Final Order 7

Order Details: Copy of Judgment
Pdf Text: MHMM180010592020 Received On : 26.02.2020
Registered on : 03.03.2020
Decided on : 03.02.2026
Duration : 05 Y 11 M 08 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.5800431/SS/2020
JUDGMENT Exh.59
(Delivered on 03rd February, 2026)
Prosecution/
Complainant : MRS.ANITA KAN CHOITHRAMANI
Age : 75 years, Occ. Housewife,
R/o. 601, Tulip, ‘A’ Wing, 16th Road, Bandra(W),
Mumbai-400 050.
Represented by : Advocate R. V. Yadav for R.V. & Company.
Accused : 1) Mr. Tarachand B. Chawla
Age : 85 years, Occ. Business,
R/o. 87, Jeevan Niwas, Khan Abdul Gaffar
Khan Road, Worli Seaface, Worli, Mumbai-
400 025.
2) Mrs. Jyoti Tarachand Chawla
(Process not issued)
3) Mr. Vinay Tarachanda Chawla
(Process not issued)
Represented by : Advocate Mrs. Nisha Narayankar
Part ‘B’
(Para 44(ii) of Chapter VI of Criminal Manual)
Date of Offence : 22-01-2020
Date of filing complaint : 26-02-2020
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Judgment Exh.59
Date of Registration of Complaint : 03-03-2020
Date of Recording Plea : 07-03-2022
Date of Commencement of evidence : 08-04-2022
Date on which Judgment is Reserved : 03-02-2026
Date of the Judgment : 03-02-2026
Date of sentencing order, if any : 03-02-2026
Accused Details
Ra
nk
of
the
Acc
use
d
Name of
Accused
Da
te
of
Arr
est
Date
of
Releas
ed on
bail
Offe
nce
char
ged
with
Final
order
Sentence Period
of
detent
ion
under
gone
Mr.
Tarachand
B. Chawla
07.03
.2022
U/
sec.
138
of
the
N.I.
Act,
1881
Conv
icted
Accused is sentenced
to undergo S.I. for 1
year and to pay fine of
Rs.20 lakhs id of
payment of fine to
suffer further S.I. for 6
months. If fine is
paid, the same be
given to the
complainant as
compensation.
-
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 Mrs.Anita Kan Choithramani Oral 12
02 Mr. Rajesh Jethanand Rohira Oral 44
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Judgment Exh.59
03 Mr. Varun Kaikin Oral 47
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 – 15/CW01 Original Bank Passbook
2. Exhibit – 16/CW01 Original Bank Passbook
3. Exhibit –17/CW01 Bill of Exchange
4. Exhibit – 18/CW01 Cheque No. 002882 dated
06.01.2020
5. Exhibit – 19
/CW01
Cheque return memo dated
08.01.2020
6. Exhibit – 20/CW01 Copy of Demand Notice dated
22.01.2020
7. Exhibit – 21 to
23/CW01
Postal receipts
8. Exhibit – 24 to
26/CW01
Registered Post Acknowledgment
receipts
9. Exhibit – 27 to
30/CW01
Courier receipts
10. Exhibit – 31 to
33/CW01
Notice reply dated 29.01.2020
11. Exhibit – 48/CW03 Account Statement
12. Exhibit – 49/CW03 Certificate Annexure 10-A
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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 3rd February, 2026)
The accused is tried for an offence punishable under
section 138 of Negotiable Instrument Act, 1881 for dishonor of cheque
alleged to be issued against repayment of loan of Rs.10 lakhs given
under Bill of Exchange.
2. The case of the complainant in nut shell is as follows:
That accused No.1 was well acquainted with her husband
since his school time. Both were acquainted with finance broker Mr.
Jethanand Rahira. Accused was given loan of Rs.10 lakhs on
02.08.2017 by RTGS payment by the complainant and her husband.
Accused No.1 has executed Bill of Exchange assuring repayment of loan
as an when demanded by the complainant. His son has accepted said
Bill of Exchange. Accused paid interest for some period. Later on
demand of loan amount accused issued subject cheque for repayment.
