Final Order 6

Order Details: Copy of Judgment
Pdf Text: MHMM180055832018 Received On : 23.03.2018
Registered on : 23.03.2018
Decided on : 12.05.2026
Duration : 08 Y 01 M 19 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.539/SS/2018
JUDGMENT Exh.55
(Delivered on 12th May, 2026)
Prosecution/
Complainant : Mrs. Lata Gopaldas Nasta
Through Power of Attorney
Mr. Sagar Gopaldas Nasta
Age : 52 years, Having address at Shop No.11-D,
Mirchigally, Opp. Jumma Masjid, Mumbai – 02.
Represented by : Advocate Mrs. Rupali Jadhav.
Accused : Mr. Anil T. Kursija
Porprietor of M/s. Sahil Realtor,
Age : 56 years, Occ. Business,
office address at 202, Abhiman 11 Dmani Estate,
Near Teen Hath Naka, Thane (W) – 400 602 and
also at Bakery Lane, Plot No.18, 2nd Floor, Sadhu
Vaswani Nagar, Thane (E) – 400 603.
Represented by : Advocate Mr. Prasad Suresh Rane.
Part ‘B’
(Para 44(ii) of Chapter VI of Criminal Manual)
Date of Offence : 28-02-2018
Date of filing complaint : 23-03-2018
Date of Registration of Complaint : 23-03-2018
Date of Recording Plea : 16-08-2018
Date of Commencement of evidence : 14-12-2021
Date on which Judgment is Reserved : 12-05-2026
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Judgment Exh.55
Date of the Judgment : 12-05-2026
Date of sentencing order, if any : 12-05-2026
Accused Details
Ran
k of
the
Acc
use
d
Name of
Accused
Dat
e of
Arr
est
Date
of
Releas
ed on
bail
Offenc
e
charge
d with
Final
order
Sentence Period
of
detent
ion
under
gone
Anil T.
Kursija
- 16.08
.2018
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.20 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 Sagar Gopaldas Nasta Oral 5
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 – 13/CW01 General Power of Attorney
2. Exhibit – 14/CW01 Agreement
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Judgment Exh.55
3. Exhibit – 15/CW01 Allotment Letter dated 01.12.2014
4. Exhibit – 16/CW01 Letter of Confirmation of Accounts
dated 01.04.2014
5. Exhibit – 17/CW01 Cheque No.377287
6. Exhibit – 18/CW01 Cheque Return Memo
7. Exhibit – 19/CW01 Demand Notice dated 07.02.2018
8. Exhibit – 20
collectively/CW01
Postal Receipts dated 07.02.2018
9. Exhibit – 21
collectively/CW01
Two Returned Envelops alongwith
Acknowledgment Cards
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 cheque
alleged to be issued for liability of payment of consideration amount
paid towards booking of flat.
2. The case of complainant in nut shell is as follows:
That he is Constituted Attorney of his mother who has
booked flat with the accused. He is well aware about the transaction
with the accused. Accused is Proprietor of M/s. Sahil Realtor. Accused
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Judgment Exh.55
was to construct residential building at Ghatkopar. Accused induced her
and other two partners to pay part amount of Rs.25 lakhs towards
booking of the flat. Accordingly, she paid Rs.10 lakhs by cheque to the
accused. Accused entered into an Agreement to Sale and issued
Allotment Letter on 01.12.2014. However, accused failed to make
construction and delivered possession of the flat for more than three
years. Subsequently, accused issued subject cheque in favour of original
complainant to repay her part amount of Rs.10 lakhs. The cheque was
dishonored and returned unpaid with remark ‘Account Blocked’ vide
memo of her banker dated 02.02.2018. Accused was called upon to
make payment of the dishonor cheque by issuing statutory notice dated
07.02.2018. Accused received the demand notice on 12.02.2018 but
neglected to make payment. 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.11 and claimed to be tried. The case was tried as
summons trial.
