. NO. 5600280/SC/2025 ::7:: JUDGMENT
examination-in-chief by way of an affidavit. He has deposed in
his evidence affidavit that he is authorized representative of
complainant. He has further deposed in his evidence affidavit that
the accused availed a loan of Rs.3,50,000/- from the complainant.
He has also deposed in his evidence affidavit that in order to
repay the loan dues, the accused issued the complainant the
disputed cheque, but the same was dishonoured for the reason
funds insufficient. Needless to say that his cross-examination was
not conducted by the accused. Hence, his testimony remained
unchallenged.
10. The verified copy of registration certificate is seen to be
referred to in evidence affidavit of CW1 Bhagwan. It shows that
the complainant is a Co-operative Credit Society registered under
the Maharashtra Co-operative Societies Act, 1960. The verified
copy of resolution dated 22/10/2024 at exhibit 16 is seen to be
referred to in evidence affidavit of CW1 Bhagwan. It shows that
the managing committee of the complainant passed a resolution in
its meeting dated 27/10/2024 authorizing him to institute the case
and depose on behalf of the complainant. Therefore, it is clear that
he is authorized by the complainant to institute the case and
depose on behalf of the complainant.
11. The disputed cheque at exhibit 18 is seen to be referred to in
evidence affidavit of CW1 Bhagwan. The said cheque shows the
name of the accused as drawer and the name of the complainant
as payee. The signature of the drawer appearing thereon is the
-- 7 of 15 --
C.C. NO. 5600280/SC/2025 ::8:: JUDGMENT
same that of the signature of the accused made on her plea
recorded before this Court and vakalatnama filed by her advocate.
Therefore, it is clear that the disputed cheque bears her signature.
12. The agreement at exhibit 17 is seen to be referred to in
evidence affidavit of CW1 Bhagwan. It bears signature of Chief
Executive Officer and Chairman of the complainant. The
signature seen thereon against the name of the accused is the
same that of her signature made on the disputed cheque, her plea
and vakalatnama. Hence, it is clear that she signed the said
agreement. The said agreement shows that the loan of
Rs.3,50,000/- was sanctioned by the complainant to her and she
agreed to repay the same within 84 months along with the interest
@12% p.a. It also shows that the said agreement entered into on
11/06/2024 and the loan was sanctioned to the accused vide
resolution No.10 dated 06/06/2024 passed by the Managing
Committee of the complainant. Therefore, it is clear that the loan
of Rs.3,50,000/- was sanctioned and disbursed by the complainant
to her on 06/06/2024.
13. The account statement at exhibit 23 is seen to be referred to
in evidence affidavit of CW1 Bhagwan. It bears seal of the
complainant and signature of its accountant. It is seen to be
maintained by the complainant for the loan account of the
accused. It shows the amount of Rs.3,65,790/- was outstanding
against the accused as on 17/10/2024.
14. The certificate at exhibit 23 is seen to be referred to in
-- 8 of 15 --
C.C. NO. 5600280/SC/2025 ::9:: JUDGMENT
evidence affidavit of CW1 Bhagwan. It bears seal of the
complainant and signature of its accountant. It is seen to be issued
by the complainant. It shows that the amount of Rs.3,65,790/- was
outstanding against the accused as on 17/10/2024. Therefore, it is
clear that the amount of Rs.3,65,790/- was outstanding against her
as on 17/10/2024.
15. Now it is to be ascertained as to whether the accused issued
the disputed cheque to the complainant for discharge of any debt
or other legal liability. In accordance with Section 139 of the N.I.
Act, it shall be presumed, unless the contrary is proved that the
holder of a cheque received the cheque of the nature referred to in
Section 138 for the discharge, in whole or a part, of any debt or
other liability. The presumption places the evidential burden on
the accused, for proving that the cheque had not been received by
the complainant towards the discharge of any liability.
