Final Order 5

Order Details: Copy of Judgment .
Pdf Text: Judgment 1 C.C. No.2000624/SC/2023
MHMM120031962023 CNR No.: MHMM120031962023
Received on : 06.04.2023
Registered on : 20.05.2023
Decided on : 06.05.2026
Duration : 03 Y 01 M 00 D
Exh. No. : 47
Title Page of Judgment.
-- Part “A”--
IN THE COURT OF JUDICIAL MAGISTRATE
(FIRST CLASS), 20th COURT, MAZGAON,
MUMBAI
Present : Paresh V. Kulkarni.
20th Judicial Magistrate (First Class), Mazgaon,
Mumbai.
Summary Criminal Case No.2000624/SC/2023
Complainant Mr. Akshay Anant Chavan
Age : 41 years, Occ : Business,
R/at : 1105, Amorina Heights, Bhaji Galli, 80,
Sleater Road, Grant Road (W), Mumbai 400 007.
Represented by Advocate Mr. Yogesh Dalvi/
Ms. Sarita Ramsharan Yadav/
Mr. Sagar Kutarkar.
Accused Mr. Sandeep Suresh Jadhav
Age : 38 Years, Occ : Business,
R/at :- 1303, Amorina Heights, Bhaji Galli, 80,
Sleater Road, Grant Road (W), Mumbai 400 007.
Represented by Advocate Mr. Yash Juwatkar/
Mr. Sanjay Rathod/
Mr. Pratik Palande/
Mr. Yash Juthekar/
Mr. Yash Lodh.
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Judgment 2 C.C. No.2000624/SC/2023
-- Part “B”--
Cause of action arose 09.03.2023
Date of FIR ---.
Date of Complaint 06.04.2023
Date of plea 27.09.2024
Date of commencement of
evidence
07.10.2023
Date of which judgment is
reserved
-----.
Date of the Judgment 06.05.2026
Date of the Sentencing order, if
any
06.05.2026
--Accused Details:--
Rank
of the
Accus
ed
Name of
Accused
Date
of
Arrest
Date of
release
on Bail
Offenc
es
charge
d with
Whether
acquitted
or
convicted
Sente
nce
impos
ed
Period
of
detenti
on
underg
one
during
trial for
purpose
of
Section
428
Cr.P.C.
Mr.
Sandeep
Suresh
Jadhav
---- 27.09.20
24
U/s.
138 of
the
Negoti
able
Instru
ments
Act.
Accused
is
convicted
As per
final
order
----
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Judgment 3 C.C. No.2000624/SC/2023
-- Part “C” --
LIST OF PROSECUTION/DEFENCE/COURT WITNESSES.
A- Prosecution/Complainant:
Rank Name Nature of Evidence
(Eye witness, police
witness, expert
witness, medical
witness, panch
witness, other witness)
CW – 1 Mr. Akshay Anant Chavan Complainant
CW – 2 Mr. Kiran Balkrishna Tawade CW2
B- Defence Witnesses, if any :
Rank Name Nature of Evidence
(Eye witness, police witness, expert witness,
medical witness, panch witness, other
witness)
-- -- --
C- Court Witnesses, if any :
Rank Name Nature of Evidence
(Eye witness, police witness, expert witness,
medical witness, panch witness, other
witness)
-- -- --
LIST OF PROSECUTION/DEFENCE/COURT EXHIBITS
Sr. No. Exhibit Number Description
1 Exh.5 Evidence affidavit of the complainant Mr.
Akshay Anant Chavan.
2 Exh.32 Evidence affidavit of CW2 Mr. Kiran
Balkrishna Tawade.
3 Exh.22 The cheque.
4 Exh.23 The bank return memo.
5 Exh.24 The demand notice.
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Judgment 4 C.C. No.2000624/SC/2023
6 Exh.25 Postal receipt. Disclosing dispatch of the
demand notice.
7 Exh.26 Returned envelope along-with A.D. Card.
8 Exh.27 The demand notice.
9 Exh.28 A.D. Card.
10 Article – A Xerox copy of bank statement.
11 Article – B Xerox copy of track report.
12 Article – C Xerox copy of postal receipt.
B. Defence :
Sr. No. Exhibit Number Description
-- -- --
C. Court Exhibits:
Sr. No. Exhibit Number Description
1 Exh.14 Plea
2 Exh.41 Statement of accused under section 313
of the Code of Criminal Procedure.
