Final Order 5

Order Details: Copy of Judgment
Pdf Text: MHMM180004622020 Received On : 14.01.2020
Registered on : 14.01.2020
Decided on : 05.02.2026
Duration : 06 Y 00 M 12 D
Part ‘A’
(Para 44(i) of Chapter VI of Criminal Manual)
IN THE COURT OF JUDICIAL MAGISTRATE, FIRST CLASS,
58TH COURT, BANDRA, MUMBAI
(Presided over by : Mahesh Prabhakar Saraf)
Summons Case No.5800062/SS/2020
JUDGMENT Exh.52
(Delivered on 5th February, 2026)
Prosecution/
Complainant : Sunil Siyaram Jha
Age : 43 years, Occ: Business,
R/o. Siddhivinayak Chawl Committee,
Gazdhar Bandh, Govind Nagar,
Satacruz (W), Mumbai-400 054.
Represented by : Advocate Mr. O. P. Dubey and Mr. Shishir Singh
Accused : Mr. Ramdevan Nair
Age :54 years, Occ.: Business,
R/o. At A/603, 6th Floor, Vaishnavi CHS, Gorai
III, Plot No.RSC-1//3, Gorai Road, Borivali (W),
Mumabi, Mumbai-400 091.
Represented by : Advocate Mr. I. S. Mishra
Part ‘B’
(Para 44(ii) of Chapter VI of Criminal Manual)
Date of Offence : 18-02-2019
Date of filing complaint : 14-01-2020
Date of Registration of Complaint : 14-01-2020
Date of Recording Plea : 22-08-2022
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Judgment Exh.52
Date of Commencement of evidence : 26-09-2024
Date on which Judgment is Reserved : 05-02-2026
Date of the Judgment : 05-02-2026
Date of sentencing order, if any : 05-02-2026
Accused Details
Rank
of the
Accus
ed
Name of
Accused
Date
of
Arres
t
Date
of
Releas
ed on
bail
Offence
charged
with
Final order Sente
nce
Period of
detention
undergone
Ramdevan
Nair
- 22.08
.2022
U/s. 138
of the N.I.
Act, 1881
Acquitted. - -
Part C
(Para 44(iii) of Chapter VI of Criminal Manual)
List of Prosecution/Defence/Court Witnesses
A) Prosecution/Complainant’s Witnesses -
CW NAME Nature of Evidence Exhibits
01 Sunil Siyaram Zha Oral 21
B) Defence Witnesses -
DW NAME Nature of Evidence Exhibits
01 - -
C) Court Witnesses, if any -
CW NAME Nature of Evidence Exhibits
01 - - -
List of Prosecution/Defence/Court Exhibits
A) Prosecution/Complainant -
Sr. No. Exhibit Number Description
1. Exhibit – 23/CW01 Cheque No.149934 dated
15.05.2018
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2. Exhibit – 24/CW01 Cheque Return Memo
dated 10.08.2018
3. Exhibit – 25/CW01 Cheque No.000012 dated
10.10.2018
4. Exhibit – 26/CW01 Cheque Return Memo
dated 21.01.2019
5. Exhibit – 27/CW01 Demand Notice dated
02.02.2019
6. Exhibit – 28 to 30/CW01 Three Postal Receipts
7. Exhibit – 31 to 36/CW01 Registered Post Envelops
B) Defence -
Sr. No. Exhibit Number Description
1. Exhibit - /DW01 -
C) Court Exhibits -
Sr. No. Exhibit Number Description
1. Exhibit - /CW01 -
D) Material Object -
Sr. No. Material Object Number Description
1. - -
JUDGMENT
(Delivered on this 5th February, 2026)
Accused is tried for an offence punishable under section
138 of the Negotiable Instrument Act, 1881, for dishonor of cheque
alleged to be issued for repayment of money paid to him against
purchase of flat of one Mr. Shiraji.
2. Complainant’s case in nut shell is as follows:
That complainant was knowing accused as he had obtained
friendly loan from him. One of the friend of accused named Mr. Shiraji
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was intending to sell his flat situated at Thane. Accused and said Mr.
Shiraji approached him for selling flat. Complainant shown willingness
to purchase said flat against consideration of Rs.33 lakhs. On
representation of accused as to urgent need of Rs.15 lakhs,
complainant paid said amount to the accused against purchasing flat of
said Mr. Shiraji. Subsequently, he came to know that flat is owned by
one Mr. Rebello. On asking about the same, accused issued subject
cheque and executed other documents. On depositing said cheque,
returned unpaid with remark ‘Drawers Signature Differs’ vide memo
dated 21.01.2009. Accused was called upon to make payment of
dishonored cheque by issuing demand notice dated 02.02.2019.
Accused refused to accept all the three envelops containing demand
notices. The envelops returned ‘Unclaimed’. Accused failed to make
payment within stipulated period. Hence, this complaint.
