Final Order 7

Order Details: Copy of Judgment
Pdf Text: MHMM180061302021 Received On : 01.10.2021
Registered on : 04.10.2021
Decided on : 04.05.2026
Duration : 04 Y 07 M 03 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.5800642/SS/2021
JUDGMENT Exh.48
(Delivered on 4th day of May, 2026)
Prosecution/
Complainant
: Pratap Pundalik Kamath
Age : 53 years, Occ. Business,
R/o. 1A – 103, NG Suncity Phase – 2,
Thakur Village, Last Bus
Stop of 287, Kandivali(E),
Mumbai – 400 101.
Represented by : Advocate Mr. Digambar V. Pawar.
Accused : Bhavanishankar Nilkanth Wagle
Proprietor of Desi Bites,
Age : 43 years, Occ. Business,
R/o.17/B, Saraswati Baug, Jogeshwari(E),
Mumbai – 400 060 and 3/C, Saraswati Baug,
Jogeshwari(E), Mumbai – 400 060.
Represented by : Advocate Mr. Anand Shitap.
Part ‘B’
(Para 44(ii) of Chapter VI of Criminal Manual)
Date of Offence : 01-09-2021
Date of filing complaint : 01-10-2021
Date of Registration of Complaint : 04-10-2021
Date of Recording Plea : 27-10-2023
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Judgment Exh.48
Date of Commencement of evidence : 19-10-2024
Date on which Judgment is Reserved : 04-05-2026
Date of the Judgment : 04-05-2026
Date of sentencing order, if any : 04-05-2026
Accused Details
Rank
of
the
Accu
sed
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
Bhavanish
ankar
Nilkanth
Wagle
- 27.10
.2023
U/s.
138
r/w.
141 of
the
N.I.
Act,
1881
Conv
icted
S.I.for 3 months
and to pay fine of
Rs.20 lakhs I.d. of
payment of fine
accused to suffer
further S.I. of 1
month. 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 Pratap Pundalik Kamath Oral 25
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.48
List of Prosecution/Defence/Court Exhibits
A) Prosecution/Complainant -
Sr. No. Exhibit Number Description
1. Exhibit – 27/CW01 Cheque No.003608
2. Exhibit – 28/CW01 Deposit Slip
3. Exhibit – 29/CW01 Cheque return memo dated
20.07.2021
4. Exhibit – 30/CW01 Demand Notice dated 14.08.2021
5. Exhibit – 31 to 34/CW01 Postal Receipts dated 14.08.2021
6. Exhibit – 35/CW01 Postal Return Envelopes
7. Exhibit – 36/CW01 Speed Post Card
8. Exhibit – 37/CW01 Statement of Account
9. Exhibit – 38/CW01 Bank Letter dated 01.10.2021
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 04th May, 2026)
Accused is tried for an offence punishable under section 138
of the Negotiable Instrument Act, 1881, for dishonor of cheque allegedly
to be issued for repayment of friendly loan.
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2. Complainant’s case in nut shell is as follows:
That accused is proprietor of Desi Bites. Complainant had
given friendly loan of Rs.62,50,000/- to him. Accused paid part amount of
Rs.4,10,000/- and Rs.58,40,000/- was balance. For repayment of part
amount accused issued subject cheque. The cheque was dishonored and
returned unpaid for the reason ‘Funds Insufficient’ on 20.07.2021.
Accused was called upon to make payment of the dishonored cheque by
issuing statutory demand notice by Registered Post on 14.08.2021. The
notice envelop returned back with remark ‘Addressee Absent and
Unclaimed’. In short accused neglected to make payment of the
dishonored cheque. Hence, this complaint.
3. After taking cognizance of the complaint I have issued process
under section 138 r/w. 141 of Negotiable Instrument Act against the
accused. On appearance of the accused, particulars of offence were stated
to him in vernacular to which the accused pleaded not guilty vide Plea
Exh.20 on 27.10.2023 and claimed to be tried. The case was tried as
summons trial.
4. The accused was given more than sufficient opportunity to
exercise 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. His advocate also remained absent and had not opted to exercise
the right of cross examination or giving statement on behalf of the accused
in his absence. No cross order came to be passed on 09.06.2025.
