Final Order 4

Order Details: Copy of Judgment
Pdf Text: CNR :MHMM180041942021 Received On : 20.07.2021
Registered on : 26.07.2021
Decided on : 28.07.2025
Duration : 04 Y 00 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.5800466/SS/2021
JUDGMENT Exh.110
(Delivered on 28th day of July 2025)
Prosecution/
Complainant : M/S. MEHUL FASHION
Through its Authorized representative/Partner
Mr. Mehul Mer
Age : 44 years, Occ. Business,
having its office at 32, Ground Floor, Ashish
Industrial Estate, Gokhale Road, Dadar (W),
Mumbai-400 028.
Represented by : Advocate Hasan Mirchandani
Accused : 1) M/S JAHANPANAH CLOTHING PVT LTD
having its address at 8-2-616/b/6/1, Ever Green
House, 2nd Floor, Road No.#11, Hyderabad,
Andhra Pradesh – 500 034.
2) Mr. Mohammed Ishaq Bukhari, Director,
Age : 44 years, Occ. Business.
having its address at 8-2-616/b/6/1, Ever Green
House, 2nd Floor, Road No.#11, Hyderabad,
Andhra Pradesh – 500 034.
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Judgment Exh.110
3) Mr. Mohammed Ibraheem Bukhari, Director,
Age : 42 years, Occ. Business.
having its address at 8-2-616/b/6/1, Ever Green
House, 2nd Floor, Road No.#11, Hyderabad,
Andhra Pradesh – 500 034.
Represented by : Advocate Shushil Pande
Part ‘B’
(Para 44(ii) of Chapter VI of Criminal Manual)
Date of Offence : 16-07-2021
Date of filing complaint : 20-07-2021
Date of Registration of Complaint : 26-07-2021
Date of Recording Plea : 17-12-2021
Date of Commencement of evidence : 29-06-2022
Date on which Judgment is Reserved : 28-07-2025
Date of the Judgment : 28-07-2025
Date of sentencing order, if any : 28-07-2025
Accused Details
Rank
of
the
Accu
sed
Name of
Accused
Dat
e of
Arr
est
Date
of
Releas
ed on
bail
Offence
charged
with
Final order Sentence Period
of
detent
ion
under
gone
1. M/S
JAHANPAN
AH
CLOTHING
PVT LTD
- - U/s. 138
of the
N.I.Act,
1881
Convicted
2. Mohammed
Ishaq
Bukhari,
- 17.12.
2021
U/s. 138
of the
N.I.Act,
Convicted S.I. for 1
year and
to pay fine
-
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Judgment Exh.110
1881 of
Rs.17,14,6
04/-
Jointly
and
Severally
I.d. of
payment
of fine to
suffer
further S.I.
for 1
month.
3. Mohammed
Ibraheem
Bukhari,
25.06.
2023
U/s. 138
of the
N.I.Act,
1881
Convicted S.I. for 1
year and
to pay fine
of
Rs.17,14,6
04/-
Jointly
and
Severally
I.d. of
payment
of fine to
suffer
further S.I.
for 1
month.
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. Mehul Rajnikant Mer Oral 13
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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 – 16/CW01 Copy of Deed of
Partnership dated
11.01.2012
2. Exhibit – 17/CW01 Copy of Supplementary
Deed of Partnership dated
08.07.2014
3. Exhibit – 18/CW01 Letter of Authority dated
13.07.2021
4. Exhibit – 19 to 58/CW01 Copy of Invoices and
Delivery Challans/Lorry
receipts
5. Exhibit – 59/CW01 Bank Statement of the
complainant
6. Exhibit – 60 to 62/CW01 E-mail Communication
with certificate
u/sec.65(B) of Indian
Evidence Act.
7. Exhibit – 63 to 70/CW01 Cheque bearing
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Nos.311842, 311843,
311844,311845,311846,
311847,311848,311849
8. Exhibit – 71 to 78/CW01 Cheque Return Memos
dated 04.06.2021
9. Exhibit - 79/CW01 Demand Notice dated
23.06.2021
10. Exhibit – 80 to 82 and
23/CW01
Postal receipts
11. Exhibit – 83 to 85/CW01 Post Track Consignment
Reports
12. Exhibit – 86/CW01 Reply of accused
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 28th July, 2025)
Accused are tried for the offence punishable under section
138 of the Negotiable Instrument Act, 1881.
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2. Complainant’s case in nut shell is as follows:
That complainant is manufacturer and supplier of designer
of Indo-Western Garments. The same is partnership firm and
complainant is authorized its one of the partner to present the
complaint. Accused No.2 and 3 are the Managing and Executive
Director of accused No.1 company. They are managing day to day
affairs of accused No.1 company. Accused No.2 and 3 shown interest in
purchasing Indo-Western Garments from the complainant and placed
purchase orders. Accused failed to pay an amount of Rs.8,62,498/- out
of total outstanding amount of Rs.10,56,506/- towards the goods
supplied to them. In discharge of said liability accused issued subject
cheques to the complainant. On depositing said cheques returned
unpaid with remark ‘payment stopped by drawer’ on 04.06.2021. A
demand notice dated 23.06.2021 was sent to the accused on
28.06.2021. Despite receiving notice accused had not made payment.
However, accused No.1 replied the notice vide notice reply dated
07.07.2021. 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.11 on 17.12.2021 and claimed to be tried. The
case was tried as summons trial.
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 remaining absent.
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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 19.03.2025 below Exh.01
r/w. application Exh.98.
5. Heard, advocate Hasan Mirchandani for the complainant.
Accused are absent. Heard advocate Shushil Pande. Exemption
application for accused rejected.
