Final Order 4

Order Details: Copy of Judgment
Pdf Text: MHMM180031582018 Received On : 02.01.2018
Registered on : 09.03.2018
Decided on : 05.05.2026
Duration : 08 Y 04 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.409/SS/2018
JUDGMENT Exh.38
(Delivered on 05th May, 2026)
Prosecution/
Complainant : Mr. Chandrakant Chavan,
Age : 66 years, R/o. Swagam Sing
Chawl, Gaodevi Vakola Pipeline,
Santacruz(E), Mumbai – 400 055.
Represented by : Advocate Mr. Santosh Shinde.
Accused : Mr. Ganesh Baburao Mhaske.
Age : 50 years, Occ. Driver,
R/o. Room No.356, Gaodevi,
Aadarsh Tarun Mandal, Indira
Nagar, Vakola Pipeline, Santacruz(E),
Mumbai – 400 055.
Represented by : Advocate Mr. Milind Gaware.
Part ‘B’
(Para 44(ii) of Chapter VI of Criminal Manual)
Date of Offence : 02-08-2017
Date of filing complaint : 02-01-2018
Date of Registration of Complaint : 09-03-2018
Date of Recording Plea : 26-07-2019
Date of Commencement of evidence : 12-03-2025
Date on which Judgment is Reserved : 05-05-2026
Date of the Judgment : 05-05-2026
Date of sentencing order, if any : 05-05-2026
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Judgment Exh.38
Accused Details
Rank of
the
Accused
Name of
Accused
Date
of
Arrest
Date of
Released
on bail
Offence
charged
with
Final
order
Sen
tenc
e
Period of
detention
undergone
Mr.
Ganesh
Baburao
Mhaske
26.07.
2019
U/sec.
138 of the
N.I.
Act, 1881
Acquit
ted.
- -
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 Chandrakant Chavan Oral 8
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 – 24/CW01 Cheque No.713957 dated 08.08.2017
2. Exhibit – 25/CW01 Cheque Return Memos dated
08.09.2017 and 11.02.2017
3. Exhibit – 26/CW01 Demand Notice dated 14.11.2017
4. Exhibit –27/CW01 Postal Receipt dated 14.11.2017
5. Exhibit – 28/CW01 Acknowledgment Card
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Judgment Exh.38
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 May, 2026)
The accused is tried for an offence punishable under
section 138 of Negotiable Instrument Act, 1881 for dishonor of cheque
allegedly to be issued against repayment of friendly loan.
2. The case of the complainant in nut shell is as follows:
That accused is his friend since last 18 years. Both are
residing in same vicinity. Out of intimacy he advanced Rs.2,95,000/- to
the accused. Accused had promised to return the amount as early as
possible. Later accused handed over subject cheque to repay the
amount. The cheque returned unpaid for the reason ‘Payment Stopped
by the Drawer’ vide dishonor memo dated 09.08.2017. On contacting
accused, he requested to deposit the cheque again for encashment. He
again presented for encashment on 01.11.2017 but again it was
dishonor for the reason ‘Payment Stopped by Drawer’. Therefore,
accused was called upon to make payment by sending statutory
demand notice dated 14.11.2017. Accused received the demand notice
but failed to make payment of the dishonored cheque within statutory
period. Hence, this complaint.
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Judgment Exh.38
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 him 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. The statement of accused under section 313 of Code of
Criminal Procedure was recorded at Exh.34 through his advocate.
Accused has taken defence of no legal liability, cheque not issuing
against any liability etc.
5. Heard advocate Mr. Santosh Shinde for the complainant
and advocate Mr. Milind Gaware 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.713957 dated 08.08.2017
for Rs.2,95,000/- drawn on his bank account
maintained with State Bank of India,
Santacruz(E) 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 14.11.2017,
issued u/sec.138(b) of the Negotiable
Instruments Act, sent by the complainant
making demand of payment of said cheque
: Yes.
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Judgment Exh.38
amount in writing within one month of receipt
of information from the bank regarding
dishonor of cheque?
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. To substantiate averments made in the complaint,
complainant has examined himself as CW-01 at Exh.8 and relied upon
disputed cheque, cheque returned memo, demand notice etc. Accused
has not adduced evidence.
