Final Order 5

Order Details: Order Below EX 1
Pdf Text: MHMM180054792018 Received On : 27.04.2018
Registered on : 27.04.2018
Decided on : 12.05.2026
Duration : 08 Y 00 M 15 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.1005/SS/2018
JUDGMENT Exh.59
(Delivered on 12th May, 2026)
Prosecution/
Complainant : Mrs. Ruchita Rajendra Kulpe
Age : 57 years, Occ. Service,
R/o. Room No.15, Cental Railway Colony, SVP
Nagar, Matunga, Mumbai-400 019.
Represented by : Advocate Mr. Sunil Bhagutre.
Accused : Mr. Vipul Vilas Shidruk
Age : 31 years, Occ. Business,
R/o. B/105, Lata Co-operative Housing Society
Ltd., Opposite Raheja Estate, Kulupwadi, Borivali
(E), Mumbai-400 066.
Represented by : Advocate Mr. Anil K. Gajane.
Part ‘B’
(Para 44(ii) of Chapter VI of Criminal Manual)
Date of Offence : 01-02-2018
Date of filing complaint : 27-04-2018
Date of Registration of Complaint : 27-04-2018
Date of Recording Plea : 07-01-2019
Date of Commencement of evidence : 16-04-2022
Date on which Judgment is Reserved : 12-05-2026
Date of the Judgment : 12-05-2026
Date of sentencing order, if any : 12-05-2026
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Judgment Exh.59
Accused Details
Ran
k of
the
Acc
use
d
Name of
Accused
Da
te
of
Arr
est
Date
of
Releas
ed on
bail
Offen
ce
charg
ed
with
Final
order
Sentence Period
of
detent
ion
under
gone
Vipul
Vilas
Shidruk
- 07.01
.2019
U/s.
138
of
the
N.I.
Act,
1881
Conv
icted
Accused is sentenced
to undergo S.I. for 1
year and to pay fine of
Rs.12 lakhs, I.d. of
payment of fine to
suffer further S.I. for 6
months.
-
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 Ruchita Rajendra Kulpe Oral 06
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 – 14/CW01 Receipt dated 06.06.2015
2. Exhibit – 15/CW01 Certified Copy of Agreement
3. Exhibit – 16/CW01 Receipt dated 10.11.2015
4. Exhibit – 17/CW01 Undated Original Recept
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Judgment Exh.59
5. Exhibit – 18 to 21/CW01 Original Allotment letter with plan
and amenities dated 13.11.2015
6. Exhibit – 27, 28/CW01 Postal Receipts dated 22.08.2019
7. Exhibit – 22 to 25/CW01 Cheque No.056640, Cheque
No.056641, Cheque No.056642,
Cheque No.056643,
8. Exhibit – 26 to 28/CW01 Passbooks of complainant’s bank
account
9. Exhibit – 29 and
30/CW01
Disputed two cheques No.103175
and cheque No.103176
10. Exhibit – 31 and
32/CW01
Two Cheque return memos dated
18.12.2017
11. Exhibit – 33/CW01 Demand Notice dated 15.01.2018
12. Exhibit – 34/CW01 Postal Receipt dated 16.01.2018
13. Exhibit – 35/CW01 Postal Acknowledgment Card
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 12th May, 2026)
Accused is tried for an offence punishable under section
138 of the Negotiable Instrument Act, 1881, for dishonor of cheques
allegedly to be issued for repayment of consideration amount on failure
of providing flat.
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2. The case of complainant in nut shell is as follows:
That she was intending to purchase flat in Mumbai
Suburban area. In the month of May 2015 she approached to the
accused who represented her as Builder and Real Estate Developer. On
visiting his office and site of building named Vikramaditya situated at
Borivali (E), Mumbai, she agreed to purchase the flat. Accordingly, she
paid total amount of Rs.23 lakhs to the accused by cheque, RTGS
payment and mainly selling her flat at Palghar. In the month of January
she requested the accused to execute an Agreement for Sale of said flat
at 5th Floor of the Building. However, accused avoided to execute
Agreement. In May, 2016 when she visited the Building site and made
inquiry with the residents, she revealed that accused is not owner of
the said building. On revealing cheating, accused issued four cheques
on 10.10.2016 totaling to sum of Rs.22,32,500/-. All cheques were
dishonored. Again accused issued subject two cheques worth Rs.9 lakhs
each on 17.09.2017. Both cheques were dishonored and returned
unpaid vide memo dated 18.12.2017 for the reason ‘Insufficient Funds’.