4. Statement of accused under section 313 of Code of
Criminal Procedure was recorded by his advocate at Exh.50. Accused
has taken defence of false implication and misuse of security cheque.
Accused has also denied the transaction.
5. Heard advocate Mrs. Rupali Jadhav for the complainant
and advocate Mr. Prasad Suresh Rane for the accused. Perused written
notes of arguments and citations filed by both parties.
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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 cheque bearing
No.377287 dated 31.01.2018 for
Rs.10,00,000/- drawn on Union Bank,
Thane(E), in favour of the complainant in
discharge of legally enforceable liability or other
debt?
: Yes.
2. Whether it is proved that cheque was
dishonored for the reason ‘Account Blocked’ ? : Yes.
3. Whether it is proved that the accused has
received demand notice dated 07.02.2018,
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. In order to prove averments made in the complaint,
complainant has examined its Constituted Attorney as CW-01 at Exh.5
by filing evidence affidavit under section 145 of the Act and relied upon
disputed cheque, cheque return memo, demand notice etc. Accused has
not adduced evidence.
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AS TO POINT NO.1:-
8. Considering the defence of the accused as to total denial of
the transaction, first question arose for determination whether there is
Privity of Contract in between parties to presume further act of issuing
subject cheque in favour of complainant?
9. In this context, testimony of PW-01/CW-01 Constituted
Attorney of the complainant states that accused has executed
Agreement at Exh.14 in favour of his mother. Much emphasis is given
by the advocate of accused as to the admission of PW-01 in respect of
absence of signature of his mother on the said Agreement. However,
the admission is not material or fatal to discard the testimony of CW-01
or disbelieve case of complainant.
10. The documentary evidence of Agreement Exh.14 would
prevail than the concocted defence. Agreement Exh.14 even though not
registered and without signature of original complainant, the same
bears signature of the accused. The receipt annexed to the Agreement
executed by the accused is more than sufficient to believe contention of
complainant as to executing Agreement Exh.14 in her favour. The
receipt annexed to the Agreement coupled with Allotment Letter dated
01.12.2014 Exh.15 falsified defence of the accused as to denial of
transaction. The Letter also proved that accused is Proprietor of M/s.
Sahil Realtors of which account the cheque is drawn.
11. In nutshell, Agreement for Sale even though not registered,
the same can be relied upon for the collateral purpose as compulsory
registration not mandatory. Apart executing and registering Agreement
for Sale is legal responsibility cast upon the Promoters, Builder or
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Developer vide section 4 of the Maharashtra Ownership Flats
Act(MOFA) 1963. The Agreement Exh.14 can not be said to be illegal
or invalid for want of signature of the purchaser or its registration.
Therefore, there is reason to believe Privity of Contract in between
parties to presume issuance of subject cheque.
12. Advocate for accused has challenged the testimony of CW-
01 on the ground of no legal authorization to depose and represent the
complainant. First of all the submission do not stand to reason
considering the document of Power of Attorney Exh.13 filed on record.
The Power of Attorney clearly speaks authorizing the complainant to
represent his mother in Court cases. CW-01 being son of original
complainant, no question arises to consider submission of having no
knowledge as to the transaction. Nothing suspicious could be brought
on record to disbelieve his version as to his knowledge in cross
examination. Not remembering the date of handing over cheque is
quite probable considering span of litigation. His testimony appears
absolutely trustworthy and with required legal powers.
13. Admittedly, complainant is holder of the negotiable
instrument within the meaning of Section 8 of the Negotiable
Instrument Act. The defence taken during cross examination as to
money lending transaction etc. appears untrustworthy rather without
necessary credible evidence on the part of the accused. Accused can not
take shelter of a Fiscal Entry as to the interest on loan in Confirmation
of Accounts produced by complainant at Exh.16 for establishing his
stand of money lending transaction. The Confirmation of Account
Exh.16 will not dispense with necessary proof on the part of accused to
prove illegal money lending transaction against law.
