Final Order 2

Order Details: Copy of Judgment
Pdf Text: MHMM180064962018 Received On : 08.05.2018
Registered on : 08.05.2018
Decided on : 28.10.2025
Duration : 07 Y 05 M 20 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. 1030/SS/2018
(CNR : MHMM180064962018)
JUDGMENT Exh.28
(Delivered on 28th day of October, 2025)
Prosecution/
Complainant : M/s. Mattel Toys India Pvt. Ltd.
Through its Authorised representative, Company
Secretary and Legal Manager
Mr.Manoj Kumar,
Age : 54 years, having its office at 5th Floor,
North Avenue – 4 Maker Maxity, Bandra-Kurla
Complex (BKC), Bandra (E), Mumbai 400 051.
Represented by : Advocate N. S. Charipalli
Accused : Mr. Vishal Goyal
Proprietor of M/s. Tirupati Marketing
having address at 12, Chaitanya Puram, Kailash
Puri, Meerut City – 250 002
Uttar Pradesh.
Represented by : Advocate Ankit M. Mota, Akhilesh Gupta
Part ‘B’
(Para 44(ii) of Chapter VI of Criminal Manual)
Date of Offence : 11-02-2018
Date of filing complaint : 08-05-2018
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Judgment Exh.28
Date of Registration of Complaint : 08-05-2018
Date of Recording Plea : 28-11-2018
Date of Commencement of evidence : 10-04-2018
Date on which Judgment is Reserved : 28-10-2025
Date of the Judgment : 28-10-2025
Date of sentencing order, if any : 28-10-2025
Accused Details
Rank
of
the
Accu
sed
Name of
Accused
Date
of
Arre
st
Date
of
Releas
ed on
bail
Offen
ce
charg
ed
with
Final order Sentence Per
iod
of
det
ent
ion
un
der
gon
e
1. Mr. Vishal
Goyal
- 28.11.
2018
U/s.
138
of
the
N.I.
Act,
1881
Convicted S.I.for 1 year and
to pay fine of
Rs.12,39,474/-
id. of fine shall
suffer further S.I.
for 06 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 Mr. Manoj Kumar Oral 06
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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 – 17/CW01 Board Resolution dated
14.02.2018
2. Exhibit – 18/CW01 Cheque bearing
No.025002
3. Exhibit – 19/CW01 Cheque Return Memo
4. Exhibit - 20/CW01 Office copy of Demand
Notice dated 23.01.2018
5. Exhibit – 20-A/CW01
collectively.
Two Postal receipts
6. Exhibit - 21/CW01 Postal Track Consignment
Report
B) Defence -
Sr. No. Exhibit Number Description
1. Exhibit - /DW01 -
C) Court Exhibits -
Sr. No. Exhibit Number Description
1. Exhibit - /CW01 -
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D) Material Object -
Sr. No. Material Object Number Description
1. - -
JUDGMENT
(Delivered on this 28th October, 2025)
Accused is tried for the offence punishable under section
138 of the Negotiable Instrument Act, 1881 for dishonor of cheque
issued against the outstanding payment towards sold toys.
2. Complainant’s case in nut shell is as follows:
That he is Company Secretary and legal Manager and
authorized representative of complainant company. He is conversant
with the facts of the transaction. Complainant company had sold and
supplied various toys as per the demand of the accused. A total amount
of Rs.9,31,271/- was outstanding towards the accused against sale of
toys. Out of it accused made some part payment and issued subject
cheque in discharge of legal liability. The cheque was returned unpaid
for the reason ‘Funds Insufficient’ vide cheque return memo dated
04.01.2018. Complainant received intimation of cheque return on
05.01.2018. Accused was called upon to make payment of the
dishonored cheque by issuing demand notice dated 23.01.2018.
Accused received the demand notice but failed to make payment.
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.15 on 28.11.2018 and claimed to be tried. The
case was tried as summons trial.
