Final Order 3

Order Details: Copy of Judgment
Pdf Text: CNR : MHMM180058032018 Received On : 31.03.2018
Registered on : 31.03.2018
Decided on : 29.07.2025
Duration : 07 Y 03 M 28 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.642/SS/2018
JUDGMENT Exh.31
(Delivered on 29th day of July 2025)
Prosecution/
Complainant : Saifuddin Yasin Shaikh
Age : 77 years, Occ. Business,
R/o. Old Masjid, H-Block, Saifuddin Ki Chawl,
Prem Nagar, Jogeshwari(E), Mumbai-400 060.
Represented by : Advocate Sachin Pandey
Accused : Khan Mohammed Adeeb Jamaluddin,
Age : 55 years, Occ. Business.
R/o. Room No.504, A-Wing, Hans Residency
Masrani Lane, Behind Siddhapura Ind V.B.Nagar,
Kurla(W), Mumbai – 400 070 and at 106/3026,
Kannamwar No.2, Vikroli(E), Mumbai-83.
Represented by : Advocate Sunil Sanjay Gharge
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Judgment Exh.31
Part ‘B’
(Para 44(ii) of Chapter VI of Criminal Manual)
Date of Offence : 08-11-2017
Date of filing complaint : 31-03-2018
Date of Registration of Complaint : 31-03-2018
Date of Recording Plea : 18-01-2022
Date of Commencement of evidence : 01-08-2019
Date on which Judgment is Reserved : 29-07-2025
Date of the Judgment : 29-07-2025
Date of sentencing order, if any : 29-07-2025
Accused Details
Rank
of
the
Accu
sed
Name of
Accused
Da
te
of
Arr
est
Date
of
Releas
ed on
bail
Offence
charged
with
Final
order
Sentence Peri
od
of
dete
ntio
n
und
erg
one
1. Khan
Mohammed
Adeeb
Jamaluddin,
- 18.01.
2022
U/s.
138 of
the
N.I.Act,
1881
Convicted to suffer S.I.
for 6 months
and to
pay
compensation
of
Rs.7,00,000/-
to the
complainant
I.D. of
payment of
said
compensation
shall suffer
further S.I. for
6 months.
-
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Judgment Exh.31
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 Saifuddin Yasin Shaikh Oral 18
02 Mustaq Mohd. Yusuf Shaikh Oral 27
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 – 20 and 22/CW01 Cheque bearing
Nos.100003, 100002.
2. Exhibit – 21 and 23/CW01 Cheque Return Memos
dated 11.10.2017
3. Exhibit - 24/CW01 Demand Notice dated
17.10.2017
4. Exhibit – 25/CW01 Reply of accused dated
23.10.2017
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Judgment Exh.31
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 29th July, 2025)
Accused is tried for the offence punishable under section
138 of the Negotiable Instrument Act, 1881 for the reason of dishonor
of cheque issued for repayment of consideration amount paid towards
purchase of flat.
2. Complainant’s case in nut shell is as follows:
That accused is his distant relative doing business of Real
Estate Agent. Complainant was to purchase flat. He shown a flat in
MHADA Building at Vikroli. Towards part payment of consideration
amount complainant gave Rs.3,50,000/- in cash to him. Later he came
to know that the flat is in the name of other person. After repeated
request accused issued subject two cheques for refund of part payment.
Both cheques were dishonored and returned unpaid for the reason
funds insufficient in the account of accused. Accused failed to pay the
amount of dishonored cheques despite receiving statutory notice. On
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the contrary accused neglected to make payment by giving false notice
reply dated 23.10.2017. 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.17 on 18.01.2022 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.
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 06.06.2025 below Exh.01.
5. Heard, advocate Sachin Pandey for the complainant.
Accused and his advocate Sunil Sanjay Gharge absent since last so
many dates.
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 two cheques bearing
No.100002 for Rs.1,50,000/- dated
27.07.2017 and cheque bearing No.