D. Material Objects:
Sr. No. Exhibit Number Description
-- -- --
JUDGMENT
(Delivered today on this Wednesday 6th May, 2026)
1 The accused stands prosecuted for having committed an
offence punishable under Section 138 of the Negotiable Instruments
Act, 1881 (N.I. Act).
2 The complaint :-
The complainant got acquainted with the accused through
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Judgment 5 C.C. No.2000624/SC/2023
one of his friend namely Mr. Prasanna Kadam. The complainant and
accused are residing in one building. The accused pretended himself as
businessman, engaged in business of providing gifting items of various
companies. The accused met the complainant along-with Mr. Prasanna
Kadam and told that he has got various orders from the branded
companies and shown his incapacity of funding to fulfill the order and
requested for an amount of ₹50,00,000/- to the complainant. He also
assured to return the amount within three months. The complainant
was convinced and paid ₹20,00,000/- to the accused out of which
₹15,00,000/- was transferred in bank account of accused on
18.02.2022 through RTGS and an amount of ₹5,00,000/- was paid in
cash to the accused.
2/2 To discharge the liability, the accused issued cheque bearing
no.118250 for an amount of ₹15,00,000/- dated 09.05.2022 of the
bank account of his wife. It was dishonoured. Accused also handed over
cheque bearing no.000056 dated 20.05.2022 of his own bank account.
It was also dishonoured. The accused transferred approximately sum of
₹4,00,000/- in the month of August – September 2022 in the account of
complainant with the assurance that he will pay remaining amount.
2/3 On repeated demand, to discharge the legal debt and
liabilities, the accused issued cheque bearing no.488189 dated
31.12.2022 for an amount of Rs.10,00,000/- drawn on the State Bank
of India, Tardeo, Mumbai branch (disputed cheque). The complainant
deposited the same in its bank. But, it was dishonoured with the reason
“Funds Insufficient” on 17.01.2023.
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Judgment 6 C.C. No.2000624/SC/2023
2/4 The complainant issued the demand notice dated
14.02.2023 to the accused by RPAD. It was returned back as the
accused has not claimed the notice and intimation was given to him.
Therefore, the notice is duly served. But the accused has not paid the
cheque amount nor the notice is replied. Therefore, cause of action
arose to file the present complaint which is within limitation.
3 After filing of complaint, process was issued against the
accused vide order below Exh.1 on 07.10.2023 for the offence
punishable under section 138 of the N.I. Act. Accused appeared. Plea of
accused was recorded at Exh.14. It was read over and explained to the
accused in vernacular language to which he pleaded not guilty and
claimed to be tried. The statement of accused under section 313 of Code
of Criminal Procedure (the Code) was recorded at Exh.41.
4 The points for determination along-with my findings
thereon are as under:
Points Findings
1) Whether the complainant has proved that the
accused issued the cheque in question to
discharge legally enforceable debt or other
liability?
Proved
2) Whether he has proved that the cheque was
presented to the bank within its validity
period and it was dishonoured for the reason
“Funds Insufficient”?
Proved
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3) Whether he has proved that he issued the
demand notice to the accused in compliance
to Section 138 of the N.I Act?
Proved
4) Whether he has proved that despite service of
the demand notice, the accused failed to
repay the cheque amounts in compliance to
Section 138 of the N. I. Act?
Proved
5) What order? As per final
order
R E A S O N S
5 I have bestowed my careful thoughts to the evidence on
record. I have heard the learned advocate for the complainant. I have
no opportunity to hear the learned advocate for the accused being
absent. Accused also remained absent.
AS TO POINT NO. 1 :
6 It is the case of the complainant that he got to know the
accused through their common friend by name Mr. Prasanna. Similarly,
the complainant and accused reside in one building. This relation is not
disputed by the accused by denying the same by way of cross-
examination of CW1 Mr. Akshay. Therefore, this fact remained
unchallenged. Resultantly, it has to be believed that the complainant
was having the reason of cordial relation with the accused to pay an
amount as stated in the complaint.
7 The complainant has further come up with the story that he
paid an amount of ₹20,00,000/- to the accused out of which an amount
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Judgment 8 C.C. No.2000624/SC/2023
of ₹15,00,000/- was transferred to the bank account of accused on
18.02.2022 and remaining amount of ₹5,00,000/- was paid in cash.
Certainly, it is for complainant to establish his case of such payment of
amount.
8 The complainant has relied upon the oral evidence of CW1
Mr. Akshay who has stated on oath that he has paid the said amount to
the accused. It can be noted that the accused has not taken any heed to
cross-examine the complainant though having ample opportunities.