AS TO POINT NO.1:-
8. Accused has challenged the financial status of complainant
and denied receiving alleged amount of Rs.2,95,000/-. In this context,
testimony of CW-01 depicts that he is getting monthly salary of
Rs.16,000/-. His monthly expenses was approximately Rs.7,000/- to
Rs.8,000/- per month. He has admitted the difference of ink of
signature and the writing over the cheque Exh.24. His evidence further
states that his friend Anant Sahale gave him Rs.3 lakhs out of which he
had given Rs.2,95,000/- to the accused. He has also admitted his
signature on the Promissory Note Exh.31.
9. Admittedly, there is no documentary evidence to establish
making payment of alleged friendly loan of Rs.2,95,000/- to the
accused. The document Exh.31 named Promissory Note shows payment
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of only Rs.1 lakh and rest of the amount to other persons. Complainant
has admitted receiving Rs.2,50,000/- from Mangala Rote and Kantabai
Tayde whose names are mentioned in said document of Exh.31. He has
also admitted obtaining two blank signed cheques from the accused as
mentioned in said document.
10. What more is required to rebut the presumption under
section 139 of the Negotiable Instrument Act, more than the above
referred fatal admissions in cross examination of the complainant. It is
crystal clear that complainant has misused the blank signed cheques
obtained from accused at the time of lending only of Rs.1 lakh and
executing Promissory Note Exh.31. Man may speak lie but the
documents never. The document named Promissory Note Exh.31 has
falsified the case of complainant.
11. In fact, complainant has failed to prove giving an amount
of Rs.2,95,000/- to the accused alone to presume existence of legal
liability as to the cheque amount. The liability for an amount given to
his sisters can not be fastened against accused in absence of any
agreement to that effect. When complainant has admitted receiving
Rs.2,50,000/- from Mangala, Kantabai and accused as mentioned in the
document, no legally enforceable liability exists to pay the cheque
amount by the accused. It is crystal clear from the evidence on record
that the cheque in question does not represent for legally enforceable
liability. The blank signed cheque obtained in advance is misused.
Therefore, there is reason to believe the defence of the accused that
subject cheque Exh.24 was not issued against any liability. Hence, I
answer point No.1 in the negative.
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AS TO POINT NO.2 :
12. Accused has not disputed the reason of dishonor of cheque.
Dishonor memo is produced at Exh.25. 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 :
13. Complainant has produced copy of demand notice dated
14.11.2017 sent to the accused by Registered Post at Exh.26. He has
also produced the postal receipt Exh.27 and acknowledgment receipt at
Exh.28. Omnibus statement of not receiving demand notice is of no use
nor the same is supported by evidence of accused.
14. 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
sent to the correct address by Registered Post addressing the drawer of
the cheque.” A legal and valid demand as contemplated under section
138(b) of the Negotiable Instrument Act is made by virtue of demand
notice served upon accused by Registered Post. Hence, I answer point
No.3 in the affirmative.
AS TO POINT NOS.4 AND 5 :
15. Drawer of a cheque is deemed to have committed the
offence of cheque dishonor, if the following ingredients are fulfilled:
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(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.
16. Complainant has failed to prove giving friendly loan of
Rs.2,95,000/- to the complainant alone for presuming legal obligation
of its repayment. Legally enforceable liability does not exists towards
accused. Proving existence of legal liability is
Sine Qua Non for
attracting penal liability under section 138 of the Negotiable
Instrument Act. Accused has successfully rebutted the presumption of
law under section 139 making his defence of misuse of blank signed
cheque obtained at the time of executing document named Promissory
Note Exh.31 probable. Hence, I answer point No.4 in the negative.
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17. In view of above findings and evidence on record accused
is entitled to be acquitted 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)
of the Bhartiya Nagarik Suraksha Sanhita, 2023.
2. Bail bond of accused stands cancelled.
3. Accused to make bail compliance under 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.
(Judgment dictated and pronounced in open Court).
( M. P. Saraf )
Judicial Magistrate(First Class),
Date : 05.05.2026. 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 : 05.05.2026.
Transcribed and Typed on : 05.05.2026.
Judgment printed and Signed on : 05.05.2026.
Judgment Uploaded on : 05.05.2026.
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