Final Order 2

Order Details: Copy of Judgment
Pdf Text: MHMM180034152022 Received On : 08.04.2022
Registered on : 08.04.2022
Decided on : 20.01.2026
Duration : 03 Y 09 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)
Summary Case No.5800259/SC/2022
JUDGMENT Exh.33
(Delivered on 20th day of January, 2026)
Prosecution/
Complainant : MR. SHYAM SUNDER CHAUDHARY
Through Power of Attorney
Neha S. Choudhary, Age : Adult,
R/o.17, Ajay Apartment Anand Road, Malad
(W), Mumbai-64.
Represented by : Advocate Ms. Neha Choudhary
Accused : 1) M/S NEW HONESTY OPTICIANS
(Process not issued)
2) Mrs. Shubhangi Puranik, Proprietor
M/S NEW HONESTY OPTICIANS,
Age :54 years, Occ.: Business,
R/o. Flat No.B-401, Nikita Apartment No.2. Near
Shimpli Telephone Exchange, Shimpoli Road,
Borivali(W), Mumbai-400 092.
Represented by : Advocate Ms. Anjali Nimbalkar
Part ‘B’
(Para 44(ii) of Chapter VI of Criminal Manual)
Date of Offence : 25-03-2022
Date of filing complaint : 08-04-2022
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Judgment Exh.33
Date of Registration of Complaint : 08-04-2022
Date of Recording Plea : 21-01-2023
Date of Commencement of evidence : 01-04-2023
Date on which Judgment is Reserved : 20-01-2026
Date of the Judgment : 20-01-2026
Date of sentencing order, if any : 20-01-2026
Accused Details
Ra
nk
of
the
Acc
use
d
Name of
Accused
Dat
e of
Arre
st
Date
of
Releas
ed on
bail
Offenc
e
charge
d with
Final
order
Sentence Period
of
detenti
on
under
gone
Mrs.
Shubhangi
Puranik
- 21.01
.2023
U/s.
138
r/w.
141 of
the
N.I.
Act,
1881
Convict
ed
S.I.for 1 month
and to pay fine
of Rs.1,30,000/-
I.d. of payment
of fine accused
to suffer further
S.I. of 8 days. 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 NEHA SHYAM SUNDER
CHAUDHARY
Oral 15
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Judgment Exh.33
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 – 17/CW01 Cheque No.001237
2. Exhibit – 18/CW01 Cheque Return Memo
3. Exhibit – 19/CW01 Copy of Demand Notice
dated 03.03.2022
4. Exhibit – 20 and 21/CW01 Postal A.D.Cards
5. Exhibit – 22 and 24/CW01 Postal Receipt
6. Exhibit – 23 and 25/CW01 Postal Track Consignment
Report
7. Exhibit – 26/CW01 Bill of Exchange
8. Exhibit – 27/CW01 Verified copy of Power of
Attorney
B) Defence -
Sr. No. Exhibit Number Description
1. Exhibit - /DW01 -
C) Court Exhibits -
Sr. No. Exhibit Number Description
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Judgment Exh.33
1. Exhibit - /CW01 -
D) Material Object -
Sr. No. Material Object Number Description
1. - -
JUDGMENT
(Delivered on this 20th January, 2026)
Accused is tried for the offence punishable under section
138 of the Negotiable Instrument Act, 1881, for dishonor of cheque
alleged to be issued for repayment of loan.
2. Complainant’s case in nut shell is as follows:
That accused was in need of finance for business.
Accordingly, complainant advanced Rs.1,50,000/- vide IMPS to the
accused. Accused repaid Rs.85,000/- and kept on postponing
repayment of Rs.65,000/-. Lastly, accused issued subject cheque in
discharge of legal liability to pay remaining amount of Rs.65,000/-.
Said cheque was dishonored and returned unpaid for the reasons
‘Funds Insufficient’ Accused was issued demand notice dated
03.03.2022 calling upon him to make payment. Accused duly served
with the demand notice on 10.03.2022 but failed to make payment.
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.14 on 21.01.2023 and claimed to be tried. The
case was tried as summons trial.
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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
on 28.06.2023. 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 25.09.2024 below
application Exh.31. Today also accused and advocate absent.
5. Heard, advocate Ms. Neha Choudhary for the complainant.
Perused written notes of arguments Exh.32 filed on 01.04.2025.
Accused and her advocate Mrs. Anjali Anil Nimbalkar failed to exercise
right of advancing final arguments.
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.001237
for Rs.65,000/- dated 14.02.2022 on the
account of accused maintained with HDFC
Bank, Link Road Branch, Mumbai in favour
of the complainant in discharge of the legal
debt or liability ?
: Yes.
2. Whether it is proved that the cheque was
dishonored for the reason ‘Funds
Insufficient’ and returned unpaid to the
complainant?
: Yes.
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Judgment Exh.33
3. Whether it is proved that the accused has
received demand notice dated 03.03.2022,
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. Complainant has examined his Power of Attorney CW-01 at
Exh.15 whose evidence has gone unchallenged on behalf of the
accused. Besides oral evidence complainant has relied upon cheque
Exh.17, cheque return memo Exh.18, demand notice Exh.19 etc.
