Final Order 6

Order Details: Copy of Judgment
Pdf Text: MHMM180010262021 Received On : 11.02.2021
Registered on : 12.02.2021
Decided on : 14.05.2026
Duration : 05 Y 03 M 03 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.5800106/SS/2021
JUDGMENT Exh.49
(Delivered on 14th May, 2026)
Prosecution/
Complainant : Mr. Ram Khialdas Manghanani
Age : 78 years, Occ. Business,
Through his Constituted Attorney
Mr. Suyakant Pandurang Satam,
Age : 54 years, having address at Shop No.7,
Crystal Blue, 16th Khar Dhanda Road, Khar (W),
Mumbai-400 052.
Represented by : Advocate Mr. Madhav Kulkarni.
Accused : Mrs. Manisha Mukharji
Age : 60 years, Occ. Service,
R/o. C, Grotto Villa, 2nd Hasnabad
Lane, Santacruz(W), Mumbai-400 054.
Represented by : Advocate Mr. Anup Sharma.
Part ‘B’
(Para 44(ii) of Chapter VI of Criminal Manual)
Date of Offence : 03-02-2021
Date of filing complaint : 11-02-2021
Date of Registration of Complaint : 12-02-2021
Date of Recording Plea : 14-06-2022
Date of Commencement of evidence : 06-02-2025
Date on which Judgment is Reserved : 14-05-2026
Date of the Judgment : 14-05-2026
Date of sentencing order, if any : 14-05-2026
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Judgment Exh.49
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 Sent
ence
Period of
detention
undergon
e
Mrs.
Manisha
Mukherji
- 14.06.
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 Mr. Suyakant Pandurang Satam Oral 06
B) Defence Witnesses -
DW NAME Nature of Evidence Exhibits
01 Prakash Ali Shetty Oral 37
02 Ajay Kangultkar Oral 40
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 – 18/CW01 General Power of Attorney
2. Exhibit – 19/CW01 Statement of Accounts
3. Exhibit – 20/CW01 Cheque No.778344
4. Exhibit – 21/CW01 Cheque Return Memo dated
13.01.2021
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5. Exhibit – 22/CW01 Copy of Demand Notice dated
18.01.2021
6. Exhibit – 23/CW01 Postal Receipt dated 18.01.2021
7. Exhibit – 24/CW01 Returned Envelop
8. Exhibit – 25/CW01 Demand Notice dated 18.01.2021
B) Defence -
Sr. No. Exhibit Number Description
1. Exhibit - 39/DW01 Account Statement
2. Exhibit - 42/DW02 Authority Letter
3. Exhibit - 43/DW02 Account Statement
4. Exhibit – 44/DW02 Certified copy of cheque No.178401
5. Exhibit - 45/DW02 Certified copy of cheque No.217599
dated 10.01.2020
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 14th May, 2026)
Accused is tried for an offence punishable under section
138 of the Negotiable Instrument Act, 1881, for dishonor of cheque
allegedly to be issued for liability of payment of Air Tickets Booking.
2. The case of complainant in nut shell is as follows:
That he is Constituted Attorney of 73 years old
complainant who had business of Domestic and International Air Ticket
Booking. Accused introduced herself as a famous and renowned
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celebrity of Film Industry. She had booked various domestic and
international Air Tickets in between 09.11.2019 to 03.11.2020 from
complainant. Complainant has also booked a room in JW Marriot
Hotel, Juhu Mumbai for her some event costing to Rs.1,88,255/-. For
payment of said dues, she had issued subject cheque. The cheque
returned unpaid for the reason ‘Payment Stopped by Drawer’ vide
dishonor memo dated 13.01.2021. Accused was sent demand notice
dated 18.01.2021. The Registered Post envelop returned with postal
remark ‘Refused’ on 19.01.2021. Accused neglected to make payment
within statutory period. Hence, this complaint.
3. My Ld. Predecessor 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 her in vernacular to which the accused pleaded not
guilty vide Plea Exh.14 and claimed to be tried. The case was tried as
summons trial.
4. Statement of accused under section 313 of Code of
Criminal Procedure was recorded through her advocate at Exh.34.
Accused has taken defence of total denial of liability and false
implication on the basis of security cheque.
5. Heard advocate Mr. S. R. Sharma, Mr. Madhav Kulkarni for
the complainant and advocate Mr. Anup Sharma for the accused.
Perused written notes filed by both parties.