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 eight cheques bearing
No.311842 for Rs.1,00,000/- dated
12.04.2021, cheque bearing No.311843 for
Rs.1,00,000/- dated 17.04.2021, cheques
bearing No.311844 for Rs.1,10,000/-
dated 23.04.2021, cheques bearing
No.311845 for Rs.1,10,000/- dated
30.04.2021, cheques bearing No.311846
for Rs.1,10,000/- dated 12.05.2021,
cheques bearing No.311847 for
Rs.1,10,000/- dated 17.05.2021, cheques
bearing No.311848 for Rs.1,10,000/-
dated 23.05.2021, cheques bearing
No.311849 for Rs.1,07,302/- dated
30.05.2021 on Axis Bank Ltd. Hyderabad
Branch, in favour of the complainant in
discharge of the legal debt or liability to
pay the outstanding amount for the
garments supplied to the accused by the
complainant?
: Yes.
2. Whether it is proved that the cheques
were dishonored for the reason ‘Payment
Stopped By Drawer’ and returned unpaid
to the complainant?
: Yes.
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3. Whether it is proved that the accused has
received demand notice dated 23.06.2021,
issued u/sec.138(b) of the Negotiable
Instruments Act sent by the complainant
making demand of payment of said
cheques amount in writing within one
month of receipt of information from the
bank regarding dishonor of cheques?
: Yes.
4. Whether it is proved that despite service of
demand notice, the accused failed to pay
the cheques 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 its partner at Exh.13 whose
evidence has gone unchallenged on behalf of the accused. Besides oral
evidence complainant has relied upon various Invoices and Lorry
Receipts to establish supply of alleged garments to the accused.
Accused were given more than sufficient opportunity to exercise their
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 have issued subject cheques in
discharge of their legal liability to make the payment of outstanding
amount towards the garments supplied to them time to time.
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AS TO POINT NO.1:-
8. Complainant’s oral evidence is replica of the averments
made in the complaint. It is corroborated by the documentary evidence
of Tax Invoices produced at Exh.19 to 57 alongwith Lorry Receipts.
Complainant has produced various dishonor memos dated 04.02.2021
which shows reason for dishonor, ‘Payment stopped by Drawer’.
Accused was issued statutory demand notice Exh.79 by Registered Post.
The Postal Track Consignment Report shows that accused have received
said notice. The accused has replied the demand notice vide notice
reply Exh.86 dated 07.07.2021. In paragraph number 4 of Notice reply
accused have admitted issuing subject cheques and outstanding
liability. However to justify the notice reply, accused has not stepped
into witness box nor cross examined complainant despite giving more
than sufficient opportunity.
9. 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.”
10. 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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11. 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 cheques were
issued in discharge of legal debt or other liability is validly discharged
by the complainant. The accused have failed to rebut said presumption.
12. The legal obligation to pay said outstanding amount
remains on accused. A cheque is not mere piece of paper. In absence of
any defence, there is reason to believe that those cheques were issued
for making payment to the complainant towards purchase of garments.
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.
AS TO POINT NO.2 :
13. The complainant has produced eight cheque return memos
dated 04.06.2021 produced at Exh.71 to 78. It shows reason for
dishonor of the cheques, ‘Payment stopped by Drawer’. The reason of
dishonor of cheques is not disputed. Therefore, 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 :
14. Receipt of demand notice by the accused is not in dispute.
Accused have replied the demand notice vide notice reply Exh.86. As
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stated above issuance of cheques and outstanding liability is admitted
by the accused. The financial capacity or incapability can not be the
ground for refuting legal liability. The reason for making stop payment
of the cheques is also not absolve the accused from legal liability. 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.
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:
(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 holder of the cheque fails to make the payment of the
‘said amount of money’ within fifteen days from the receipt of
the notice.
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16. 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.
17. The act of the accused No.2 and 3 as the persons in charge
of the day to day affairs of accused No.1 and being solely responsible
persons for the business of accused No.1, the same is an offence
punishable under section 138 of The Negotiable Instrument Act.
Therefore, the accused are liable for punishment. The accused are held
guilty of the offence punishable under section 138 of The Negotiable
Instrument Act, 1881.
18. Heard advocate for complainant. He prayed for awarding
maximum punishment on the ground of conviction order came to be
passed against accused in 7th Court, at Dadar. Accused and their
advocate absent.
19. Record shows that accused have kept the matter lingering.
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 2021 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.
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20. The main object of the Act is to raise faith in the
transactions done by way of negotiable instruments. The accused have
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 1) M/S. JAHANPANAH CLOTHING PVT. LTD., 2) Mr.
Mohammed Ishaq Bukhari, Director and 3) Mr. Mohammed
Ibraheem Bukhari, Director, having address at Hyderabad,
Andhra Pradesh – 500 034, are hereby convicted 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.
section 141 of the Negotiable Instrument Act, 1881 and accused
No.2 and 3 are sentenced to undergo simple imprisonment for 1
(one) year each and to pay fine of Rs.17,14,604/- (Rupees
Seventeen Lakhs Fourteen Thousand Six Hundred and Four
only) in default of payment of fine to suffer further simple
imprisonment for 1 (One) month each.
2. If fine is paid the complainant shall be given compensation of
Rs.17,14,604/- (Rupees Seventeen Lakhs Fourteen Thousand
Six Hundred and Four only), out of the same under section
357(1)(b) of Code of Criminal Procedure and under section
395(1)(b) of the Bhartiya Nagarik Suraksha Sanhita, 2023.
3. The bail bonds of accused stand cancelled and 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 No.2 and 3 for
the purpose of forwarding them 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 : 28.07.2025. 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 : 28.07.2025.
Transcribed and Typed on : 28.07.2025.
Judgment printed and Signed on : 28.07.2025.
Judgment Uploaded on : 29.07.2025.
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