On depositing said cheque with her banker on 06.01.2020, returned
unpaid vide dishonored memo dated 08.01.2020. She received cheque
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return memo on 09.01.2020. Accused was called upon to make
payment of the dishonored cheque by issuing demand notice dated
22.01.2020 by registered post. Accused replied demand notice on
29.01.2020 and denied making payment. Hence, this complaint.
3. My Ld. Predecessor taken cognizance of the complaint and
issued process against accused No.1 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.11 and claimed to be tried. The case was tried as
summons trial.
4. The statement of accused under section 313 of Code of
Criminal Procedure was recorded at Exh.51. Accused has taken defence
of issuing cheque to broker Jethanand Rohra father of CW-02 and
obtaining loan from him. Thereby accused has taken defence of No
Privity of Contract with the complainant or her husband.
5. Heard advocate R. V. Yadav for R.V. and Company for the
complainant and advocate Mrs. Nisha Narayankar for the accused.
6. On hearing both sides and perusing evidence on record
following points arise for my determination to which I have recorded
my findings with reasons thereto as follows-
Sr.No. POINTS FINDINGS
1. Whether the accused has issued disputed
cheque bearing No.002882 dated 06.01.2020
for Rs.10 lakhs drawn on his bank account
maintained with RBL Bank Ltd., Parel branch,
Mumbai in favour of the complainant in
discharge of legally enforceable liability or
other debt?
: Yes.
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2. Whether it is proved that cheque was
dishonored for the reason ‘Funds Insufficient’ ? : Yes.
3. Whether it is proved that the accused has
received demand notice dated 22.01.2020,
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?
: Yes.
5. What order? : Accused is
convicted.
REASONS
7. To substantiate averments made in the complaint,
complainant has examined herself as CW-01 at Exh.12, CW-02 Rajesh
Jethanand Rohra at Exh.44, Branch Manager, SVC Co-Operative Bank,
CW-03 Varun Kaikin at Exh.47 and relied upon Bill of Exchange,
disputed cheque, cheque returned memo, demand notice etc. As
against accused has not adduced evidence.
AS TO POINT NO.1:-
8. On hearing both sides, it apprises that on 02.08.2017
complainant and her husband advanced loan of Rs.10 lakhs to the
accused out of friendship. For some period accused paid quarterly
interest but later on stopped paying interest. Therefore, complainant
called upon him to repay the loan. In discharge of said liability accused
issued subject cheque in favour of complainant. Per contra accused has
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taken defence of total denial. According to him he obtained loan from
finance broker Jethanand Rohra to whom he has given Bill of Exchange
and cheque.
9. In view of main specific defence of No Privity of Contract,
let us see what oral and documentary evidence adduced by the
complainant speaks for.
10. Oral evidence of CW-01 depicts that accused was paid
Rs.10 lakhs by account transfer on 02.08.2017 through mediator
broker Jethanand Rohra. Her evidence is corroborated by documentary
evidence of Bank Passbook produced by complainant at Exh.15 and
Exh.16. Both Passbooks show that husband of complainant had paid
Rs.10 lakhs by RTGS on 02.08.2017 to the accused.
11. CW-01 further deposed that accused has executed Bill of
Exchange assuring repayment of said loan amount on demand. Her oral
evidence is supported by documentary evidence of Bill of Exchange
Exh.17. It bears signature of the accused. Bill of Exchange show that
accused has waived notice of dishonor. Bill of Exchange is accepted by
his son Vinay Tarachand Chawla. Complainant has produced notice
reply dated 29.01.2020 given by accused against demand notice dated
22.01.2020 at Exh.20. Para 2 of notice reply states that accused has
accepted business loan from complainant.
12. In turn accused has not entered into witness box nor
succeeded in obtaining any fatal admission raising doubt upon
truthfulness of version of CW-01 and CW-02. Testimony of CW-01 on
the point of paying Rs.10 lakhs to the accused, issuing subject cheque
in repayment of said loan etc. appears confidence inspiring and
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trustworthy. Complainant’s oral and documentary evidence has
established that there was privity of contract in between complainant
and accused out of which subject cheque came to be issued.