Accused was called upon to make payment of the dishonored cheques
by sending demand notice dated 15.01.2018 by Registered Post.
Accused received said notice on 17.01.2018 but failed to make
payment within statutory period. Hence, this complaint.
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.12 and claimed to be tried. The case was tried as
summons trial.
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4. Statement of accused under section 313 of Code of
Criminal Procedure was recorded at Exh.50. Accused has taken defence
of no liability against disputed cheques. Giving cheques towards
security as complainant has invested money and made payment around
Rs.13 lakhs only. Mainly accused has taken defence that the cheques do
not bear his signatures or drawn on his account.
5. Heard advocate Mr. Sunil Bhagutre for the complainant
and advocate Mr. Anil K. Gajane for the accused. Perused written notes
of arguments.
6. On hearing both sides 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 two cheques
bearing No.103175 and cheque No.103176
both dated 18.09.2017 for Rs.9,00,000/-
each drawn on NKGSB Bank, Borivali(E)
branch, Mumbai, in favour of the
complainant in discharge of legally
enforceable liability or other debt?
: Yes.
2. Whether it is proved that cheques were
dishonored for the reason ‘Funds
Insufficient’ ? : Yes.
3. Whether it is proved that the accused has
received demand notice dated 15.01.2018,
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.
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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 is
convicted.
REASONS
7. In order to prove averments made in the complaint,
complainant has examined herself as PW-01/CW-01 at Exh.6 and relied
upon disputed cheques, demand notice etc. Accused has not adduced
evidence.
AS TO POINT NO.1:-
8. Complainant has came with a case of making total
payment of Rs.23 lakhs to the accused against purchase of flat No.504.
According to her she was cheated by the accused and on his failure to
deliver possession, accused issued subject two cheques for repayment
of said amount. Per contra, accused has came with a defence of making
only payment of Rs.13 lakhs and issuing subject cheques towards
security only.
9. In this context, testimony of complainant depicts that she
had paid said amount by way of RTGS payment to the accused. Her
testimony was tried to be twisted by taking defence of total denial of
receiving payment as well as questioning proof of documents in respect
of said payment.
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10. However, her oral evidence appears trustworthy
considering the suggestions given to her in cross examination
indicating payment made by her to the accused. She was given
suggestion that she had paid Rs.20 lakhs in cash to the accused which
she has categorically denied. Further suggestion and admission that out
of Rs.18 lakhs she had received Rs.13 lakhs makes her testimony
trustworthy on the point of payment of said sum of Rs.23 lakhs to the
accused. Furthermore, the document of receipts Exh.16, 17
corroborates her oral evidence and had proved payment of Rs.22 lakhs.
Receipt Exh.14 dated 06.06.2015 speaks for additional payment of Rs.5
lakhs at the time of booking flat. Total sum of Rs.27 lakhs appears to be
paid by the accused against purchase of flat No.504 in the Vikramaditya
Building situated at Borivali. Allotment letter dated 13.11.2015 placed
at Exh.18 bears signature of the accused. All these documentary
evidence coupled with cheques corroborated her version.
11. Two self contrary stands on account of payment made by
the complainant to the accused has falsified the defence of the accused.
The first defence of total denial of transaction, not receiving payment is
falsified by the stand of suggestion as to giving Rs.13 lakhs out of Rs.18
lakhs by the accused to the complainant. Secondly, the stand of accused
that complainant was mere an investor has no footing or base to
believe the same as probable. Accused has not replied the statutory
notice. Non execution of Agreement of Sale itself is an offence and
illegal act on the part of accused taking into consideration section 3 of
the Maharashtra Ownership of Flats Act (MOFA), 1963.
12. To sum up the defence of issuing subject cheques towards
security has falsifies the case of accused as to not signing subject
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cheques or alleged forgery of executing bogus signature. In facts
needless to state that the onus of burden of proof to prove forgery of
the signature in the cheques lies upon accused. Accused has failed to
prove said defence. Subject cheques Exh.29 and 30 clearly shows
signature of accused similar and identical to his signature on his plea
Exh.12, Bail Bond Exh.11 and V.P. Exh.8. Man may speak lie but the
documents never. The cheques in question are drawn on account of
accused maintained with NKGSB bank Ltd., Borivali, Mumbai.