6. On hearing both sides following points arise for my
determination to which I have recorded my findings with reasons
thereto as follows-
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Sr.No. POINTS FINDINGS
1. Whether the accused has issued cheque
bearing No.778344 dated 06.11.2020 for
Rs.9,63,207/- drawn on United Bank of India,
Khar(W) branch, Mumbai, in favour of the
complainant in discharge of legally enforceable
liability or other debt?
: No.
2. Whether it is proved that cheque was
dishonored for the reason ‘Payment Stopped by
Drawer’ ? : Yes.
3. Whether it is proved that the accused has
received demand notice dated 18.01.2021,
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?
: Yes.
4. Whether it is proved that despite service of
demand notice, the accused failed to pay the
cheque amount within statutory period of 15
days after receiving notice and thereby
committed an offence punishable under section
138 of the Negotiable Instruments Act?
: No.
5. What order? : Accused is
acquitted.
REASONS
7. In order to prove averments made in the complaint,
complainant has examined his Constituted Attorney Mr. Suryakant
Pandurang Satam as CW-01 at Exh.16 and relied upon disputed
cheque, demand notice etc. Accused has examined bank witnesses Mr.
Prakash Ali Shetty as DW-01 at Exh.37 and Mr. Ajay Kangutkar as DW-
02 at Exh.40 and relied upon bank account statement, certified copies
of the cheques whereby payment was made.
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AS TO POINT NO.1:-
8. It is the case of complainant that he had booked various
Air Tickets for the accused in between 09.11.2019 to 03.11.2020. He
has booked a room in JW Marriot for the event of accused from
27.10.2020 to 29.10.2020. As per Ledger Account of unpaid bills
Rs.9,63,207/- are outstanding against accused. In discharge of said
outstanding amount, accused issued subject cheque Exh.20. Per contra,
accused has came with a defence of making entire payment.
9. Evidence of CW-01 states that he is servicing as an
Accountant in East West Travels and Tours Company run by
complainant. The statement Exh.19 produced by him is only regarding
the unpaid amounts. Mainly his evidence unfolds that the account
No.M039 of which Ledger Account Extract is produced pertains to the
bookings and payments of accused only. He has admitted receiving
payment of Rs.9 lakhs on 12.11.2019 by cheque from the account
Shibani Trust. He has also admitted receiving payment of Rs.8,49,000/-
on 14.01.2020 by cheque from the account of Shibani Trust. In nutshell
his evidence states that a negative balance of Rs.6,99,000/- is shown in
said statement Exh.19.
10. His testimony has falsified the case of complainant as to
the outstanding balance of Rs.9,63,207/- as mentioned in the cheque
Exh.20. On the contrary, the statement Exh.19 reflects entry of refund
of Rs.1,50,000/- on 03.11.2020 to the accused. His further admission
that accused or her family members have not travelled at any
destination after 03.11.2020 as confirmed non existence of legal
liability to pay the cheque amount by the accused.
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11. Advocate of complainant submitted that he is holder of the
Negotiable Instrument. Section 139 attracts the presumption as to the
existence of legal debt. Once signature of accused is admitted
presumption of legally enforceable debt arises shifting the burden upon
accused as held in the case of
Rangappa Vs. Mohan. Accused has not
examined himself and failed to rebut the presumption etc.
12. In this context, if evidence adduced on behalf of accused is
taken into consideration, it is crystal clear that accused is one of the
Trustee of Shibani Trust from which account the payments were
released to the complainant. Evidence of DW-01 and DW-02 confirms
the payment made to the complainant from the account of Shibani
Trust by the accused. The documentary evidence of Account Extract
Exh.43 and entries recorded therein on 12.11.2019 for amount of Rs.9
lakhs, entry dated 14.01.2020 for an amount of Rs.8,49,000/-
corroborates the defence of the accused as to payment made in the
account of East West Travels and Tours. Both witnesses have deposed
on the basis of record of the bank and had no reason to depose false.
13. Except Statement Of Unpaid Bills as on 16.12.2020
produced at Exh.19, complainant has not produced any other evidence
to substantiate his case of an outstanding amount of Rs.9,63,207/-
towards accused against providing Air Tickets or booking room in JW
Marriot in between 09.11.2019 to 29.10.2020. Oral evidence of CW-01
has falsified the case of complainant. Evidence of DW-01 and DW-02
independent witnesses have proved the payment made by the accused
from the account of Shibani Trust of which she is one of the Trustee.
Therefore, the accused has succeeded in rebutting the presumption
under section 139 of the Negotiable Instrument Act.