13. Defence of accused that he had obtained loan from broker
Jethanand Rohra and issued Bill of Exchange and subject cheque to him
is without evidence. Accused has not disputed issuing cheque, his
signatures on Bill of Exchange Exh.17 and cheque Exh.18. There is no
foundation for his omnibus statement as to obtaining loan from
Jethanand Rohra. On the contrary, notice reply Exh.33 came to be
issued on behalf of accused falsifies his defence.
14. It is alternatively submitted on behalf of accused that the
transaction was money lending transaction. Loan was paid on interest.
Indeed complainant has admitted receiving quarterly interest for some
period from the accused but denied running business of lending money
on interest which is barred under the provisions of Bombay Money
Lending Act.
15. Giving financial help out of friendship under legal and
valid documents such as Bill of Exchange for an amount more than Rs.3
lakhs can not be said to be illegal to consider submission of advocate
for accused as to illegal debt within the meaning of proviso to section
138 of the Negotiable Instrument Act. Loan Transaction under Bill of
Exchange that is on the basis of negotiable instrument other than
Promissory Note more than Rs.3 lakhs is excluded rather permitted or
can be said to be legal and valid under section 2 (13)(j)&(k) of The
Maharashtra Money Lending (Regulation) Act, 2014 as amended. In
absence of any specific evidence as to an illegal money lending
business, an obscure defence without evidence can not be considered in
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the eyes of law. Therefore, said money transaction can not be said to be
an illegal money lending transaction to consider it as an illegal debt
within the purview of proviso to section 138 of the Negotiable
Instrument Act, 1881.
16. One thing is quite clear from evidence on record that
accused has received Rs.10 lakhs from the complainant’s husband. He
had not produced any evidence showing repayment of said loan
amount. On the contrary, cheque Exh.18 shows that the same is drawn
on account of accused under his signature. Accused has not disputed
his signature on cheque Exh.18. Man may speak lie but the documents
never. Furthermore, legal obligation to repay the amount received from
complainant or her deceased husband survives against the accused.
17. Complainant is holder of negotiable instrument. Legal
liability to repay the amount of Rs.10 lakhs exists against accused.
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 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.”
18. In view of ratio laid down in the case of 'Bir Singh
V/s.Mukesh Kumar' (2019) 4 SCC 197, Hon'ble Supreme Court held
that,
“the presumption u/sec.139 of the Negotiable Instruments Act is
in favour of the complainant. It is the statutory presumption. The
burden of rebuttal is on the accused. If the ingredients are proved, the
Court is bound to draw the presumption in favour of the complainant”.
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19. In the case of Rajesh Jain Vs. Ajay Singh, (2023)10 SCC
148, Hon’ble Apex Court has held that, “
Once the presumption arises
under section 139 of the Negotiable Instrument Act, the court ought to
have proceeded on the premise that cheque was indeed issued in
discharge of a debt or liability. The entire focus would then necessarily
have to shift on the case set up by the accused, since the activation of
the presumption has the effect of shifting evidential burden on the
accused. In such circumstances, the nature of inquiry would then be to
see whether the accused has discharged his onus of rebutting the
presumption. If he fails to do so, the court can straight way proceed to
convict the accused subject to satisfaction of other ingredients of
section 138 of the N.I. Act. However, if the court finds that the
evidential burden placed on the accused has been discharged,
complainant would have been expected to prove the said fact
independently and without taking aid of the presumption.”
20. The ratio laid down by the Hon’ble Apex Court in catena of
Judgments states that once issuance of cheque is proved, the court has
to consider and follow the presumption of law under section 139 of the
Act in favour of complainant unless the same is rebutted by the
accused. Thereby, the burden shifts upon the accused to rebut the
presumption of law under section 139 of the Act.
21. In the case in hand, initial burden to attract the
presumption which favors the complainant that the cheque was issued
in discharge of legal debt or other liability is validly discharged by the
complainant. Accused has not denied his signature on cheque. Defence
of accused as to misuse of his cheque is improbable and untrustworthy.
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22. A cheque is not mere piece of paper. There is no legal term,
“Security” in Negotiable Instrument Act. Even if it is accepted that
cheque is issued in advance towards security, the same becomes legal
and valid instrument on the date of cheque when legal obligation exist
to repay the loan amount. In absence of any probable and trustworthy
defence, there is reason to believe that the cheque was issued for
making repayment of money paid to the accused towards financial
help. Therefore, I answer point No.1 in the affirmative.