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14. Accused has not denied his signature or drawing cheque on
his account. Therefore, presumption under section 118-a and 139 of
the Negotiable Instrument Act would automatically come into play by
operation of law. In fact, the presumption of law though not conclusive,
the same are corroborated by the oral and documentary evidence
adduced by the complainant. The entry dated 04.12.2012 reflected in
the Passbook of Bank Account of original complainant clearly shows
payment of Rs.10 lakhs by cheque to the accused. The receipt annexed
to Agreement Exh.40 coupled with terms and conditions of the
Agreement indicates an obligation on the part of accused to refund the
amount received by him in failure of delivering possession of flat
No.502. The defence of the accused as to issuing cheque towards
security, is nothing but after thought crocodiles tears. Not a single
suggestion is given in that respect to CW-01 in his cross examination.
Complainant has duly proved signature of the accused on disputed
cheque, voluntarily issuing said cheque in favour of complainant by
producing Allotment Letter Exh.15.
15. 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”.
16. 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
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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. ”
17. 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.
18. 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. Existence of legal liability to repay the amount paid
towards booking of flat by the accused is also proved. Therefore, there
is reason to believe issuing the cheque voluntarily in discharge of legal
liability to pay said amount. Merely because another two co-purchasers
have not made complaint would not be ground to discard case of
complainant nor it can be sufficient to held that the liability is not
crystallized considering cheque drawn on her favour. A cheque is not
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mere worthless piece of paper. Even if cheque is presumed to be issued
towards security, once legal obligation is established, the same also
becomes valid instrument for payment of amount of liability. In absence
of any probable and trustworthy defence, there is reason to believe that
the cheque was issued for refund of booking amount. Therefore, I
answer point No.1 in the affirmative.
AS TO POINT NO.2 :
19. Accused has not disputed reason of dishonor of the cheque.
Complainant has produced the dishonor memo dated 02.02.2018 at
Exh.18. Accused in his cross examination has not taken any stand as to
disputing the reason for dishonor of the cheque or had came with a
case of having sufficient balance in his account on the date of
presentation of cheque. The dishonor memo denotes a official mark of
dishonor of cheque. In view of section 146 of the Negotiable
Instrument Act, coupled with evidence of CW-02 and failure of accused
to lead evidence, 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 dated 07.02.2018 by Registered Post on his two
addresses. Postal receipts produced collectively at Exh.20 corresponds
to the Acknowledgment Receipt Exh.21 address to Proprietorship Firm.
No credible or probable stand taken on the point of not receiving notice
during cross examination of complainant.
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
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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 to only remaining amount
which is lesser than cheque amount is made as contemplated under
section 138(b) of the Negotiable Instrument Act. Mere denial of
receiving notice without evidence can not be accepted nor it will
substantiate the defence of the accused. Hence, I answer point No.3 in
the affirmative.
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
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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 through evidence of her
Constituted Attorney and documentary evidence. Complaint is filed
within statutory period after arising cause of action to file complaint.
Subject cheque is drawn on account of Proprietorship firm of which
accused is the sole proprietor. 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.
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 prayed for
minimum sentence. Heard advocate for accused. He submitted that
accused be shown leniency in awarding punishment. Heard advocate
for complainant. She prayed for maximum sentence as per law
considering span of more than eight years litigation and outstanding
amount towards accused.
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
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encourage the defrauders to use cheques as a protracting tool. The
transaction in between parties is commercial transaction. 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
remaining balance amount and not the amount mentioned in cheque,
so as to compensate the complainant. Hence, I pass following order.
ORDER
1. Accused Mr. Anil T. Kursija, Porprietor of M/s. Sahil Realtor, Age
: 56 years, R/o. Thane 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
sentenced to undergo simple imprisonment for 1 (One) year
and to pay fine of Rs.20,00,000/- (Rupees Twenty 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
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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 : 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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