Final Order 4

Order Details: Copy of Judgment
Pdf Text: MHMM180012352023 Received on : 22.02.2023
Registered on : 22.02.2023
Decided on : 21.08.2026.
Duration : Y. M. D.
03 - 05 - 30
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:- B.S. Sankpal)
EXHIBIT No. 31
Case No.122/SC/2023
PROSECUTION/
COMPLAINANT
:- Mr. Mukesh Ashok Kahar
Through its power of attorney
Mrs. Sonam Mukesh Kahar
AGE – 45 YEARS OCCU : House Wife
Room no. 3858, Devji Sathe Nagar, Behind
Municipal School, Old Aagra Road, Narpoli,
Chinchavali, Thane 421302
REPRESENTED BY :- Learned Adv. Mr. S. R. Sharma
ACCUSED :- Shailesh Shiv Pujan Tiwari
Age: 36 yers Occupation : Driver
Room no.5, Gupta Chawl No.1, Gaon Road,
Ghatkopar West, Mumbai 400086
REPRESENTED BY :- Learned Adv. Mr. Wasig. M. Sk.
PART 'B'
(Para 44(ii) of Chapter VI of Criminal Manual)
Date of Offence :- 30.01.2023
Date of filing Complaint :- 22.02.2023
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Date of Registration of Complaint :- 22.02.2023
Date of Recording Plea :- 30.04.2024
Date of commencement of evidence :- 12.07.2024
Date on which case reserved for Judgment :- 07.08.2026
Date of the Judgment :- 21.08.2026
Date of the Sentencing Order, if any :- 21.08.2026
Accused Details
Rank of
accused
Name of the
accused
Date of
arrest
Date of release
on bail
Offence
charged with
Whether
acquitted
or
convicted
Sentence
imposed
Period of
Detention
Undergon
e during
trial for
purpose
of Section
428,
Cr.P.C.
1) Mr. Shailesh
Shiv Pujan
Tiwari
---- 30.04.2024 Under
Section 138
of the N.I.
Act, 1881
-----
Two months
simple
imprisonment
and to pay
compensation
of
Rs.2,02,000/-
-----
PART 'C'
(Para 44(iii) of Chapter VI of Criminal Manual)
LIST OF PROSECUTION / DEFENCE / COURT WITNESSES
A. Prosecution/Complainant’s Witnesses:-
RANK
(CW)
EXHIBIT NAME NATURE OF
EVIDENCE
CW-1 Exhibit- 17 Mrs. Sonam Mukesh Kahar Complainant.
B. Defence witnesses, if any :
RANK
(DW)
EXHIBIT NAME NATURE OF
EVIDENCE
Nil
C. Court witnesses , if any :
RANK EXHIBIT NAME NATURE OF
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(CW) EVIDENCE
Nil
LIST OF PROSECUTION / DEFENCE / COURT EXHIBITS
A. Prosecution/Complainant:
Sr. No. Exhibit Number Description
1. Exhibit-19 Original General Power of Attorney
2. Exhibit-20 Original Agreement for settlement
dated 13.01.2022
3. Exhibit-21 Original Cheque
4. Exhibit-22 Original Bank return memo
5. Exhibit-23 Office copy of the notice dated
13.01.2023
6. Exhibit-24 Postal Receipt
7. Exhibit-25 Track Consignment
B. Defence :
Sr. No. Exhibit Number Description
Nil
C. Court Exhibits :
Sr. No. Exhibit Number Description
Nil
D. Material Object:
Sr. No. Exhibit Number Description
Nil
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J U D G M E N T
(Delivered on 21st Day of August 2026)
The accused are tried for the offence punishable under
section 138 of Negotiable Instrument Act, 1881 (in short the 'N.I.
Act').