AS TO POINT NO.2 :
23. Complainant has produced the cheque return memo dated
08.01.2020 for dishonor of cheque dated 06.01.2020 at Exh.19.
Cheque is dishonored for the reason ‘Funds Insufficient’ in the account
of accused. Reason for dishonor of cheque not in dispute. Accused has
not produced evidence showing that there was sufficient balance in his
account on the date of presentation of cheque by complainant. On the
contrary accused has came with a case of depositing cheque knowing
well suffering from losses in business. In view of presumption under
section 146 of the Negotiable Instrument Act, I answer the point No.2
in the affirmative.
AS TO POINT NO.3 :
24. Accused has replied demand notice Exh.20. In notice reply
he admitted the transaction and receiving loan of Rs.10 lakhs. The
defence of issuing cheque towards security is without evidence. 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.
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AS TO POINT NOS.4 AND 5 :
25. Drawer of a cheque is deemed to have committed the
offence of cheque dishonor, 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.
26. Complainant has satisfactorily proved all the above
ingredients constituting an offence under section 138 of the Negotiable
Instrument Act, beyond all reasonable doubt. Complaint is filed within
statutory period of limitation. It is crystal clear that accused has
committed an offence punishable under section 138 of Negotiable
Instrument Act, 1881 by dishonor of the cheque. Hence, I answer point
No.4 in the affirmative.
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27. The act of the accused to dishonor the cheque and neglect
to make payment despite calling upon by the complainant is an offence
punishable under section 138 of The Negotiable Instrument Act. The
accused is held guilty of the offence punishable under section 138 of
The Negotiable Instrument Act, 1881.
28. Heard accused and his advocate on the point of sentence.
He prayed for showing leniency. Heard complainant and her advocate.
Complainant prayed for return of money with interest and
compensation. She is not willing by heart to send the accused behind
bars by awarding substantive punishment.
29. It seems from record and proceeding that both parties are
well acquainted with each other. The transaction took place out of
friendly relationship though it may be with a view to get some benefit
or profit. Accused is 85 years old. Losses caused in business has
resulted in failure of repayment.
30. Main object of the Act is to raise faith in the transactions
done by way of negotiable instruments. Causing loss in business or age
can not be ground for showing leniency in awarding punishment. If
leniency is shown, it will encourage the defrauders to use cheque as a
protracting tool. Nobody would trust making transaction on the basis of
negotiable instruments. Accused was paid the amount of Rs.10 lakhs in
the year 2017. Considering approximate 9 years utilization of money by
the accused, cost of litigation, complainant is entitled to receive double
of the cheque amount. In order to serve the object of statute, accused
needs to be punished with substantive sentence as well as fine double
the amount of cheque so as to compensate the complainant. Hence, I
pass following order.
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ORDER
1. Accused Tarachand B. Chawla, Age : 85 years, R/o. Worli,
Mumbai-400025, is held guilty vide section 255(2) of The
Criminal Procedure Code and Section 278(2) of the Bhartiya
Nagarik Suraksha Sanhita, 2023 for the offence punishable
under section 138 of the Negotiable Instrument Act, 1881 and
he is sentenced to undergo Simple Imprisonment for 1 (one)
year and to pay fine of Rs.20,00,000/- (Rupees Twenty Lakhs
only) in default of fine shall suffer further Simple Imprisonment
for 06 (six) months.
2. If fine is paid, the same be given to the complainant as
compensation under section 357(1)(b) of Code of Criminal
Procedure and under section 395(1)(b) of the Bhartiya Nagarik
Suraksha Sanhita, 2023.
3. Accused to surrender his bail bond.
4. The copy of Judgment be supplied to accused free of cost.
(Judgment is dictated and pronounced in the open Court).
( M. P. Saraf )
Judicial Magistrate(First Class),
Date : 03.02.2026. 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 : 03.02.2026.
Transcribed and Typed on : 03.02.2026.
Judgment printed and Signed on : 03.02.2026.
Judgment Uploaded on : 03.02.2026.
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