Final Order 6

Order Details: Copy of Judgment
Pdf Text: MHMM180059552021 Received On : 30.10.2021
Registered on : 30.10.2021
Decided on : 05.05.2026
Duration : 04 Y 06 M 05 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.5800781/SS/2021
JUDGMENT Exh.53
(Delivered on 05th May, 2026)
Prosecution/
Complainant : Mr. Sajid Sharif Padiyar
Age : 52 years, Occ. Business,
R/o. 28, Blue Flam Apartment, S.V. Road,
Bandra(W), Mumbai-400 050.
Represented by : Advocate Mr. Pradeep B. Juwale
Accused : 1. Mr. Rajkumar R. Yadav
Age : 45 years, Occ. Business,
R/o.Yadav House, Chandiwala Tower
Compound, Opp. Aqsa Masjid Road, Off.
S.V.Road, Jogeshwari(W), Mumbai – 400 102.
2. J. E. Production
Address at Yadav House, Chandiwala Tower
Compound, Opp. Aqsa Masjid Road, Off. S. V.
Road, Jogeshwari (W), Mumbai – 400102.
Represented by : Advocate Mr. P. S.Dubey
Part ‘B’
(Para 44(ii) of Chapter VI of Criminal Manual)
Date of Offence : 07-02-2021
Date of filing complaint : 30-10-2021
Date of Registration of Complaint : 30-10-2021
Date of Recording Plea : 01-10-2022
Date of Commencement of evidence : 18-01-2025
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Judgment Exh.53
Date on which Judgment is Reserved : 05-05-2026
Date of the Judgment : 05-05-2026
Date of sentencing order, if any : 05-05-2026
Accused Details
Rank
of
the
Accu
sed
Name of
Accused
Da
te
of
Arr
est
Date
of
Releas
ed on
bail
Offenc
e
charge
d with
Fina
l
orde
r
Sentence Period
of
detenti
on
underg
one
1. Mr.
Rajkumar
R. Yadav
- 01.10
.2022
U/s.
138
of the
N.I.
Act,
1881
Con
vict
ed
Accused is
sentenced to
undergo S.I. for 1
year and to pay fine
of Rs.10 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 Sajid Sharif Padiyar Oral 16
02 Sayyad Abdul Naim Oral 31
B) Defence Witnesses -
DW NAME Nature of Evidence Exhibits
01 - -
C) Court Witnesses, if any -
CW NAME Nature of Evidence Exhibits
01 - - -
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Judgment Exh.53
List of Prosecution/Defence/Court Exhibits
A) Prosecution/Complainant -
Sr. No. Exhibit Number Description
1. Exhibit – 18/CW01 Original Mutual Understanding
2. Exhibit – 19 and 20/CW01 Cheque No.478626 and Cheque
No.478627
3. Exhibit – 21 and 22/CW01 Two Cheque Return Memos
4. Exhibit – 23/CW01 Demand Notice dated
14.01.2021
5. Exhibit – 24/CW01 Postal Receipt dated 14.01.2021
6. Exhibit – 25/CW01 Postal AD 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 5th May, 2026)
Accused are tried for an offence punishable under section
138 of the Negotiable Instrument Act, 1881, for dishonor of cheques
allegedly to be issued against profit of investment.
2. The case of complainant in nut shell is as follows:
That he was knowing accused from last six to seven year.
Accused has gained faith of complainant. Accused asked him to invest
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in his business on promise to return good profit within a span of seven
to eight months. Accordingly, complainant paid Rs.3,05,000/- on
17.02.2020 and Rs.1,95,000/- on 18.02.2020 to the accused by NEFT.
Accused executed MOU on 19.02.2020. To repay said amount accused
issued complainant subject two cheques dated 23.12.2020 drawn on
account of accused No.2 of which accused No.1 is owner. Both cheques
were returned unpaid with remark ‘Funds Insufficient’ vide dishonor
memo dated 28.12.2020. Accused was called upon to make payment of
dishonored cheques vide legal notice dated 14.01.2021 sent by
Registered Post. The accused received notice on 15.01.2021 but failed
to make payment. Hence, this complaint.
