Final Order 4

Order Details: Copy of Judgment
Pdf Text: MHMM180059532021 Received On : 26.10.2021
Registered on : 26.10.2021
Decided on : 06.01.2026
Duration : 04 Y 02 M 11 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.5800762/SS/2021
JUDGMENT Exh.33
(Delivered on 6th day of January, 2026)
Prosecution/
Complainant : Santosh Satyadev Phatak
Age : 49 years, Occ. Service,
R/o. Flat No.32, Building No.36, Avenue D.,
Laxmi Housing, Near Agarwal Lifestyle Global
City, Virar (W), Palghar – 401 303.
Represented by : Advocate Mr. Ramchandra S. Rane.
Accused : Dominic Silvestser D’Costa
Age :69 years, Occ.: Service,
R/o. Flat No.23, B-Wing, Floor No.2, Shree Ajay
CHS Ltd., Block Sector, Kharodi, Jan Kalyan
Nagar, Near Ganesh Mandir, Malwani, Malad
(W), Mumbai-400 070.
Represented by : In person.
Part ‘B’
(Para 44(ii) of Chapter VI of Criminal Manual)
Date of Offence : 29-09-2021
Date of filing complaint : 26-10-2021
Date of Registration of Complaint : 26-10-2021
-- 1 of 13 --
… 2 .... Summons Case No.5800762/SS/2021
Judgment Exh.33
Date of Recording Plea : 07-08-2023
Date of Commencement of evidence : 16-02-2024
Date on which Judgment is Reserved : 06-01-2026
Date of the Judgment : 06-01-2026
Date of sentencing order, if any : 06-01-2026
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 Period
of
detenti
on
under
gone
1. Dominic
Silvestser
D’Costa
- 07.08
.2023
U/s.
138 of
the
N.I.
Act,
1881
Convict
ed
S.I.for 1 year and
to pay fine of
Rs.26,44,000 I.d.
of payment of
fine accused to
suffer further S.I.
of 3 months. If
fine is paid, the
same be given to
the complainant
as compensation
-
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 Santosh Satyadev Pathak Oral 14
B) Defence Witnesses -
DW NAME Nature of
Evidence
Exhibits
01 - -
-- 2 of 13 --
… 3 .... Summons Case No.5800762/SS/2021
Judgment Exh.33
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 Certified copy of Leave
and Licence Agreement
dated 02.01.2019
2. Exhibit – 17 and 18/CW01 Two Cheques bearing
No.796067 and 796068
3. Exhibit – 19 and 20/CW01 Two cheques returned
memos
4. Exhibit – 21/CW01 Copy of Demand notice
dated 12.09.2021
5. Exhibit – 22 and 23/CW01 Postal receipt and
acknowledgment Card
6. Exhibit – 24/CW01 Postal Track Consignment
Report
7. Exhibit – 25/CW01 Certificate u/sec.65-B
8. Exhibit – 26/CW01 E-mail reply of accused
dated 23.09.2021
9. Exhibit – 27/CW01 Certificate u/sec.65-B of
reply dated 23.09.2021.
B) Defence -
Sr. No. Exhibit Number Description
1. Exhibit - /DW01 -
-- 3 of 13 --
… 4 .... Summons Case No.5800762/SS/2021
Judgment Exh.33
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 6th January, 2026)
Accused is tried for the offence punishable under section
138 of the Negotiable Instrument Act, 1881, for dishonor of cheque
alleged to be issued to repay the amount of security deposit.
2. Complainant’s case in nut shell is as follows:
That he came in acquaintance of accused in the month of
December 2018 through his friend Chander Sharma. Complainant was
in need of accommodation accused was the owner of the premises
situated at Malvani, Malad (W), Mumbai. A Leave and Licence
Agreement dated 02.01.2019 came to be executed in respect of said
premises for Licence period of six months. Leave and Licence
Agreement was registered before Sub Registrar, Borivali. On execution
of Leave and Licence Agreement complainant deposited Rs.13,22,000/-
with the accused as an interest free refundable deposit. Accused failed
to comply terms of Agreement and never given possession of Licence
premises to him. On continuous persuasion, finally accused issued two
cheques to the complainant on 16.08.2021. Both cheques were
deposited with banker of the complainant on 31.08.2021. Both
cheques were returned unpaid with dishonor memo dated 02.09.2021
for remarks ‘Refer to Drawer’. Statutory demand notice dated
12.09.2021 was sent to the accused. Notice was duly served to accused
-- 4 of 13 --
… 5 .... Summons Case No.5800762/SS/2021
Judgment Exh.33
on 14.09.2021 to which accused filed false evasive reply dated
23.09.2021 and denied the liability. 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.13 on 07.08.2023 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 continuously
remaining absent. He had not opted to exercise the right of cross
examination or giving statement. No cross order came to be passed on
07.03.2025. Accused was provisionally released on PR Bond of
Rs.10,000/-. Therefore, bail bond of the accused was forfeited.