8. Accused was given more than sufficient opportunity to
exercise right of putting defence. However, record speaks for the
negligent and dilatory approach on the part of the accused. Therefore,
in view of no defence on the part of the accused, only question remains
for consideration whether accused has issued subject cheque in
discharge of legal liability to make the repayment of loan amount of
Rs.65,000/- to the complainant.
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Judgment Exh.33
AS TO POINT NO.1:-
9. Complainant’s oral evidence is replica of the averments
made in the complaint. It is corroborated by the documentary evidence
of cheque Exh.17, copy of demand notice Exh.19 and postal A.D. Cards
Exh.20 and 21. It further unfolds that accused issued subject cheque
Exh.17 for repayment of remaining loan amount. The same was
dishonored for the reason of ‘Funds Insufficient’ by the accused on
18.02.2022.
10. Section 139 of Negotiable Instrument Act, 1988 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.”
11. 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”.
12. In the case of Rajesh Jain Vs. Ajay Singh, (2023)10 SCC
148, the 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
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Judgment Exh.33
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. ”
13. 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. In the case in hand, the 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. The accused has failed to rebut said presumption.
14. The legal obligation to pay outstanding amount of loan
exists on accused. Bill of Exchange produced at Exh.26 clearly speaks
for advancing loan of Rs.1,50,000/-. Had it not been so, accused would
not have issued subject cheque. A cheque is not mere piece of paper.
Accused has not came with a case of repayment of loan or any other
believable defence. In absence of any defence, there is reason to believe
that the cheque was issued for repayment of loan. In view of
presumption under section 139 of Negotiable Instrument Act, coupled
with proof of existence of legal liability towards accused, I answer point
No.1 in the affirmative.
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AS TO POINT NO.2 :
15. The complainant has produced cheque return memo
produced at Exh.18. It shows reason for dishonor of the cheque, ‘Funds
Insufficient’. The reason of dishonor of cheque is not disputed.
Therefore, I answer the point No.2 in the affirmative.
AS TO POINT NO.3 :
16. Accused has not disputed receiving demand notice by
taking any stand. Complainant has produced Registered Post
Acknowledgment Cards at Exh.20 and 21. A legal and valid demand is
made as contemplated under section 138(b) of the Negotiable
Instrument Act. Section 27 of General Clauses Act suggest presumption
as to service of notice through Registered Post on correct address. In
absence of any contrary evidence on the side of accused in defence, I
answer point No.3 in the affirmative.
AS TO POINT NOS.4 AND 5 :
17. 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
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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.
18. Complainant has satisfactorily proved all the above
ingredients constituting an offence under section 138 r/w.141 of the
Negotiable Instrument Act, beyond all reasonable doubt. Complaint is
filed within statutory period after arising cause of action to file
complaint. Therefore, it is crystal clear that accused has committed an
offence punishable under section 138 r/w.141 of Negotiable Instrument
Act, 1881. Hence, I answer point No.4 in the affirmative.
19. The act of accused No.2 who is Proprietress of accused
No.1 is an offence punishable under section 138 r/w.141 of The
Negotiable Instrument Act. The accused is held guilty of the offence
punishable under section 138 r/w.141 of The Negotiable Instrument
Act, 1881.
20. The complainant has right of speedy trial. The law
mandates to conclude the trial within six months from the
commencement of hearing under section 143(3) of the Negotiable
Instrument Act, 1881. Considering the matter of year 2022 pending on
the file of this Court, the Judgment is delivered in absence of accused
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Judgment Exh.33
taking recourse to section 353(6) of Code of Criminal Procedure and
section 392(6) of Bharatiya Nagarik Suraksha Sanhita, 2023.
21. Main object of the Act is to raise faith in the transactions
done by way of negotiable instruments. The accused has kept the trial
lingering. Showing leniency will pass a wrong message in the society. It
will encourage the defrauders to use the negotiable instruments as a
protracting tool. Nobody would trust making transaction on the basis of
negotiable instruments. Hence, I pass following order.
ORDER
1. Accused Mrs. Shubhangi Puranik, Proprietor M/S NEW
HONESTY OPTICIANS, Age :54 years, R/o.Borivali(W),
Mumbai-400 092, is held guilty vide section 255(2) r/w. 353(6)
of The Criminal Procedure Code and Section 278(2) r/w.392(6)
of the Bhartiya Nagarik Suraksha Sanhita, 2023 for the offence
punishable under section 138 r/w. 141 of the Negotiable
Instrument Act, 1881 and she is sentenced to undergo simple
imprisonment for 01 (One) month and to pay fine of
Rs.1,30,000/- (Rupees One Lakh Thirty Thousand only) in
default of fine shall suffer further S.I. for 08 (Eight) days.
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. Bail Bond of accused stands cancelled as forfeited.
4. Issue warrant for arrest under section 418(2) of Code of
Criminal Procedure and under section 458(2) of the Bhartiya
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Nagarik Suraksha Sanhita, 2023 against accused for the
purpose of forwarding her to the jail.
5. The copy of Judgment be supplied to the accused free of cost as
and when arrested and brought before this Court.
(Judgment is dictated and pronounced in the open Court).
( M. P. Saraf )
Judicial Magistrate(First Class),
Date : 20.01.2026. 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 : 20.01.2026.
Transcribed and Typed on : 20.01.2026.
Judgment printed and Signed on : 20.01.2026.
Judgment Uploaded on : 20.01.2026.
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