The case of the complainant in nutshell is as follows:-
02. Sonam Mukesh Kahar is the wife and constituted power
of attorney holder of the complainant. She is conversant with the
transaction between the complainant and the accused. It is the case
of complainant that he is a driver. He is acquainted with the accused
as he is broker of vehicles. The complainant was required tourist car
and he approached to the accused for purchasing the same. The
accused demanded Rs. 2,42,000/- from the complainant. The
complainant paid that amount to the accused by way of cheque and
cash by selling his old car. Rs.50,000/- is repaid by the accused and
remaining amount of Rs.1,92,000/- was outstanding against the
accused.
03. The complainant further averred that after repeated
request the accused admitted his liability and acknowledged the said
amount by executing agreement of settlement on 13.01.2022
wherein the accused had undertaken to repay the said amount. In
order to discharge his liability, he issued a cheque bearing no.003814
of State Bank Of India, Ghatkopar West Branch of Rs.1,50,000/- on
14.10.2022. He assured that a said cheque will be honoured at the
time of the presentation. The complainant on 02.01.2023 deposited
the said cheque for encashment with his banker SVC Co. Operative
Bank Ltd., Matunga Branch, Mumbai. However, the said cheque was
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dishonored and returned with remark “Funds Insufficient”.
Thereafter, the complainant sent a demand notice on 13.01.2023 to
the accused. The said notice is duly served upon the accused on
14.01.2023. The accused neither replied to the said notice nor repaid
the cheque amount to the complainant. Hence this complaint.
04. My Ld. Predecessor has recorded the plea of accused at
Exh.16. The particulars of the offence were read over and explained
to the accused. He pleaded not guilty and claimed to be tried.
05. Record indicates that, the accused has remained absent
on several occasions. Therefore, non-bailable warrants were issued
against him. However, the accused failed to appear. The accused
remained absent for a considerable longer period. Therefore, in view
of the judgment of the Hon’ble High Court of Bombay in Prakash
Chimanlal Sheth V/s. T. Ramalingam Nadar and Others 2022 SCC
OnLine Bom. 10161, the statement of accused under section 313 of
the Code of Criminal Procedure (for short “the Cr.P.C.”) was
dispensed with by my Ld. Predecessor on 30.03.2026.
06. Learned advocate representing the complainant has filed
written notes of arguments at Exh.30. Pondered over the written
notes of arguments. None present on behalf of the accused for final
arguments. Therefore, the matter was kept for judgment without
arguments on behalf of the accused.
07. 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 complainant has complied with
the provisions of section 138 (a) and (b) and
section142 (1) (a) and (b) of the N.I. Act ?
Yes.
2) Whether the subject cheque was drawn by the
accused for the discharge of a legally
enforceable debt or other liability ? Yes.
3) Whether the complainant has established that
the accused dishonoured the subject cheques? Yes.
4) What Order ? Accused is
convicted.
REASONS
08. In order to prove averments made in the complaint,
complainant has examined the Power of Attorney Sonam Kahar as
CW-01 at Exh.17 and relied upon documentary evidence described in
Part-C of this Judgment.
AS TO POINT NO.1:-
09. The subject cheque is dated 14.10.2022. The said cheque
was returned unpaid by the drawee bank on 04.01.2023. Therefore,
it is clear that, the subject cheque was presented for encashment to
the drawee Bank within the validity period. Thus, the complainant
has duly complied with the provisions of section 138 (a) of the N. I.
Act.
10. The complainant gave statutory notice (Exh. 23) dated
13.01.2023 to the accused. The notice Exh.23 coupled with RPAD
booking receipt at Exh.24 go to show that, the notice was dispatched
by RPAD on 13.01.2023. As such, the statutory notice was given
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within the prescribed period. The postal track report produced by the
complainant is at Exh.25. The same is not supported by a certificate
under section 65B of the Indian Evidence Act. As such, there is no
document on record to show that the statutory notice was attempted
to be served upon the accused. It is significant to note that, the
accused has not come forward and disputed the correctness of his
address mentioned in the statutory notice Exh. 23. In short, the
statutory notice was dispatched by RPAD on the correct address of
accused. Thus, in view of the general presumption under section 114
of the Indian Evidence Act and special presumption under section 27
of the General Clauses Act, there is deemed service of notice.