16. The complainant is a Co-operative Credit Society registered
under the Maharashtra Co-operative Societies Act, 1960. It has
come in testimony of CW1 Bhagwan that the said cheque was
issued for the payment of outstanding loan availed by the accused
from the complainant. It is also clear that the amount of
Rs.3,65,790/- was due from her as on 17/10/2024. Needless to say
that the cheque amount is Rs.3,60,000/-. Therefore, it is clear that
the accused must have issued the disputed cheque to repay the
loan amount. This seems to be legal transaction.
17. The complainant was to prove existence of legally
-- 9 of 15 --
C.C. NO. 5600280/SC/2025 ::10:: JUDGMENT
enforceable debt before presumption under Section 139 of the
N.I. Act starts operating and burden shifts to the accused. Since
the cheque was issued by the accused and it bears her signature,
presumption under Section 139 of Act would operate. Thus,
burden was on her to disprove the cheque or existence of any
legally recoverable debt or liability. But in vain. The accused has
failed to disprove the existence of any legal liability. It is clear as
discussed earlier that she issued the disputed cheque towards
payment of the outstanding loan amount. In view of this, the
disputed cheque issued by her has legal sanctity and it comes
under purview of the above legal transaction. Therefore, it is
proved that the disputed cheque was drawn by her for the
discharge of legally enforceable debt or liability. Thus, the finding
of point No. 1 is recorded accordingly.
AS TO POINT NO. 2 :-
18. It is to be ascertained as to whether the accused dishonoured
the cheque. Black's Law Dictionary defines the term 'Dishonour'
as follows :-
''Dishonour means to refuse to accept or pay a
draft or to pay a promissory note when duly
presented. An instrument is dishonoured when a
necessary or optional presentation is duly made
and due acceptance or payment is refused, or
cannot be obtained within the prescribed time, or
in case of bank collection, the instrument is
reasonably returned by the midnight deadline; or
presentation is excused and the instrument is not
duly accepted or paid.''
-- 10 of 15 --
C.C. NO. 5600280/SC/2025 ::11:: JUDGMENT
19. As seen from evidence affidavit of CW1 Bhagwan, the
complainant deposited the said cheque in the Mumbai District
Co-op. Bank Ltd. Palton road branch, Mumbai. It is also seen in
his testimony that on 18/10/2024, the said cheque was returned
with memo by the bank unpaid with endorsement of 'funds
insufficient'. The bank memo at exhibit 19 shows that the cheque
was returned with endorsement 'funds insufficient’. It means the
cheque was returned unpaid. Therefore, it is proved that the
accused dishonoured the cheque. Thus, the finding of point No.2
is recorded accordingly.
AS TO POINT NO. 3 :-
20. It is to be ascertained as to whether the complainant made
demand of the cheque amount by giving a notice in writing to the
accused within 30 days from the receipt of information from the
bank regarding the return of cheque unpaid. In evidence affidavit
of CW1 Bhagwan, he has deposed that the complainant issued the
accused a demand notice dated 11/11/2024 by registered post for
demanding the amount of the cheque after dishonour. The office
copy of the demand notice at exhibit 21 shows that the
complainant demanded the accused the amount of the cheque.
Needless to say that the cheque was dishourned on 18/10/2024.
21. The address of the accused mentioned on the demand notice
is the same that of her address seen on the agreement at exhibit
17. In view of this, it is clear that the demand notice was issued
on her last known correct address. Moreover, it is seen from the
-- 11 of 15 --
C.C. NO. 5600280/SC/2025 ::12:: JUDGMENT
postal track report exhibit 22 that the demand notice dated
11/11/2024 issued by the complainant was duly served upon her
on 12/11/2024. Therefore, it is proved that the demand notice
dated 11/11/2024 issued by the complainant was duly served upon
her on 12/11/2024 and the said notice was issued to her within 30
days from the receipt of information from the bank regarding the
return of the cheque unpaid. Thus, the finding of point No. 3 is
recorded accordingly.