Resultantly, the evidence in that regard remained unchallenged.
Moreover, the complainant has examined CW2 Mr. Kiran who has stated
on oath at Exh.32 that the accused has taken financial help from the
complainant and handed over the cheque to the complainant in his
presence for repayment of the money. Though the learned advocate for
the accused has conducted cross-examination of the said witness, he has
not succeeded to grab any material admission. Rather, CW2 Kiran has
admitted that there was no writing between complainant and accused
about the assurance to repay the amount. In that light, the complainant
has produced the oral evidence. At the cost of repetition, it can be noted
that the accused has not conducted the cross-examination of CW1 Mr.
Akshay who is the complainant itself.
9 The disputed cheque is issued in the name of complainant
which is at Exh.22. The accused has not disputed the issuance of the
said cheque nor he has raised any quarrel about the contents and
signature on the said cheque. In that light, it was for accused to explain
how the custody of the disputed cheque handed over to the
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Judgment 9 C.C. No.2000624/SC/2023
complainant. However, the accused remained silent and chosen not to
conduct cross-examination of the complainant. Thus, the custody of the
disputed cheque with the complainant is also one of the factor to prove
the transaction between the parties.
10 The complainant had issued the demand notice to the
accused on 14.02.2023. It was served as it was returned with the
remark “unclaimed”. Needless to mention that return of the notice with
such remark is due service under section 27 of the General Clauses Act
as it was issued on correct address not being disputed. It was an
opportunity for the accused to raise dispute about the alleged
transaction. However, the accused has not replied the same. The
accused has also not filed any criminal complaint about the misuse of
the disputed cheque. Though the accused has stated in his statement
under section 313 of the Code of Criminal Procedure that the cheque
was given as security and it was misused, there is no foundation for
such answer. In fact, the accused ought to have raised such objection at
the earliest opportunity i.e. after receiving the demand notice. At least,
he ought to have raised such objection after appearing in the
proceeding. In absence of such objection, it has to be inferred that the
transaction between the parties as stated in the complaint is true and
correct.
11 CW1 Mr. Akshay has stated in his evidence affidavit that
after filing of the present complaint, the accused transferred a sum of
₹5,00,000/- on 01.06.2023 to the complainant. He has further stated
that still an amount of ₹11,00,000/- is due from the accused. Thus, the
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Judgment 10 C.C. No.2000624/SC/2023
said amount of ₹5,00,000/- is not the part payment of disputed cheque
amount. The said evidence is not challenged by the accused. Moreover,
the said amount is paid after filing the present proceeding that too it is
part payment. Therefore, it will make no difference.
12 Needless to mention that though there is presumption
under section 118 and 139 of the N.I. Act in favour of the complainant
in whose favour the cheques are issued, it will not exempt the
complainant from establishing the alleged transaction between him and
accused. It would not be out of place to refer here the proposition of
law/principle as laid down below by the Hon’ble the Apex court which
are required to be considered.
In Rangappa v. Sri Mohan, (2010) 11 SCC 441,
26. In light of these extracts, we are in agreement
with the respondent claimant 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 [(2008) 4
SCC 54 : (2008) 2 SCC (Cri) 166] 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 legally enforceable debt or liability
can be contested. However, there can be no doubt that there is
an initial presumption which favours the complainant.
13 The Hon'ble Apex Court in the case of Basalingapa Vs.
Mudibasappa reported in (2019) 5 SCC 418 wherein, it is observed as
under….
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Judgment 11 C.C. No.2000624/SC/2023
"25. We having noticed the ratio laid down by this Court in the
above cases on Sections 118(a) and 139, we now summarise
the principles enumerated by this Court in the following
manner:
25.1. Once the execution of cheque is admitted Section 139 of
the Act mandates a presumption that the cheque was for the
discharge of any debt or other liability.
25.2. The presumption under Section 139 is a rebuttable
presumption and the onus is on the accused to raise probable
defence. The standard of proof for rebutting the presumption
is that of preponderance of probabilities.
25.3. To rebut the presumption, it is open for the accused to
rely on evidence led by him or the accused can also rely on the
materials submitted by the complainant in order to raise a
probable defence. Inference of preponderance of probabilities
can be drawn not only from the materials brought on record
by the parties but also by reference to the circumstances upon
which they rely.
25.5. It is not necessary for the accused to come in the witness
box to support his defence."
