Final Order 5

Order Details: Copy of Judgment
Pdf Text: MHMM180064722021 Received On : 22.10.2021
Registered on : 22.10.2021
Decided on : 02.01.2026
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.5800752/SS/2021
(CNR : MHMM180064722021)
JUDGMENT Exh.28
(Delivered on 02nd January, 2026)
Prosecution/
Complainant : SHRI AJAY VASU AJWANI
Age : 56 years, Occ. Business,
R/o. 60/ Ocean View, Union Park,
Khar West, Mumbai-400 052.
Represented by : Advocate Ms. Aruna S. Pandey
Accused : SHRI BHASKAR JAGDISHCHANDRA JOSHI
Age : 53 years, Occ. : Business.
R/o. Flat No.704/8, Solitier-2, Poonam Garden,
Mira Bhayender Road, Near Sk Stone, Mira
Road(E), Mira Bhayender, Thane, Maharashtra.
Represented by : Advocate Ms. Dipika Oswal
Part ‘B’
(Para 44(ii) of Chapter VI of Criminal Manual)
Date of Offence : 20-10-2021
Date of filing complaint : 22-10-2021
Date of Registration of Complaint : 22-10-2021
Date of Recording Plea : 24-06-2022
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Judgment Exh.28
Date of Commencement of evidence : 04-10-2022
Date on which Judgment is Reserved : 02-01-2026
Date of the Judgment : 02-01-2026
Date of sentencing order, if any : 02-01-2026
Accused Details
Ra
nk
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
1. BHASKAR
JAGDISHCH
ANDRA
JOSHI
-
24.06
.2022
U/sec.
138 of
the
N.I.
Act,
1881
Convic
ted
Accused is
sentenced to
undergo S.I. for 1
month and to pay
fine of
Rs.99,000/ I.d. of
payment of fine
to suffer further
S.I. for 8 days. 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 Ajay Vasu Ajwani Oral 11
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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 – 14/CW01 Cheque bearing No.100539
2. Exhibit – 15/CW01 Cheque return memo dated
03.07.2021
3. Exhibit –16/CW01 First demand notice dated
29.07.2021
4. Exhibit – 17/CW01 Acknowledgment Card
5. Exhibit – 18/CW01 Postal Receipt dated 29.07.2021
6. Exhibit – 19/CW01 Cheque Return Memo dated
18.09.2021
7. Exhibit – 20/CW01 Copy of Second Demand Notice
dated 05.10.2021
8. Exhibit – 21/CW01 Postal Receipt dated 05.10.2021
9. Exhibit – 22/CW01 Postal Track Consignment Report
B) Defence -
Sr. No. Exhibit Number Description
1. Exhibit - /DW01 -
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C) Court Exhibits -
Sr. No. Exhibit Number Description
1. Exhibit - -
D) Material Object -
Sr. No. Material Object
Number
Description
1. - -
JUDGMENT
(Delivered on this 2nd January, 2026)
The accused is tried for an offence punishable under
section 138 of Negotiable Instrument Act, 1881 for dishonor of cheque
alleged to be issued against payment of rent charges.
2. The case of the complainant in nut shell is as follows:
That complainant is owner of the factory premises located
at Bhayender. Both are knowing each other since many years. Out of
said relations, the accused taken complainant’s factory alongwith
machinery on rent in the year 2016. Accused went on delaying
payment of the rent. Therefore, complainant deposited disputed cheque
given by the accused for realization. Said cheque returned unpaid for
‘Funds Insufficient’ on 05.07.2021. Accused was issued demand notice
dated 29.07.2021. Accused neglected to make payment. Complainant
again presented cheque second time to his banker on 18.09.2021. The
cheque again dishonored and returned unpaid for the reason ‘Funds
Insufficient’ on 20.09.2021. Again accused was called upon to make
payment vide statutory demand notice dated 05.10.2021 issued by
Registered Post. Accused received said notice on or before 20.10.2021
but failed to make payment. Hence, this complaint.
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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.10 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.26. Accused has taken defence
of committing theft of his cheque and its misuse. Accused has also
taken defence of not receiving demand notice. Accused had admitted
obtaining only factory on rent of Rs.49,500/- per month and his
signature, hand writing over the cheque Exh.14.
5. Heard advocate Ms. Aruna S. Pandey for the complainant
and advocate Ms. Dipika Oswal for the accused. Perused written notes
of arguments.
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 drawn disputed
cheque bearing No.100593 dated 03.07.2021
for Rs.49,500/- on Bassein Catholic Co-
Operative Bank Ltd. Mira Road(E) branch,
Dist. Thane, 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 ‘Funds
Insufficient’ ?
: Yes.
