Final Order 3

Order Details: Copy of Judgment
Pdf Text: MHMM180034532022 Received On : 08.04.2022
Registered on : 08.04.2022
Decided on : 14.10.2025
Duration : 03 Y 06 M 06 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.5800257/SC/2022
(CNR : MHMM180034532022)
JUDGMENT Exh.35
(Delivered on 14th day of October, 2025)
Prosecution/
Complainant : Mr. Sudha H. Chaudhary
Age : Adult, R/o. 2, Shriji Kripa, 5th Road,
Prabhat Colony, Santacruz(E), Mumbai.
Represented by : Advocate Neha Chaudhari
Accused : 1) M/s. New Honesty Opticians
Proprietary Firm. (Process not issued)
2) Mrs. Shubhangi Puranik, Proprietor of
M/s. New Honesty Opticians,
Age : 57 years, R/o.Flat No.B-401, Nikita
Apartment No.2, Near Shimpoli Telephone
Exchange, Shimpoli Road, Borivali(W),
Mumbai-400 092.
Represented by :
Advocate Mr. Shreyas Mithare, Anjali Nimbkar,
Priya Gupta, Parvesh Yadav.
Part ‘B’
(Para 44(ii) of Chapter VI of Criminal Manual)
Date of Offence : 25-03-2022
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Judgment Exh.35
Date of filing complaint : 08-04-2022
Date of Registration of Complaint : 08-04-2022
Date of Recording Plea : 14-10-2022
Date of Commencement of evidence : 13-02-2023
Date on which Judgment is Reserved : 14-10-2025
Date of the Judgment : 14-10-2025
Date of sentencing order, if any : 14-10-2025
Accused Details
Ran
k of
the
Acc
use
d
Name of
Accused
Date
of
Arre
st
Date
of
Releas
ed on
bail
Offenc
e
charge
d with
Final
order
Sentence Perio
d of
dete
ntion
unde
rgon
e
2. Mrs.
Shubhangi
Puranik
- 14.10
.2022
U/s.
138 of
the
N.I.
Act,
1881
Convicted Accused is
sentenced to
undergo S.I. for
1 month and to
pay
compensation of
Rs.65,000/-
alongwith
interest @ 6%
p.a. from the
date of cheque
to the
complainant.
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. Sudha Hariram Chaudhary Oral 17
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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 – 19/CW01 Cheque No.001239
2. Exhibit – 20/CW01 Cheque Return Memo
3. Exhibit – 21/CW01 Copy of Demand Notice
dated 03.03.2022
4. Exhibit – 22 and 23/CW01 Two Postal Receipts
5. Exhibit – 24 and 25/CW01 Postal Acknowledgment
Cards
6. Exhibit – 26 and 27/CW01 Postal Track Consignment
Reports
7. Exhibit – 28/CW01 Original Bill Of Exchange
B) Defence -
Sr. No. Exhibit Number Description
1. Exhibit - /DW01 -
C) Court Exhibits -
Sr. No. Exhibit Number Description
1. Exhibit - /CW01 -
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D) Material Object -
Sr. No. Material Object Number Description
1. - -
JUDGMENT
(Delivered on this 14th October, 2025)
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 she knows the accused through finance broker.
Accused was in need of money for business. She was advanced
Rs.1,50,000/- by the complainant. On 13.10.2019, accused executed
Bill of Exchange in favour of complainant. The accused repaid
Rs.85,000/- to the complainant. Rs.65,000/- was balanced towards
accused. Accused kept postponing balance amount of Rs.65,000/-.
Lastly, she issued subject cheque for repayment of Rs.65,000/-. On
depositing the cheque, returned unpaid for the reason funds
insufficient vide cheque returned memo dated 18.02.2022. Accused
was called upon to make the payment of dishonored cheque vide
demand notice dated 03.03.2022 sent by Registered Post on
04.03.2022. Notice was received by the accused on 10.03.2022.
Accused neglected 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
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guilty vide Plea Exh.15 on 14.10.2022 and claimed to be tried. The
case was tried as summons trial.
4. The accused was given more than sufficient opportunity to
exercise right of cross examination as well as giving explanation to the
incriminating substance found in the evidence of the complainant.