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4. The accused was given more than sufficient opportunity to
exercise his right of further cross examination of PW-01 on his
additional evidence affidavit 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.
Advocate for accused has also not opted to exercise said rights on
behalf of the accused in his absence. Considering long standing absence
for trial, bail bonds of the accused was forfeited. The right of further
cross examine the complainant PW-01/CW-01 stands closed and
statement under section 313 of Code of Criminal Procedure stands
dispensed with vide order dated 02.04.2025 below Exh.01.
5. Heard, advocate N. S. Charipalli for the complainant.
Accused and his advocate Ankit M. Mota, Akhilesh Gupta are absent.
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
drawn subject cheque bearing No.025002
for Rs.6,19,737/- dated 29.12.2017 on the
account of accused maintained with
Nainital Bank Ltd., Meerut (U.P.) Branch,
in favour of the complainant in discharge
of the legal debt or liability to pay the
balance amount against toys sold to the
accused by the complainant?
: Yes.
2. Whether it is proved that the cheque was
dishonored for the reason ‘Insufficient
Funds’ and returned unpaid to the
complainant?
: Yes.
3. Whether it is proved that the accused has
received demand notice dated 23.01.2018,
: Yes.
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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?
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 held
guilty and
convicted.
REASONS
7. Complainant has examined its Authorized Representative
PW-01/CW-01 Manoj Kumar at Exh.6. Besides oral evidence
complainant has relied upon certified true copy of Board Resolution
dated 14.02.2018 at Exh.17, cheque at Exh.18 dishonored memo at
Exh.19, Demand notice at Exh.20, Postal receipts at Exh.20-A
collectively, Distribution Agreement dated 18.11.2014 at Exh.24, Letter
issued by accused on 18.11.2014 at Exh.25, Ledger Account Statement
at Exh.26 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 on the part of the accused, only question remains
for consideration whether accused has issued subject cheque in
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discharge of his legal liability to make the payment of amount against
the toys sold to him by the complainant company.
AS TO POINT NO.1:-
9. Complainant’s oral evidence is replica of the averments
made in the complaint. He admitted that he has not produced the bill
of supply of goods, purchase order. His evidence states that different
Marketing and Sales Teams exists in complainant company. He is not
the head of Marketing or Sales Team. He admitted that he has not
personal knowledge about the transaction. His evidence states that he
is not aware that the cheque was given as security against the goods
etc. However, he has denied suggestion of misuse of the security cheque
and no authority for issuing demand notice.
10. Needless to state that complainant has not produced copy
of bill or Invoice raised against the accused. However, his evidence can
not be disbelieved merely on the aspect of not producing Invoice or
Bill. The complainant has came with a case of outstanding balance
payable amount by the accused towards several Invoices pertaining to
sales of toys time to time and issuing subject cheque towards balance
amount. Complainant as produced Ledger Account Statement Exh.26
which is sufficient to accept the case of complainant as to the balance
payable due amount towards accused.
11. Even not producing purchase orders will also not vitiate his
oral testimony considering issuance of cheque by the accused. Letter
issued by the accused on 18.11.2014 produced at Exh.25 clearly shows
that the disputed cheque bearing No.025002 was not issued as a blank
signed security cheque. If it was so, the accused would have mentioned
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the cheque number in letter Exh.25 authorizing the complainant to fill
the contents and deposit the cheques. Therefore, the defence of misuse
of security cheque is also falsified.
12. 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.”
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, 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,
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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 cheques 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
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.
16. The legal obligation to pay said outstanding amount of
sold toys remains on accused. Accused has not replied the Demand
Notice or disputed issuance of cheque. A cheque is not mere piece of
paper. In absence of any defence, there is reason to believe that the
cheque was issued for making payment of the outstanding balance
amount. The defence of accused issuing cheque towards security do not
appears probable and trustworthy. Accused has not adduced evidence
to support defence nor sought fatal admissions in the cross examination
of complainant to create doubt on the case of complainant.