3. My Ld. Predecessor has taken cognizance of the complaint
and issued process against the accused under section 138 of Negotiable
Instruments Act. On appearance of the accused, particulars of offence
were stated to him in vernacular to which the accused pleaded not
guilty vide Plea Exh.16 on 22.08.2022 and claimed to be tried. The
case was tried as summons trial.
4. The accused was given more than sufficient opportunity to
exercise his right of cross examination as well as giving explanation to
the incriminating substance found in the evidence of the complainant
against him but he failed to exercise both rights by continuously
remaining absent. His advocate also remained absent and had not
opted to exercise the right of cross examination or giving statement on
behalf of the accused in his absence. No cross order came to be passed
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on 11.02.2025. Statement of accused under section 313 of Code of
Criminal Procedure could not be recorded as accused remained absent.
The same was dispensed with vide order dated 13.06.2025 below
Exh.01. Today also accused absent. His advocate present.
5. Heard, advocate Mr. O. P. Dubey for the complainant.
Perused written notes of arguments Exh.48. Heard advocate I. S.
Mishra for the accused. Perused written notes of arguments filed at
Exh.50.
6. Following points arise for my determination to which I
have recorded my findings with reasons thereto as follows-
Sr.No. POINTS FINDINGS
1. Whether it is proved that the accused has
drawn subject cheque bearing No.000012
for Rs.15,00,000/- dated 10.10.2018 on
the account of accused maintained with
Kotak Mahindra Bank Ltd.Mumbai, in
favour of the complainant in discharge of
the legal debt or liability ?
[
: No.
2. Whether it is proved that the cheque was
dishonored for the reason ‘Drawer’s
Signature Differs’ and returned unpaid to
the complainant?
: No.
3. Whether it is proved that the accused has
received demand notice dated 02.02.2019,
issued u/sec.138(b) of the Negotiable
Instruments Act sent by the complainant
making demand of payment of said cheque
amount in writing within one month of
receipt of information from the bank
regarding dishonor of cheque?
: No.
4. Whether it is proved that despite service of
demand notice, the accused failed to pay
the cheque amount within statutory period : No.
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of 15 days after receiving notice and
thereby committed an offence punishable
under section 138 of the Negotiable
Instruments Act?
5. What order? : Accused is
acquitted.
REASONS
7. Complainant has only examined himself at CW-01 at
Exh.21 whose evidence has gone unchallenged on behalf of the
accused. Besides oral evidence complainant has relied upon cheque
Exh.23 and Exh.25, demand notice Exh.27 etc.
AS TO POINT NO.1:-
8. It is the case of complainant that for purchasing flat of
third person Mr. Shiraji he paid Rs.15 lakhs in cash to accused.
Subsequently, he found that flat is owned by one Mr. Rebello.
Thereafter, accused issued subject cheque for repayment of said loan
amount. Admittedly, there is no legal authenticate document placed on
record to establish giving Rs.15 lakhs and that too in cash. Entire case
is based only on presumption under section 118 and 139 of the
Negotiable Instrument Act.
9. In fact, the oral testimony of the complainant has gone
unchallenged as to the statements made therein. However, question
crops up for consideration, whether unchallenged oral evidence can
replace the requirement of legal proof as to the transaction? Whether
the transaction of giving huge amount of Rs.15 lakhs in cash against
purchase of an immovable property can not be said to be a legal and
valid transaction without any documentation? Whether presumption of
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law under section 118 and 139 would follow in favour of complainant
without any documentary evidence and particularly when the oral
evidence is unchallenged, notice reply not issued?
10. Averments made in complaint are germen to decide aspect
of legality of the transaction, existence of legal liability against drawer
of the instrument. First of all, there is reason to believe that alleged Flat
Sale Purchase transaction was in between complainant and said Mr.
Shiraji whose full name is also not mentioned in the complaint. There
was no Privity of Contract in between complainant and accused to
believe paying or receiving such a huge amount of Rs.15 lakhs that too
in cash to the accused.
11. Therefore, the averments as to purpose of giving alleged
amount as well as alleged transaction is not duly proved. Unchallenged
oral evidence of CW-01 will not replace the legal necessity of adducing
best evidence for proving transaction only on the basis of dishonored
cheque and demand notice. His testimony can not be believed
considering the demonstration of mode of alleged payment to the
accused who is not owner of the property.
12. Needless to state that any money transaction more than
Rs.20,000/- in cash is barred by law, circulars of Reserve Bank of India
and Income Tax Department. Therefore, said transaction appears illegal
to consider the aspect of legal debt or legally enforceable liability
within purview section 138 of the Act.
13. Section 139 of Negotiable Instrument Act, 1881 draws a
legal presumption in favour of the holder of the cheque, which states,
“
It shall be presumed, unless the contrary is proved, that the holder of
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a cheque received the cheque, of the nature referred to in section 138,
for the discharge, in whole or in part, of any debt or other liability.”