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14. In fact, complainant’s case on the point of existence of
legal liability is untrustworthy. Complainant has failed to prove
existence of legal liability on the date of presentation of the cheque
Exh.20 beyond all reasonable doubt. As against it evidence adduced on
behalf of accused appears trustworthy to accept her defence of misuse
of security cheque probable on preponderance of probabilities. Proving
existence of legal debt or legally enforceable liability is
Sine Qua Non
for attracting section 138 of the Negotiable Instrument Act and
resultant criminal liability.
15. Merely proving signature of the accused or issuing cheque
by the accused would not be sufficient factor for raising statutory
presumption considering the evidence of CW-01 which raises doubt
upon existence of legal liability. Therefore, with due respect to the ratio
laid down by Hon’ble Supreme Court in the case of
Bir Singh Vs.
Mukesh Kumar in Criminal Appeal No.230-231 of 2019(@SLP
(Criminal) Nos.9334-35 of 2018 decided on 06.02.2019 and
Rangappa
Vs. Mohan in Criminal Appeal No.1020 of 2010 [Arising out of SLP
(Cri.) No.407 of 2006] decided on 07.05.2010, even though a
presumption is to ideally arise on establishing signature on the cheque,
the same would not apply
ipso facto to the case in hand considering
evidence of CW-01. In view of ratio laid down by Hon’ble Apex Court in
the case of
Dattatraya Vs Sharanappa in Criminal Appeal No.3257 of
2024 decided on 07.08.2024, mere fact of establishing signature on
cheque in question of accused not enough to raise statutory
presumption under section 139 in favour of the complainant.
16. As discussed above, the cheque which is admittedly issued
towards security of the transaction do not represents the existence of
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legal debt or liability. Therefore, complainant would not be benefited
by the presumptions under section 118(a) or 139 of the Negotiable
Instrument Act. There can not be said to be existence of legal debt or
legally enforceable liability on the date of presentation of the cheque by
the complainant considering negative balance mentioned in Statement
Exh.19 produced on record. The cheque in such contingency would not
represent the legal debt. Hence, I answer point No.1 in the negative.
AS TO POINT NO.2 :
17. Complainant has filed cheque dishonor memo dated at
Exh.21. It bears official mark denoting reason for dishonor of cheque
for ‘Payment Stopped by Drawer’. In view of section 146 of the
Negotiable Instrument Act, I answer the point No.2 in the affirmative.
AS TO POINT NO.3 :
18. Complainant has produced the registered post envelop
through which demand notice was sent to the accused. The envelop
Exh.24 bears postal remark ‘Refused’. The same is as good as deemed
service of demand in writing contemplated under section 138(b) to the
accused. There is no evidence to substantiate statement of the accused
that she had no office address being a housewife. Therefore, the stand
of not receiving demand notice appears untrustworthy.
19. In the case of
K. Bhaskaran Vs. Sankaran Balan, reported
in 1999, Cr.L.J.4606 and
CC Alavi Haji Vs. Palapetty Muhammed and
Anr. reported in 2007(3) Crimes 120(SC) The Hon’ble Apex Court has
elaborately discussed the scope of section 27 of General Clauses Act
and 114 of Indian Evidence Act. It has observed that,
“Section 27 gives
rise to a presumption that service of notice has been effected when it is
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sent to the correct address by Registered Post addressing the drawer of
the cheque.” A legal and valid demand is made as contemplated under
section 138(b) of the Negotiable Instrument Act. Hence, I answer point
No.3 in the affirmative. Hence, I answer point No.3 in the affirmative.
AS TO POINT NOS.4 AND 5 :
20. 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.
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.
21. To sum up for the reasons recorded above, complainant
has failed to prove issuing cheque by the accused to him in discharge of
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any liability which is
Sine Qua Non for attracting criminal liability
under section 138 of the Negotiable Instrument Act. The defence of the
accused that the cheque was given as security against various
transactions appears probable on the preponderance of probabilities. In
absence of proving transaction and existence of legal debt, accused can
not be held guilty merely on the basis of custody of the dishonored
cheque. The statement of unpaid bills Exh.19 is also not of use to draw
an inference of subsisting liability against dishonored cheque. Hence, I
answer point No.4 in the negative.
22. In view of above findings and evidence on record, accused
is entitled to be acquitted of the offence charged against her. Hence, I
pass following order.
ORDER
1. Accused Mrs. Manisha Mukharji, Age : 60 years, Occ. Service,
R/o. Santacruz(W), Mumbai 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) 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 : 14.05.2026. 58th Court, Bandra, Mumbai.
J.O.Code: MH01362
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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 : 14.05.2026.
Transcribed and Typed on : 14.05.2026.
Judgment printed and Signed on : 14.05.2026.
Judgment Uploaded on : 14.05.2026.
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