17. There is no term as a ‘security cheque’ in the Negotiable
Instrument Act, 1881. Once the existence of legal obligation is proved,
even though the cheque is issued towards security, the holder of the
instrument/cheque can present it for recovery of legal dues. Onus of
burden of proof strongly lies upon accused to establish that the cheque
was issued for other purpose than against legally enforceable liability.
By proving cheque and signature, complainant has shifted the legal
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onus of burden of proof upon the accused. However, the accused has
failed to discharge said burden. 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 :
18. The complainant has produced cheque return memo at
Exh.19. The Customer Debit Advice Exh.19 shows that the cheque
Exh.18 returned unpaid for the reason ‘Insufficient Funds’ by the
banker of complainant that is HDFC Bank Ltd. Except suggestion of
bank memo Exh.19 without seal and signature of bank authority,
accused has not categorically denied dishonor of cheque for the reason
of Funds Insufficient nor came with a case of having sufficient balance
in his account on the date of presentation of cheque for realization.
Therefore, oral evidence of complainant will have to be believed in
absence of specific defence and evidence on the part of accused. The
reason of dishonor of cheque 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 :
19. Accused has not disputed receiving demand notice.
Accused has also not disputed correctness of the address mentioned in
demand notice Exh.20 sent by Registered Post Acknowledgment. The
defence of having no authority to issue demand notice is without
evidence and unacceptable. The defence of not receiving goods or no
legal liability is also without evidence and unacceptable. Accused
would have replied the demand notice giving specific reasons as to the
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his various defences of non existence of legal liability, security cheque
etc. The notice is duly served by Registered Post. Oral evidence of CW-
01 is supported by documentary evidence of Postal receipts and Postal
Track Consignment Report. 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.
AS TO POINT NOS.4 AND 5 :
20. 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
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(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.
21. 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 r/w.141 of Negotiable Instrument Act,
1881. Hence, I answer point No.4 in the affirmative.
22. Accused is Proprietor of M/s. Tirupati Marketing Firm.
Cheque is drawn on account of M/s. Tirupati Marketing Firm under
signature of accused as its Proprietor. His signature on cheque is
identical and similar to his signature on Bail Bond Exh.14, Plea Exh.15.
The act of the accused as the person in charge of the day to day affairs
of M/s. Tirupati Marketing Firm and being solely responsible person for
the business of Proprietary Firm, the same is an offence punishable
under section 138 r/w. section 141 of The Negotiable Instrument Act.
Therefore, the accused is liable for punishment. The accused is held
guilty of the offence punishable under section 138 r/w.141 of The
Negotiable Instrument Act, 1881.
23. Heard advocate N. S. Charipalli for the complainant. He
prayed for awarding maximum punishment. Accused and his advocate
absent for hearing on the point of sentence.
24. Record shows that accused has kept the matter lingering.
The complainant has right of speedy trial. The law mandates to
conclude the trial within six months from the commencement of
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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.
25. The 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 and delayed legitimate right of complainant to
receive the price of goods sold to the accused. Practice of giving credit
of some period to make payment is custom in commercial business
transaction but not a right or privilege to make delay in making
payment. 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 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 01 (one) year and to pay fine of
Rs.12,39,474/- (Rupees Twelve Lakhs Thirty Nine Thousand
Four Hundred and Seventy Four only) in default of fine shall
suffer further S.I. 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
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Procedure and under section 395(1)(b) of the Bhartiya Nagarik
Suraksha Sanhita, 2023.
3. Bail Bond of accused stands forfeited and cancelled. The
amount of cash bail if any be credited to Government Account.
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 : 28.10.2025. 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 : 28.10.2025.
Transcribed and Typed on : 28.10.2025.
Judgment printed and Signed on : 28.10.2025.
Judgment Uploaded on : 28.10.2025.
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