3. My Ld. Predecessor taken cognizance of the complaint and
issued process against accused under section 138 of Negotiable
Instruments Act. On appearance of the accused, particulars of offence
were stated to him in vernacular to which accused pleaded not guilty
vide Plea Exh.15 and claimed to be tried. The case was tried as
summons trial.
4. The statement of accused under section 313 of Code of
Criminal Procedure was recorded at Exh.50 dated 29.10.2025. Accused
has taken defence of issuing cheques only for security and making
repayment of Rs.3 lakhs to the complainant.
5. Heard advocate Mr. Pradeep B. Juwale for the complainant
and advocate Mr. P. S. Dubey for the accused.
6. On hearing both sides following points arise for my
determination to which I have recorded my findings with reasons
thereto as follows-
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Sr.No. POINTS FINDINGS
1. Whether the accused No.1 has issued disputed
cheques bearing No.478626 dated 23.12.2020
for Rs.3,05,000/- and cheque No.478627 dated
23.12.2020 for Rs.1,95,000/- drawn on account
of accused No.2 maintained with Yes Bank Ltd.,
Charni Road (E), 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 have
received demand notice dated 14.01.2021,
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 is
convicted.
REASONS
7. To substantiate averments made in the complaint,
complainant has examined himself as CW-01 at Exh.16 and Mr. Sayyad
Abdul Naim as CW-02 at Exh.31 and relied upon disputed cheques,
cheque returned memos, demand notice etc. Accused has not adduced
any evidence.
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AS TO POINT NO.1:-
8. Evidence of CW-01 states that out of long standing
acquaintance with the accused, he paid total Rs.5,00,000/- in two
installments by Account Payee Transaction to the accused for the
alleged business and with a hope of getting good returns. Oral evidence
of the complainant on the point of making payment to the accused is
corroborated by the documentary evidence of Bank Account Statement
Exh.43. It is evident that pursuance to receiving said amount accused
has executed MOU Exh.18 which indicates promise to pay an amount
of Rs.8,75,000/- within period of nine months. It also discloses issuing
subject cheques as security till the contract is completed and the
amount would be repaid.
9. Advocate for accused vehemently submitted that the
complainant has admitted that accused did not execute signatures on
cheques in his presence. MOU shows cheques given as security in
advance. The same creates doubt as to the truthfulness of the case of
the complainant. Perusal of MOU Exh.18 and cheques Exh.19, 20
clearly indicates that both documents are signed by the accused.
Signatures of the accused on both documents if compared with his
signature on plea Exh.15, it is same and identical to each other to
accept executing MOU Exh.18, issuing cheques Exh.19, 20 by the
accused in favour of the complainant. Therefore, even if the cheques
are not signed in his presence, being holder of the cheques, legally
entitled to receive the amount mentioned therein. The submissions
advanced by advocate for accused appears irrelevant to disbelieve oral
testimony of the complainant. Not signing cheques by the drawer
before payee is immaterial when the transaction is established.
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10. Complainant is holder of negotiable instrument. Legal
liability to repay the amount of Rs.5 lakhs exists against accused.
Section 139 of Negotiable Instrument Act, 1881 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.”
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, 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
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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 of law under section 139 of the Act.
14. In the case in hand, 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. Accused has not denied his signatures on the
cheques in his statement recorded under section 313 of Code of
Criminal Procedure. Defence of accused as to misuse of cheques issued
as security is improbable and untrustworthy considering existence of
legal obligation to repay the money advanced by the complainant.
15. A cheque is not mere piece of paper. There is no legal term,
“Security” in Negotiable Instrument Act. Even if it is accepted that
cheque is issued in advance towards security, the same becomes legal
and valid instrument on existence of legal obligation to repay the
amount on the date of cheque. Accused has neither examined himself
nor succeeded in rebutting the presumption under section 139 during
cross examination of complainant and witnesses. Non Registration of
MOU Exh.18 will not affect or vitiate the case of complainant. A bare
statement that accused did not sign cheques in presence of complainant
is not sufficient to rebut the presumption under section 139 of the Act.