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3. Whether it is proved that the accused has
received demand notice dated 05.10.2021,
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.
5. What order? : Accused is
convicted.
REASONS
7. In order to prove averments made in the complaint,
complainant has examined himself as CW-01 at Exh.11 and relied upon
disputed cheque Exh.14, demand notice Exh.16 and 20 etc. Accused
has not adduced evidence.
AS TO POINT NO.1:-
8. It is the case of complainant that accused has issued
subject cheque towards use to his factory premises alongwith
machinery given to the accused. Per contra accused has taken defence
of committing theft of his cheque by the complainant and its misuse.
Accused has not disputed obtaining factory on rent of Rs.49,500/- per
month but refused use of machinery. He has admitted his signature and
hand writing over cheque Exh.14. Accused has not adduced any
evidence to show that the cheque was stolen by the complainant.
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9. In the light of above mentioned facts in controversy merely
question crops up for determination as to existence of legal liability on
the date of cheque and relevant proof.
10. Examination in chief of CW-01 depicts that both are
knowing each other since many years. Out of said relations accused has
taken complainant’s factory on rent in the year 2016. Accused went on
delaying payment which compelled the complainant to deposit the
cheque issued against rent charges.
11. Much stress is given on the point of no written agreement
in between parties for letting said factory premises to run on labour
charges or rent by the advocate for accused. However, in view of
statement of the accused recorded under section 313 of Code of
Criminal Procedure, the submission appears baseless. The accused has
clearly admitted obtaining factory of the complainant on rent at the
rate of monthly compensation of Rs.49,500/- in his statement. What
more is required to presume transaction in between parties. There may
be an oral Agreement to let out the factory out of long standing
relations. Therefore, oral evidence of the complainant which depicts
that he is proprietor of Delux Box Factory and accused issued subject
cheque towards rent charges etc appears trustworthy.
12. Complainant is holder of the cheque drawn on account of
accused. Accused has admitted his signature and hand writing over the
cheque Exh.14. So far as his defence that complainant stolen said
cheque is without evidence. Accused was issued demand notice twice
by Registered Post. The documents on record speaks for receiving both
demand notice by the accused. Accused has not taken any legal action
in respect of theft of his cheque against complainant even after his
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appearance in the case. Therefore, the same can not be considered to
disbelieve evidence and case of complainant.
13. 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”.
14. 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
independently and without taking aid of the presumption. ”
15. 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
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accused. Thereby, the burden shifts upon the accused to rebut the
presumption of law under section 139 of the Act.
16. 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 pay an outstanding amount
towards charges of using factory 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.
17. A cheque is not mere piece of paper. In absence of any
probable and trustworthy defence, there is reason to believe that the
cheque was issued for making payment of charges of using factory or
rent by the accused to the complainant. Therefore, I answer point No.1
in the affirmative.
AS TO POINT NO.2 :
18. Accused has not disputed reason of dishonor of the cheque.
Complainant has produced the dishonor memo dated 03.07.2021 at
Exh.15 and memo dated 18.09.2021 at Exh.19. Accused has not came
with a defence of making stop payment for the reason of alleged theft
nor disputed dishonor of the cheque. In view of section 146 of the
Negotiable Instrument Act, I answer the point No.2 in the affirmative.
AS TO POINT NO.3 :
19. Evidence on record shows that accused was issued
statutory notice twice that is on 29.07.2021 and later on 05.10.2021 by
Registered Post. Postal receipt of second notice is placed at Exh.21
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which corresponds to the Postal Track Consignment Report Exh.22. It
shows that the postal article posted on 05.10.2021 was delivered at
address on 06.10.2021 at about 5.22 p.m. Mere denial of receiving
statutory notice by the accused is of no use to consider his defence. On
the contrary record duly speaks about giving chance to make payment
twice to the accused.
20. 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
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.”
21. 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.
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
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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.
23. 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.
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. Complainant and advocate is absent in second session
when called out for hearing on the point of sentence. Heard accused
and his advocate. Accused prayed for showing leniency and time to
deposit the cheque amount.
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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
encourage the defrauders to use cheques as a protracting tool. Accused
shown willingness only to the cheque amount and that too at the stage
of hearing him on the point of sentence. 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 Bhaskar Jagdishchandra Joshi, Age : 53 years, Occ. :
Business, R/o. Mira Road(E), Mira Bhayender, 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) month and to pay fine of
Rs.99,000/- (Rupees Ninety Nine Thousand only) in default of
payment of fine to suffer further simple imprisonment for 8
(Eight) days.
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 : 02.01.2026. 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 : 02.01.2026.
Transcribed and Typed on : 02.01.2026.
Judgment printed and Signed on : 02.01.2026.
Judgment Uploaded on : 02.01.2026.
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