AS TO POINT NO. 4 :-
22. Now it is to be ascertained as to whether the accused failed
to make the payment of the amount of the cheque within 15 days
from the receipt of the notice. It is evident in testimony of CW1
Bhagwan that the accused did not pay the complainant the amount
of the cheque despite the receipt of the notice. It is already proved
that the demand notice dated 11/11/2024 was served upon her on
12/11/2024. However, she failed to make the payment of the
amount of the cheque within 15 days from such intimation.
Therefore, it is proved that the accused failed to make the
payment of the cheque amount within 15 days from receipt of
notice. Thus, the finding of point No. 4 is recorded accordingly.
AS TO POINT NO. 5 :-
23. In the above discussions and findings of point Nos. 1 to 4, I
have tried to separate the grains from the chaffs i.e. truth from
falsehood. The fundamental ingredients of the offence under
Section 138 of the N.I. Act are proved against the accused. Hence,
-- 12 of 15 --
C.C. NO. 5600280/SC/2025 ::13:: JUDGMENT
this Court comes to conclusion that the offence punishable under
Section 138 of the N. I. Act is proved against her beyond
reasonable doubt. I, therefore, hold her guilty for having
committed an offence punishable under Section 138 of the N.I.
Act. This is an economical offence. Hence, I do not seem to be
justifiable to release the accused on probation of good conduct as
per the Probation of Offenders Act, 1958.
24. In order to pass a sentence to the accused, she can be given
an opportunity. But she is not present. She does not attend the
Court since long. In view of Section 143(3) of the N.I. Act, every
trial under this section shall be conducted as expeditiously as
possible and endeavour shall be made to conclude the trial within
six months from the date of filing of the complaint. There is no
provision under Chapter XXI of the B.N.S.S. to hear the accused
on the point of sentence as found in Section 271(2) of Chapter
IXX of the B.N.S.S. However, all the mitigating factors in favour
of the accused are considered.
25. The punishment provided for the offence under Section 138
of the N.I. Act is imprisonment for the term which may extend to
two years or with a fine which may extend to twice the amount of
cheque or with both. The accused did not pay the loan outstanding
amount to the complainant. To discharge the said liability, she
issued the disputed cheque. Moreover, she was well aware of the
consequences of issuing the cheque. If the complainant had
advance loan to its other member, it would have earned profit.
-- 13 of 15 --
C.C. NO. 5600280/SC/2025 ::14:: JUDGMENT
26. The punishment should be proportionate to the act. The
main purpose of Section 138 of the N. I. Act is not just to punish
the drawer of a dishonoured cheque i.e. the accused, but to see
that the complainant gets the money due to it. Since the dishonour
of the disputed cheque involved a financial loss to the
complainant, awarding a compensation to it under Section 395(3)
of the B.N.S.S. would serve the purpose of justice. Hence,
imposing a sentence of simple imprisonment for six months and a
compensation amount equal to the disputed cheque amount with
9% interest per annum from the date of the complaint till actual
realization as compensation would meet the ends of justice. In the
result, following order is passed.
ORDER
1) The accused is convicted of the offence
punishable under Section 138 of the Negotiable
Instruments Act, 1881 vide Section 278(2) of the
Bharatiya Nagarik Suraksha Sanhita, 2023 and she
is sentenced to suffer simple imprisonment for six
months.
2) The accused shall pay the complainant a
compensation of Rs.3,60,000/- (Three Lakh Sixty
Thousand only) along with 9% simple interest per
annum from the date of filing of the complaint till
actual realization thereof vide Section 395(3) of the
Bharatiya Nagarik Suraksha Sanhita, 2023 and in
-- 14 of 15 --
C.C. NO. 5600280/SC/2025 ::15:: JUDGMENT
default, shall undergo simple imprisonment for
three months.
3) The bail bond of the accused, if any, stands
surrendered.
4) The copy of this judgment shall be given to the
accused free of cost.
(D. A. Argade)
Mazgaon Judicial Magistrate (First Class)
Date 21/08/2026 56th Court, Mazgaon, Mumbai
Dictated on 21/08/2026
Typed on 21/08/2026
Ready on 21/08/2026
Signed on 21/08/2026
Rgz.
-- 15 of 15 --