14. It is the case of complainant that subject cheque is issued
by accused who had no liability or who had no legal nexus with the
alleged flat sell transaction. It was returned for the reason ‘Drawers
Signature Differs’. In the facts and circumstances, it was legal duty of
the complainant to prove signature of the accused on the disputed
cheque. Two cheques are produced on record. One of the cheque
produced at Exh.23 is drawn on account of V.R.Traders. Disputed
cheque Exh.25 is drawn on account of Ramdav Nair. Complainant has
issued demand notice to one Mr. Ramdevan Nair who is made party to
the proceeding. No evidence on record to show that both are one and
the same persons.
15. For drawing presumption under section 139 or 118 of the
Act, the instrument must have been drawn on account of the person
who gave the cheque in discharge of liability to other side. Merely
because accused appeared, pleaded not guilty and evidence went
unchallenged will not replace the statutory requirement of law.
Complainant has not examined bank officer to prove that cheque
Exh.25 belongs to the account of accused. Therefore, in my view
considering the doubtful case, complainant would not be benefited by
the presumption under section 139 or 118(a) merely for the reason of
custody of the dishonored cheque without proof of existence of legal
liability which is Sine Qua Non. Possibility of misuse of blank signed
cheque of said Ramdav Nair out of loan transaction can not be ruled
out. Therefore, I answer point No.1 in the negative.
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AS TO POINT NO.2 :
16. The complainant has not examined the Bank Officer of
Kotak Mahindra Bank Ltd. to prove the dishonor memo Exh.26.
Dishonor Exh.26 do not bears signature of issuing authority or Seal of
the Bank. Even though it is accepted that it is system generated memo,
required Certificate of authenticity under section 65(4)(b) of Indian
Evidence Act not produced for considering the documentary evidence
admissible by law. Hence, I answer point No.2 in the negative.
AS TO POINT NO.3 :
17. Notice Exh.27 dated 02.02.2019 seems to be addressed to
Mr. Ramdevan Nair. Disputed cheque Exh.25 is drawn on account of
Ramdav Nair. Therefore, even though the Registered Post Envelops
returned with postal remark, ‘Unclaimed’, the same can not be accepted
as a legal and valid service of demand notice upon the accused. The
cloud of suspicion of two independent legal entities not removed by
cogent and confidence inspiring evidence. Hence, I answer point No.3
in the negative.
AS TO POINT NOS.4 AND 5 :
18. Drawer of a cheque is deemed to have committed the
offence of cheque dishonour, if the following ingredients are fulfilled:
(i) A cheque is drawn for the payment of any amount of money to
another person;
(ii) The cheque is drawn for the discharge of the ‘whole or part’ of any
debt or other liability, ‘Debt or other liability’ means legally
enforceable debt or other liability; and
(iii) The cheque is returned by the bank unpaid because of insufficient
funds or any other reason.
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However, unless the stipulations in the proviso are fulfilled the offence
is not deemed to be committed. The conditions in the proviso are as
follows:
(i) The cheque must be presented in the bank within six months from
the date on which it was drawn or within the period of its validity;
(ii) The holder of the cheque must make a demand for the payment of
the ‘said amount of money’ by giving a notice in writing to the
drawer of the cheque within thirty days from the receipt of the
notice from the bank that the cheque was returned dishonored,
and
(iii) The drawer of the cheque fails to make the payment of the ‘said
amount of money’ within fifteen days from the receipt of the
notice.
19. Complainant has failed to prove legal transaction, issuance
of cheque against and in discharge of liability, reason for dishonor of
cheque, issuance of notice under section 138(b) of the Act. In absence
of proving all above essential ingredients, accused can not be held
guilty merely on the basis of custody of the dishonored cheque. Proof of
existence of legal debt or legally enforceable liability is must for
attracting penal liability under section 138 of the Negotiable
Instrument Act, 1881. Further, transaction must be legal. Hence, I
answer point No.4 in the negative.
20. In view of above findings and evidence on record accused
is entitled to an acquittal of the offence charged against him. Hence, I
pass following order.
ORDER
1. Accused is acquitted of the offence punishable under section
138 of the Negotiable Instruments Act, 1881 vide section
255(1) of the Criminal Procedure Code and section 278 (1)
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of the Bhartiya Nagarik Suraksha Sanhita, 2023.
2. Bail bond of accused stands cancelled.
3. Accused to comply section 437(A) of Code of Criminal
Procedure and section 481 of the Bhartiya Nagarik Suraksha
Sanhita, 2023 and furnish surety for further period of six
months from today.
(Judgment dictated and pronounced in open Court).
( M. P. Saraf )
Judicial Magistrate(First Class),
Date : 05.02.2026. 58th Court, Bandra, Mumbai.
J.O.Code: MH01362
CERTIFICATE
I affirm that the contents of this P.D.F. file Judgment are same, word to word as per
the original Judgment.
Name of Stenographer : Mrs.Aditi Ravikiran Dalvi
Court : Judicial Magistrate(First Class), 58th Court,
Bandra, Mumbai.
Dictated in open court on : 05.02.2026.
Transcribed and Typed on : 05.02.2026.
Judgment printed and Signed on : 05.02.2026.
Judgment Uploaded on : 05.02.2026.
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