11. Here, reference is necessary to the decision of Three
Judges Bench of the Hon'ble Supreme Court in the case of C. C. Alavi
Haji V/s. Palapetty Muhamad (2007) 14 SCC 750. It was a reference
made by Hon'ble Two Judges Bench pertaining to the question of
service of notice in terms of section 138(b) of the N.I. Act. In para 17,
the Hon'ble Supreme Court has observed thus,
“It is also to be borne in mind that the requirement of
giving notice is a clear departure from the rule of
Criminal Law, where there is no stipulation of giving of a
notice before filing a complaint. Any drawer who claims
that he did not receive the notice sent by post, can,
within 15 days of receipt of summons from the Court in
respect of the complaint under section 138 of the Act,
make payment of the cheque amount and submit to the
Court that he had made payment within 15 days of
receipt of summons (by receiving a copy of complaint
with the summons) and, therefore, the complaint is
liable to be rejected. A person who does not pay within
15 days of receipt of the summons from the Court along
with the copy of the complaint under section 138 of the
Act, cannot obviously contend that there was no proper
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service of notice as required under section 138, by
ignoring statutory presumption to the contrary under
section 27 of the General Clauses Act and section 114 of
the Indian Evidence Act. In our view, any other
interpretation of the proviso would defeat the very object
of the legislation. As observed in Bhaskaran's case
(Supra), if the giving of notice in the context of clause
(b) of the proviso was the same as the receipt of notice a
trickster cheque drawer would get the premium to avoid
receiving the notice by adopting different strategies and
escape from legal consequences of section 138 of the
Act”.
12. The above quoted observations make it clear that, the
requirement under section 138(b) of the N.I. Act is giving of notice
and not its receipt. Moreover, in the present case, the accused has not
deposited the amount due under the subject cheques within 15 days
after service of summons of present case. As such, the complainant
has duly complied with the provisions of section 138 (b) of the N. I.
Act by giving notice to the accused in writing.
13. In the complaint, it is averred that, the notice is duly
served upon the accused on 14.01.2023. The said statements have
been reiterated by the complainant on oath in his evidence affidavit.
The said statements have remained unchallenged. Thus, the
complaint filed is well within the prescribed period of limitation. As
such, the complainant has duly complied with the mandatory
provisions of sections 138 (a) and (b) of the N.I. Act. Hence, point
No. 1 is answered in the affirmative.
AS TO POINT NO.2:-
14. It is the case of complainant that, the complainant was
required tourist car and he approached to the accused for purchasing
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the same. The accused demanded Rs. 2,42,000/- from the
complainant. The complainant paid that amount to the accused by
way of cheque and cash by selling his old car. Rs.50,000/- is repaid
by the accused and remaining amount of Rs.1,92,000/- was
outstanding against the accused. In order to discharge the said
liability, the accused issued the subject cheque.
15. In his affidavit in lieu of examination-in- chief, the
complainant has reiterated the averments made in the complaint. The
accused failed to avail the opportunity of conducting cross-
examination of the complainant despite grant of sufficient time. As
such, the oral evidence of substituted complainant has remained
uncontroverted. Same is the position with the documentary evidence
adduced by the complainant. There is no rebuttal evidence against
the statutory presumptions under section 118(a) and 139 of the N.I.
Act which have arose in favour of the complainant. Thus, the
complainant has sufficiently proved that, the subject cheques were
drawn by the accused in discharge of a legally enforceable liability.
Hence, point No. 2 is answered in the affirmative.
AS TO POINT NO.3:-
16. Section 146 of the N.I. Act provides for a presumption to
the effect that, on production of bank's slip or memo having thereon
the official mark denoting that the cheque has been dishonoured, the
Court shall presume the fact of dishonour such cheque, unless and
until such fact is disproved.
17. In the present case, the complainant has produced
cheque return memo at Exh.22. The said cheque return memo bear
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signature of the bank official and official mark of the SVC Co-
operative Bank. The reason for dishonour is “Funds insufficient”.