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 03.07.2025 below Exh.01. Today also
accused absent.
5. Heard, advocate Mr. Ramchandra S. Rane for the
complainant. Accused failed to exercise right of advancing final
arguments.
6. Following points arise for my determination to which I
have recorded my findings with reasons thereto as follows-
-- 5 of 13 --
… 6 .... Summons Case No.5800762/SS/2021
Judgment Exh.33
Sr.No. POINTS FINDINGS
1. Whether it is proved that the accused has
drawn subject cheque bearing No.796067 for
Rs.10 lakhs dated 15.08.2021 and cheque
bearing No.796068 for Rs.3,22,000/- lakhs
dated 29.08.2021 both drawn on the account
of accused maintained with State Bank of
India, Jan Kalyan Nagar, Malad(W),Mumbai
branch in favour of the complainant in
discharge of the legal debt or liability ?
: Yes.
2. Whether it is proved that the cheques were
dishonored for the reason ‘Refer to Drawer’
and returned unpaid to the complainant?
: Yes.
3. Whether it is proved that the accused has
received demand notice dated 12.09.2021,
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 cheque?
: 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 is
convicted.
REASONS
7. Complainant has examined himself as CW-01 at Exh.14
whose evidence has gone unchallenged on behalf of the accused.
Besides oral evidence complainant has relied upon Certified copy of
Leave and Licence Agreement Exh.16, two cheques Exh.17 and 18,
demand notice Exh.21 etc.
-- 6 of 13 --
… 7 .... Summons Case No.5800762/SS/2021
Judgment Exh.33
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 cheques in
discharge of legal liability to make the repayment of security deposit to
the complainant.
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 Leave and Licence Agreement Exh.16 which shows payment of heavy
deposit made by the complainant to the accused. Accused has not
denied not handing over possession of Licence Premises to the
complainant as per Agreement. Cheques Exh.17 and 18 are drawn on
account of accused. The same are dishonored for the reason ‘Refer to
Drawer’. Copy of demand notice Exh.21 is duly served upon accused by
Registered Post. Acknowledgment Card correspond to oral evidence of
complainant. Mainly it states that subject cheques are issued for
repayment of said heavy deposit amount paid by complainant to the
accused. Legal obligation exist to repay the amount of deposit. Hence
evidence of complainant appears trustworthy.
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.”
-- 7 of 13 --
… 8 .... Summons Case No.5800762/SS/2021
Judgment Exh.33
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
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
-- 8 of 13 --
… 9 .... Summons Case No.5800762/SS/2021
Judgment Exh.33
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. The legal obligation to pay said amount of deposit exists
on accused. Had it not been so, accused would not have issued subject
cheques drawn on his account. A cheque is not mere piece of paper. In
absence of any defence, there is reason to believe that the cheques were
issued for repayment of deposit amount in failure of handing over
possession of rented premises. 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 cheque return memo
produced at Exh.19 and 20. Both shows reason for dishonor of the
cheque, ‘Referred to Drawer’. The reason of dishonor of cheque is not
disputed. In view of section 146 of the Negotiable Instrument Act, I
answer the point No.2 in the affirmative.
AS TO POINT NO.3 :
16. Accused as not disputed receiving demand notice by taking
any stand. Complainant has produced the Registered Post Receipt
Exh.22 and Acknowledgment card Exh.23. 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.
-- 9 of 13 --
… 10 .... Summons Case No.5800762/SS/2021
Judgment Exh.33
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
(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 within
limitation. 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.
-- 10 of 13 --
… 11 .... Summons Case No.5800762/SS/2021
Judgment Exh.33
19. The act of the accused 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.
20. Complainant prayed for passing legitimate orders. Heard
advocate for complainant who prayed for maximum punishment.
Accused absent. His advocate also absent.
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 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.
22. Main object of the Act is to raise faith in the transactions
done by way of negotiable instruments. The accused has 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 Dominic Silvestser D’Costa, Age :69 years, R/o.
Malwani, Malad (W), Mumbai-400 070, 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
-- 11 of 13 --
… 12 .... Summons Case No.5800762/SS/2021
Judgment Exh.33
the Negotiable Instrument Act, 1881 and he is sentenced to
undergo simple imprisonment for 1 (One) year and to pay fine
of Rs.26,44,000/- (Rupees Twenty Six Lakhs Forty Four
Thousand only) in default of fine shall suffer further S.I. for 03
(Three) 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. Bail Bond of accused stands canceled as forfeited.
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 him 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 : 06.01.2026. 58th Court, Bandra, Mumbai.
J.O.Code: MH01362
-- 12 of 13 --
… 13 .... Summons Case No.5800762/SS/2021
Judgment Exh.33
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 : 06.01.2026.
Transcribed and Typed on : 06.01.2026.
Judgment printed and Signed on : 06.01.2026.
Judgment Uploaded on : 06.01.2026.
-- 13 of 13 --