14 Thus, in view of the above observations, it is clear that once
the cheque is admitted, as per the provisions under section 139 of the
N.I. Act, mandates the presumption that the cheque was issued towards
legally enforceable debt. The complainant has already discharged his
burden to establish the case as stated in the complaint.
15 Considering the above discussion, it is clear that the
complainant has produced cogent documentary as well as oral evidence
to prove that the disputed cheque was issued towards legally
enforceable debt. Accordingly, I answer point no.1 in affirmative.
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AS TO POINT NO. 2 :
16 The complainant has contended in the complaint itself that
the disputed cheque was not honoured for the reason “Funds
Insufficient”. CW1 Akshay has given oral evidence in that regard. He
has also proved the memo issued by the bank which is at Exh.23. It
shows that the disputed cheque was presented for encashment within
stipulated time and it was not honoured for the reason “Funds
Insufficient”. Hence, it has to be held that the disputed cheque was so
dishonoured for the given reason. Accordingly, I answer this point in the
affirmative.
AS TO POINT NOS. 3 AND 4 :
17 The demand notice was issued by the complainant to the
accused on 14.02.2023. The office copy of the same is filed at Exh.24.
CW1 Mr. Akshay has proved the same. Perusal of the contents of the
notice show that the complainant has made demand of the disputed
cheque amount stating that the disputed cheque was not honoured. The
return of the notice packet shows the endorsement “Unclaimed”. The
complainant had stated on oath that the notice was issued on correct
address of accused. As per the provision under section 27 of the General
Clauses Act, if the notice is issued on correct address and it is reported
as unclaimed, it is due service.
18 At this juncture I conveniently refer the judgment in the
case of C.C. Alavi Haji Vs. Palapetty Muhammed And Anr, Appeal (Crl)
767 of 2007, wherein, it is observed that such service is due service.
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Judgment 13 C.C. No.2000624/SC/2023
Similarly, it is further observed that when a notice is sent by registered
post and is returned with a postal endorsement “refused” or “not
available in the house” or “house locked” or “shop closed” or “addressee
not in station”, due service has to be presumed. It is further observed
that notice demanding payment sent to accused through registered post
and if accused claims that he did not receive the notice, he can make
payment within 15 days from receipt of summons from the Court to
escape prosecution.
19 The accused ought to have paid the amount of disputed
cheque within 15 days from the date of receiving the notice. However,
accused neither paid the said amount nor replied the notice. The
present complaint is filed within limitation. Accordingly, I answer both
points in the affirmative.
AS TO POINT NO. 5 :
20 The accused is held guilty of the alleged offence. Therefore,
the chance to hear the accused on the point of sentence can be
extended. But accused is absent. However, the learned advocate for the
accused has submitted to show the leniency and award minimum
sentence.
21 It can be noted that the offence under section 138 of the
N.I. Act is economical offence. As stated earlier, the accused has not
conducted cross-examination of complainant. His failure to do the same
is not attributable to his bonafide conduct per se. In that light, it can be
considered that he has failed to honour the disputed cheque
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Judgment 14 C.C. No.2000624/SC/2023
intentionally. The intention of legislature to enact that the said provision
is to deter the public from committing such acts. Therefore, in my
considered view, the accused has to be punished in the true spirit of
such enactment. Therefore, the accused is not entitled for the benefit
under the provisions of Probation of Offenders Act. Similarly, it is the
duty of the Court to see while imposing sentence that the amount of
cheque has to be extended to the complainant. In that light, the amount
of cheque along-with 9% interest p.a. can be directed under section
357(3) of the Code. Accordingly, I pass following order is passed.
ORDER
1. The accused stands convicted of the offence punishable
under Section 138 of the Negotiable Instruments Act under Section 255
(2) of the Code of Criminal Procedure and sentenced to suffer simple
imprisonment of 03 (Three) months.
2. The accused stand sentenced to pay compensation amount
of ₹10,00,000/- (₹ Ten Lakhs) only along-with interest @ 9% p.a. to
the complainant under Section 357 (3) of the Code of Criminal
Procedure from the date of filing of the complaint till realization and in
default, shall undergo simple imprisonment for 01 (One) month.
3. Bail bonds of accused be surrendered.
4. True copy of the judgment be supplied to the accused free
of costs.
(Judgment dictated and pronounced in open Court).
(Paresh V. Kulkarni),
Date: 06.05.2026 Judicial Magistrate First Class,
20th Court, Mazgaon, Mumbai.
Judgment dictated on :- 06.05.2026
Judgment signed on :- 06.05.2026
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