Thus, in view of section 146 of the N.I. Act, a presumption of
dishonour would arise in favour of the complainant. The accused has
not adduced rebuttal evidence to prove the contrary. In fact, the
accused has not put forth any defence whatsoever. Thus, it is duly
proved that, the accused has dishonoured the subject cheque. Hence,
point No. 3 is answered in the affirmative.
AS TO POINT NO.4 :-
18. In view of the findings on points Nos. 1 to 3, the accused
is found guilty for the offence punishable under section 138 of the
N.I.Act. The accused and his Ld. Advocate are absent. Record
indicates that, the accused has remained absent on several occasions.
In this backdrop, there is no immediate prospect that, the accused
would remain present in near future. The accused has already
dragged the matter for a period of more than four years. It is evident
that, the accused has deliberately remained absent. Therefore, he
himself has failed to avail the opportunity of being heard on the point
of sentence. Learned Advocate representing the complainant argued
that the accused cheated the complainant. He used his money for
considerable period. The complainant suferred huge financial loss.
Hence, the accused deseves maximum punishment. Thus, he prayed
for two years imprisonment and fine twice of the cheque amount.
19. The accused are found guilty for dishonour of cheque of
Rs.1,50,000/-. The said cheque was issued towards repayment of
money. The complainant had to suffer financial loss due to the
dishonour of the cheques. The accused have dragged the case for a
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period of more than three years. Having regard to the totality of the
facts and circumstances of present case and in order to enhance the
credibility of acceptance of cheques, a substantive sentence of
imprisonment is required to be imposed upon the accused. The
complainant can also be compensated by awarding compensation
under section 357(3) of the Cr.P.C. The principle of awarding
compensation to the complainant is to do reparation for the injury
sustained or likely to be sustained by reason of the offence. The
complainant would be entitled to the amount due upon the
instrument, together with the expenses incurred in presenting it. At
this juncture, useful reference can be made to a decision of the
Hon'ble Apex Court in the case of R.Vijayan Vs. Baby and Anr.
MANU/SC/1245/2011, wherein it has been observed that,
“One other solution is a further amendment to the
provision of Chapter XVII so that in all cases where
there is a conviction, there should be a consequential
levy of fine of an amount sufficient to cover the cheque
amount and interest thereon at a fixed rate of 9% per
annum interest, followed by award of such sum as
compensation from the fine amount. This would lead to
uniformity in decisions, avoid multiplicity of
proceedings (one for enforcing civil liability and
another for enforcing criminal liability) and achieve the
object of Chapter XVII of the Act, which is to increase
the credibility of the instrument.”
20. In view of the observations of the Hon'ble Supreme Court
in the case of R.Vijayan (Supra), the complainant is entitled to get
interest at the rate of 9 % p.a. on the amount of Rs.1,50,000/- from
the date of cheque till today. The said period is of 03 years 10 and
months. The total amount goes to Rs.2,01,750/- (Round off
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Rs.2,02,000/-). With this, I proceed to pass the following Order.
ORDER
1. Accused Shailesh Shiv Pujan Tiwari is convicted for the
offence punishable under section 138 of the Negotiable
Instruments Act, 1881 vide section 255(2) of the Code of
Criminal Procedure.
2. Accused Shailesh Shiv Pujan Tiwari is sentenced to suffer
simple imprisonment for two (02) Months.
3. Accused shall pay compensation of Rs.2,02,000/- (Rupees
Two Lakhs Two Thousand only) to the complainant vide
section 357(3) of the Code of Criminal Procedure within
three (03) months from the date of this judgment. In
default of payment of said compensation amount, the
accused shall suffer simple imprisonment for further two
(02) months.
4. Accused to surrunder to his bail bonds.
5. The accused is absent. Issue arrest warrant against him
vide section 418(2) of the Code of Criminal Procedure.
6. Copy of this judgment be given to the accused free of
Costs.
(The Judgment is dictated and pronounced in open Court).
(B. S. Sankpal)
Judicial Magistrate (First Class),
Date:21.08.2026. 58th Court, Bandra, Mumbai.
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