However, accused failed to exercise both rights by continuously
remaining absent. Her advocate also remained absent and had not
opted to exercise the right of cross examination or giving statement on
behalf of the accused in her absence. No cross order came to be passed
on 28.06.2023. Therefore, bail bond of the accused was forfeited vide
order dated 23.04.2025. Thereafter, 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
25.01.2024 below Exh.33.
5. Heard, advocate Neha S. Chaudhari for the complainant.
Accused and her advocate Anjali Nimbkar are absent.
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 accused No.2
has drawn subject cheque bearing
No.001239 for Rs.65,000/- dated
14.02.2022 on the account of accused
maintained with HDFC Bank Ltd. S.V.Road
branch, Mumbai-92 in favour of the
complainant in discharge of the legal debt
or liability to repay the loan amount?
: Yes.
2. Whether it is proved that the cheque was
dishonored for the reason ‘Funds
: Yes.
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Insufficient’ and returned unpaid to the
complainant?
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 held
guilty and
convicted.
REASONS
7. Complainant has examined herself as CW-01 at Exh.17
whose evidence has gone unchallenged on behalf of the accused.
Besides oral evidence complainant has relied upon cheque Exh.19, Bill
of Exchange Exh.28 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 outstanding repayment of loan?
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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 Bill of Exchange Exh.28. It shows that accused has executed Bill of
Exchange for Rs.1,50,000/- in favour of complainant on 13.10.2019
which suggest that accused has received said loan amount from the
complainant. Complainant’s oral evidence unfolds issuing subject
cheque Exh.19 for the repayment of part outstanding amount of
Rs.65,000/- out of loan of Rs.1,50,000/- by the accused. Had it been
not so, accused would not have issued cheque drawn on account of
accused No.1 of which she is Proprietor under her signature. Accused
has not replied the statutory notice or put up any defence.
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
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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. ”
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. A cheque is not mere piece of paper. In absence of any
defence, there is reason to believe that the cheque was issued for
making payment of liability of outstanding amount. Therefore, in view
of presumption under section 139 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 at
Exh.20. It shows reason for dishonor of the cheque, ‘Funds Insufficient’.
The reason of dishonor of cheque is not disputed. Oral evidence on the
point of dishonor of cheque will prevail and corresponds to
documentary evidence of dishonor memo. 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 :
16. Accused has not disputed receipt of demand notice Exh.21.
The evidence on record such as postal receipts Exh.22 and 23,
acknowledgment cards Exh.24 and 25, Postal Track Consignment
Reports Exh.26 clearly shows that accused has received the statutory
notice. 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
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(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.
18. 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 after arising cause of action to file complaint.
Therefore, it is crystal clear that accused has committed an offence
punishable under section 138 of Negotiable Instrument Act, 1881.
Hence, I answer point No.4 in the affirmative.
19. The act of the accused is an offence punishable under
section 138 of The Negotiable Instrument Act. Therefore, the accused
is liable for punishment. The accused is held guilty of the offence
punishable under section 138 of The Negotiable Instrument Act, 1881.
20. Heard advocate for complainant. Accused and her
advocates are absent.
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21. 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
taking recourse to section 353(6) of Code of Criminal Procedure and
section 392(6) of Bharatiya Nagarik Suraksha Sanhita, 2023.
22. The main object of the Act is to raise faith in the
transactions done by way of negotiable instruments. 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. At the same time prime object of the Act is to recover the
money for which cheque is issued. Hence, I pass following order.
ORDER
1. Accused Shubhangi Puranik, Proprietor of M/s. New Honesty
Opticians, Age : 57 years, R/o. Borivali(W), Mumbai, 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 of the Negotiable Instrument Act, 1881 and
she is sentenced to undergo simple imprisonment for 01 (one)
month.
2. Accused shall pay compensation of Rs.65,000/- (Rupees Sixty
Five Thousand only) alongwith interest @ 6% p.a. from the
date of cheque to the complainant under section 357(3) of
Code of Criminal Procedure and under section 395(3) of the
Bhartiya Nagarik Suraksha Sanhita, 2023.
3. Bail Bond of accused stands cancelled as forfeited.
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4. Issue warrant for arrest under section 418(2) of Code of
Criminal Procedure and under section 458(2) of the Bhartiya
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 : 14.10.2025. 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 : 14.10.2025.
Transcribed and Typed on : 14.10.2025.
Judgment printed and Signed on : 14.10.2025.
Judgment Uploaded on : 14.10.2025.
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