In absence of any probable and trustworthy defence, there is reason to
believe that the cheques were issued for making repayment of money
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paid to the accused towards investment in his business. Therefore, I
answer point No.1 in the affirmative.
AS TO POINT NO.2 :
16. Complainant has produced the cheque return memos at
Exh.21 and 22. Evidence of CW-02 Branch Manager of Bombay
Mercantile Co-operative Bank has proved that both cheques were
dishonored and returned unpaid for the reason ‘Funds Insufficient’ in
the account of drawer of the cheques that is accused. He has no reason
to depose false at the instance of complainant. Accused has not
produced evidence showing that there was sufficient balance in his
account on the date of presentation of cheques by the complainant.
Dishonor memo bears official remark for dishonor of the cheque.
Hence in view of presumption under section 146 of the Act, I answer
the point No.2 in the affirmative.
AS TO POINT NO.3 :
17. Complainant has produced office copy of demand notice
Exh.23 alongwith postal receipt Exh.24 and Acknowledgment Receipt
Exh.25. Evidence of CW-01 states that demand notice was sent by
Registered post to the accused. The acknowledgment receipt Exh.25 is
its proof. The same can not be disbelieved only on account of difference
of signature of receiver. Accused has not disputed correctness of
address mentioned in the notice.
18. 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
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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.” Complainant has duly proved service of statutory notice
to the accused. Therefore, omnibus statement of denial is of no use.
Hence, I answer point No.3 in the affirmative.
AS TO POINT NOS.4 AND 5 :
19. 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.
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20. Complainant has satisfactorily proved all the above
ingredients constituting an offence under section 138 of the Negotiable
Instrument Act, beyond all reasonable doubt. Subject cheques are
drawn on account of accused No.2 under signature of accused No.1 in
discharge of liability. Accused No.1 is Proprietor of accused No.2 which
is not a legal entity. Therefore, it is crystal clear that accused No.1 has
committed an offence punishable under section 138 of Negotiable
Instrument Act, 1881 by dishonor of both cheques. Hence, I answer
point No.4 in the affirmative.
21. Evidence on record shows that complainant had made the
payment of investment of Rs.5 lakhs in the account of accused No.2 of
which bank account accused No.1 has issued subject cheques against
the legally enforceable liability. 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. Accused is held guilty of the offence
punishable under section 138 of The Negotiable Instrument Act, 1881.
22. Heard accused and his advocate on the point of sentence.
He prayed for showing leniency. Heard complainant and his advocate.
He prayed for maximum sentence as per law.
23. It seems from record and proceeding that both parties are
well acquainted with each other. The transaction took place out of
friendly relationship though it may be with a view to get some benefit
or profit.
24. Main object of the Act is to raise faith in the transactions
done by way of negotiable instruments. Causing loss in business can
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not be ground for showing leniency in awarding punishment. Accused
has broken trust of the complainant. If amount of Rs.5 lakhs was kept
in bank, the same would have been doubled as on date. If leniency is
shown, it will encourage the defrauders to use cheque as a protracting
tool. Nobody would trust making transaction on the basis of negotiable
instruments. In order to serve the object of statute, accused needs to be
punished with substantive sentence as well as fine double the amount
of cheque so as to compensate the complainant. Hence, I pass following
order.
ORDER
1. Accused Mr. Rajkumar R. Yadav, Age : 45 years, Proprietor of
J.E. Production, R/o. Jogeshwari(W), Mumbai, is held guilty
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 he is sentenced to undergo Simple
Imprisonment for 1 (one) year and to pay fine of
Rs.10,00,000/- (Rupees Ten Lakhs only) in default of fine shall
suffer further Simple Imprisonment for 06 (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 accused free of cost.
(Judgment is dictated and pronounced in the open Court).
( M. P. Saraf )
Judicial Magistrate(First Class),
Date : 05.05.2026. 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 : 05.05.2026.
Transcribed and Typed on : 05.05.2026.
Judgment printed and Signed on : 05.05.2026.
Judgment Uploaded on : 05.05.2026.
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