Therefore also, his stand of not his signature, not issuing cheques or
issuing cheques towards security appears absolutely false.
13. Complainant is holder of the cheques drawn on account of
accused. Accused has admitted his signatures and hand writing over
the cheque Exh.29 and 30. Accused was issued demand notice by
Registered Post. The documents on record speaks for receiving demand
notice by the accused.
14. 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”.
15. In the case of Rajesh Jain Vs. Ajay Singh, (2023)10 SCC
148, 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
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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. ”
16. 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 of law under section 139 of the Act.
17. 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. Existence of legal liability to repay of amount of
consideration by the accused is also proved. Therefore, there is reason
to believe issuing the cheques voluntarily in discharge of legal liability
to pay said amount.
18. A cheque is not mere worthless piece of paper. In absence
of any probable and trustworthy defence, there is reason to believe that
the cheques were issued in discharge of legally enforceable liability.
Therefore, I answer point No.1 in the affirmative.
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AS TO POINT NO.2 :
19. Accused has not disputed reason of dishonor of the cheque.
Complainant has produced the dishonor memo dated 18.12.2017 at
Exh.31 and 32. It bears official mark denoting reason for dishonor of
cheque on account of ‘Funds Insufficient’. Accused has not came with a
defence of having sufficient balance in his account on the date of
presentation of cheques. In view of section 146 of the Negotiable
Instrument Act, I answer the point No.2 in the affirmative.
AS TO POINT NO.3 :
20. Evidence on record shows that accused was issued
statutory notice on 15.01.2018 by Registered Post. Postal receipt is
placed at Exh.34. Complainant has filed postal Acknowledgment
Receipt at Exh.35. Mere denial of receiving statutory notice by the
accused is of no use to consider his defence. Service of notice of
demand in writing is duly proved.
21. 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 is made as contemplated under
section 138(b) of the Negotiable Instrument Act. Hence, I answer point
No.3 in the affirmative.
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AS TO POINT NOS.4 AND 5 :
22. 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 drawer of the cheque fails to make the payment of the
‘said amount of money’ within fifteen days from the receipt of
the notice.
23. 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.
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24. The act of the accused to dishonor the cheque and neglect
to make payment despite calling upon by the complainant is an offence
punishable under section 138 of The Negotiable Instrument Act. The
accused is held guilty of the offence punishable under section 138 of
The Negotiable Instrument Act, 1881.
25. Heard accused on the point of sentence. He reiterated that
he has paid Rs.13 lakhs to the complainant. Heard advocate for accused
on the point of quantum of sentence. Heard complainant and her
advocate. Both prayed for awarding maximum sentence.
26. Main object of the Act is to raise faith in the transactions
done by way of negotiable instruments. If leniency is shown, it will
encourage the defrauders to use cheques as a protracting tool.
Evidence on record shows that out of cheque amount of Rs.18 lakhs
complainant admitted receiving Rs.13 lakhs. Therefore, as on date
liability of Rs.6 lakhs only is subsisting liability against the accused. At
the same time, the conduct on the part of accused and element of
cheating compelled me to award substantive sentence for maintaining
deterrence of law. In order to serve the object of statute and do justice,
accused needs to be punished with substantive sentence as well as fine
double the amount of existing liability and not amount mentioned in
the cheques, so as to compensate the complainant. Hence, I pass
following order.
ORDER
1. Accused Mr. Vipul Vilas Shidruk, Age : 31 years, R/o. Borivali
(E), Mumbai-400 066, is convicted vide section 255(2) of The
Criminal Procedure Code and section 278(2) of the Bhartiya
Nagarik Suraksha Sanhita, 2023 for the offence punishable
under section 138 of the Negotiable Instrument Act, 1881 and
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sentenced to undergo simple imprisonment for 1 (One) year
and to pay fine of Rs.12,00,000/- (Rupees Twelve Lakhs only)
in default of payment of fine to suffer further simple
imprisonment for 6 (Six) months.
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. Accused to surrender his bail bond.
4. The copy of Judgment be supplied to the accused free of cost.
(Judgment is dictated and pronounced in the open Court).
( M. P. Saraf )
Judicial Magistrate(First Class),
Date : 12.05.2026. 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 : 12.05.2026.
Transcribed and Typed on : 12.05.2026.
Judgment printed and Signed on : 12.05.2026.
Judgment Uploaded on : 12.05.2026.
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