Statement of accused under section 313 of Code of Criminal Procedure
could not be recorded as accused remained absent. The same was
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Judgment Exh.48
dispensed with vide order dated 07.07.2025 below Exh.01. Today, also
accused and advocate absent.
5. Heard, advocate Mr. Digambar V. Pawar for the complainant.
Perused written notes of arguments Exh.47 filed on 09.12.2025. Accused
and his advocate 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-
Sr.No. POINTS FINDINGS
1. Whether it is proved that accused has
issued subject cheque bearing No.003608
dated 19.07.2021 for Rs.10 lakhs on the
account maintained with ICICI Bank,
Kandivali(E) branch, Mumbai, in favour of
the complainant in discharge of the legal
debt or liability ?
: Yes.
2. Whether it is proved that the cheque was
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 14.08.2021,
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.
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5. What order? : Accused is
convicted.
REASONS
7. Complainant has examined himself as CW-01 at Exh.25 whose
evidence has gone unchallenged on behalf of the accused. Besides oral
evidence complainant has relied upon disputed cheque, cheque return
memos, demand notice etc.
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 of the accused, only question remains for consideration whether
accused has issued subject cheque in discharge of legal liability to make
the repayment of part amount of loan 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
cheque Exh.27, copy of demand notice Exh.30, Account Statement Exh.37.
It further unfolds that accused issued subject cheque Exh.27 for repayment
of remaining loan amount. The same was dishonored for the reason of
‘Funds Insufficient’ in the account of accused.
10. 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.”
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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
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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. The
accused has failed to rebut said presumption.
14. The legal obligation to pay outstanding amount of loan exists
on accused. A cheque is not mere piece of paper. Accused has not came
with a case of repayment of loan or any other believable defence. On the
contrary, the accused and his advocate has deliberately avoided the trial.
The bail bonds of accused are forfeited. Therefore, in absence of any
defence, there is reason to believe that the cheque was issued for
repayment of loan. In view of presumption under section 139 of
Negotiable Instrument Act, I answer point No.1 in the affirmative.
AS TO POINT NO.2 :
15. The complainant has produced cheque return memo
produced at Exh.29. It shows reason for dishonor of the cheque, ‘Funds
Insufficient’. In view of presumption under section 146 of the Act, I
answer the point No.2 in the affirmative.
AS TO POINT NO.3 :
16. Accused has not disputed receiving demand notice by taking
any stand. Complainant has produced Registered Post Envelops at Exh.35.
The notice sent to the accused is returned with postal remark ‘Addressee
Absent, Unclaimed Returned to Sender’. The same is valid deemed service
of demand notice upon accused. 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
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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.
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 r/w.141 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
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punishable under section 138 r/w.141 of Negotiable Instrument Act, 1881.
Hence, I answer point No.4 in the affirmative.
19. The act of accused is an offence punishable under section 138
r/w.141 of The Negotiable Instrument Act. The accused is held guilty of
the offence punishable under section 138 r/w.141 of The Negotiable
Instrument Act, 1881.
20. 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 2021 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. In view of ratio laid down in the
Judgment and observations made by Hon’ble Lordship Bombay High Court
in the case of
Navneet Singh Gogia Vs. State of Maharashtra, dated
21.01.2025, there is no procedural lapses in delivering Judgment in
absence of accused when accused is avoiding trial.
21. The accused and advocate are absent. Therefore, I could not
hear them on the point of sentence. Heard complainant and advocate. He
claimed maximum substantive sentence and double of the fine or
compensation of the cheque amount.
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
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protracting tool. Nobody would trust making transaction on the basis of
negotiable instruments. Hence, I pass following order.
ORDER
1. Accused 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 r/w. 141 of the Negotiable
Instrument Act, 1881 and he is sentenced to undergo simple
imprisonment for 03 (Three) months and to pay fine of
Rs.20,00,000/- (Rupees Twenty Lakhs only) in default of fine shall
suffer further S.I. for 1 (One) month.
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 are already cancelled and 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 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 : 04.05.2026. 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 : 04.05.2026.
Transcribed and Typed on : 04.05.2026.
Judgment printed and Signed on : 04.05.2026.
Judgment Uploaded on : 04.05.2026.
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