100003 for Rs.2,00,000/- dated
28.07.2017 on Abhyudaya Co-operative
Bank Ltd., Vikhroli(E) branch, Mumbai, in
:
Yes.
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favour of the complainant in discharge of
the legal debt or liability to refund the
amount of part consideration towards
purchase of flat?
2. Whether it is proved that the cheques
were dishonored for the reason ‘Funds
Insufficient’ and returned unpaid to the
complainant?
: Yes.
3. Whether it is proved that the accused has
received demand notice dated 17.10.2017,
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. In order to substantiate the averments made in complaint,
complainant has examined himself at Exh.18 and his son-in-law Mustaq
Mohd. Yusuf Shaikh as CW-02 at Exh.27. Besides oral evidence
complainant has relied upon subject cheques, dishonor memos,
demand notice and notice reply given by the accused. As accused failed
to conduct cross examination despite giving sufficient opportunity,
complainant’s evidence has gone unchallenged. Therefore, only
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question remains for consideration on the point of issuance of cheques
and relevant legally enforceable liability on the date of cheques.
AS TO POINT NO.1:-
8. 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.”
9. 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”.
10. 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
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
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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. ”
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 of law under section 139 of the Act.
12. 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 signature of the accused on his plea Exh.17,
Bail Bond Exh.16 is unequivocally similar and identical to the signature
of accused on disputed cheque Exh.20 and 22. Therefore, there is
reason to believe issuing the cheques voluntarily in discharge of legal
liability to refund the amount of consideration by the accused.
13. Now coming to the point of existence of legal liability on
the date of cheques. Complainant’s evidence depicts existence of legal
liability and issuance of cheques towards such liability. The
presumption under section 139 of the Act will attract in favour of the
complainant in absence of contrary evidence. The accused has failed to
rebut said presumption.
14. 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
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for refund of part payment of consideration made by the complainant
towards purchase of flat. 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 :
15. The complainant has produced two cheque return memos
dated 11.10.2017 produced at Exh.21 and 23 issued by DCB Bank,
Santacruz branch. It shows reason for dishonor of the cheques, ‘Funds
Insufficient’ in the account of accused. 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 :
16. Receipt of demand notice by the accused is not in dispute.
Accused has replied the demand notice vide notice reply dated
23.10.2017 at Exh.25. The accused vide notice reply has taken stand of
issuing subject cheques to his son in law for helping him in business
with condition not to deposit but just to show the supplier of goods for
his goodwill. However, the stand taken by the accused is without proof
and evidence. Therefore, the notice reply can not be accepted as a
Gospel Truth to disbelieve testimony of complainant and his witness.
17. Notice Exh.24 issued to the accused is replica of averments
made in complaint. 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 :
18. 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.
19. 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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20. The act of the accused to dishonor the cheques and neglect
to make payment despite calling upon by the complainant 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.
21. Both parties and their advocates absent.
22. 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 2018 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.
23. 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. Everybody in Mumbai City keeps a dream of his own
shelter/home. The accused has broken the dream of the complainant.
However, considering the relationship in between parties, I pass
following order.
ORDER
1. Accused Khan Mohammed Adeeb Jamaluddin, R/o. Vikroli(E),
Mumbai, is convicted for the offence punishable under section
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138 of the Negotiable Instrument Act, 1881 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.
2. Accused is sentenced to suffer simple imprisonment for 6 (six)
months.
3. Accused shall pay compensation of Rs.7,00,000/-(Rupees Seven
Lakhs only) to the complainant vide section 357(3) of Code of
Criminal Procedure and under section 395(3) of the Bhartiya
Nagarik Suraksha Sanhita, 2023 in default of payment of said
compensation amount shall suffer further simple imprisonment
for 6 (six) months.
4. The bail bonds of accused already stand cancelled and forfeited.
5. 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 him to the jail.
6. 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 : 29.07.2025. 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 : 29.07.2025.
Transcribed and Typed on : 29.07.2025.
Judgment printed and Signed on : 29.07.2025.
Judgment Uploaded on : 29.07.2025.
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