Final Order 8

Order Details: Copy of Judgment
Pdf Text: MHMM180064982018 Received On : 16.05.2018
Registered on : 16.05.2018
Decided on : 02.05.2026
Duration : 07 Y 11 M 16 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.1044/SS/2018
JUDGMENT Exh.26
(Delivered on 02nd May, 2026)
Prosecution/
Complainant : Ms. Swagata Govind Adivarekar
Age : 56 years, Occ. Business, Beautician.
R/o. Room No.1, Ahinsha Nagar, CHS, Behind
New English School, Bandra(E), Mumbai-51.
Represented by : Advocate Mr. R.M. Kambli.
Accused : Shri.Sunil Mahadev Shinde
Age : 56 years, Occ. Driver.
R/o. Building No.10, Ahinsha Nagar, CHS, Opp.
Dr. Pol Clinic, Government Colony, Bandra(E),
Mumbai-51.
Represented by : Advocate Mr. Mahesh Kadam.
Part ‘B’
(Para 44(ii) of Chapter VI of Criminal Manual)
Date of Offence : 28-04-2018
Date of filing complaint : 16-05-2018
Date of Registration of Complaint : 16-05-2018
Date of Recording Plea : 15-03-2022
Date of Commencement of evidence : 07-10-2022
Date on which Judgment is Reserved : 02-05-2026
Date of the Judgment : 02-05-2026
Date of sentencing order, if any : 02-05-2026
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Judgment Exh.26
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
Final
order
Sentence Period of
detention
undergon
e
Shri.Sunil
Mahadev
Shinde
- 15.03
.2022
U/s.
138
of the
N.I.
Act,
1881
Convic
ted
Accused is
sentenced to
undergo S.I. for
1 year and to
pay fine Rs.4
lakhs in default
of payment of
fine shall suffer
further S.I. for
6 months. If
fine deposited
the same be
given to
complainant as
compenstion.
-
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 Swagata Govind
Adivarekar
Oral evidence on
affidavit
6
B) Defence Witnesses -
DW NAME Nature of Evidence Exhibits
01 Sunil Mahadev Shinde Oral 18
02 Sonali Sunil Shinde Oral 21
C) Court Witnesses, if any -
CW NAME Nature of Evidence Exhibits
01 - - -
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Judgment Exh.26
List of Prosecution/Defence/Court Exhibits
A) Prosecution/Complainant -
Sr. No. Exhibit Number Description
1. Exhibit – 10/CW01 Cheque No.000008
2. Exhibit – 11/CW01 Cheque return memo dated
09.04.2018
3. Exhibit – 12/CW01 Demand notice dated 10.04.2018
4. Exhibit – 13/CW01 Postal Receipts
5. Exhibit – 14/CW01 Acknowledgment Receipt
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 2nd 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.
2. The case of complainant in nut shell is as follows:
That she is beautician. Accused is her neighbour. Both are
residing in same vicinity. Accused being family friend, she advanced
loan of Rs.2 lakhs to him. In discharge of said liability for repayment
accused issued subject cheque dated 16.01.2018. The same was
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Judgment Exh.26
returned unpaid for the reason ‘Funds Insufficient’ in the account of
accused vide dishonor memo dated 09.04.2018. Accused was called
upon to make payment of the dishonored cheque by issuing demand
notice dated 10.04.2018. Accused received it on 13.04.2018 but failed
to make payment within statutory period. Hence, this complaint.
3. My Ld. Predecessor taken cognizance of the complaint and
issued process against accused persons 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.9 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 dispensed with vide order below Exh.16 dated
03.06.2024. Accused has taken defence of total denial of liability. He
has denied his signature on the cheque and receiving demand notice.
5. Heard advocate Mr. Kambli for the complainant and
advocate Mr. Kadam for the accused.
6. On hearing both sides and perusing evidence on record
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 issued ten disputed
cheque bearing No.000008 dated 16.01.2018
for Rs.2 lakhs drawn on account of accused
maintained with Apana Sahakari Bank Ltd.,
Bandra branch, Mumbai in favour of the
complainant in discharge of legally enforceable
liability or other debt?
: Yes.
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2. Whether it is proved that cheque was
dishonored for the reason ‘Funds Insufficient’ ? : Yes.
3. Whether it is proved that the accused have
received demand notice dated 10.04.2018,
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 r/w.141 of the Negotiable Instruments
Act?
: Yes.
5. What order? : Accused is
convicted.
REASONS
7. To substantiate averments made in the complaint,
complainant has examined herself as CW-01 at Exh.6 and relied upon
disputed cheque, cheque returned memo, demand notice etc. As
against it accused has examined himself and his wife.
AS TO POINT NO.1:-
8. Evidence of complainant is replica of averments made in
complaint. Her evidence unfolds that both have family friendly
relations. Both are staying in the same vicinity having visiting terms
with each other. Out of said friendly and family relations she had
advanced a loan of Rs.2 lakhs to the accused. Her evidence tried to be
challenged on account of no documentary evidence as to parting
money to the accused. However, her oral testimony on the point of
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giving said amount in three parts appears more confidence inspiring
than the false defence of the accused. Not obtaining receipt or
executing Agreement for such a meager amount is quite possible
considering the family relationship and visiting terms.
9. Her evidence tried to be challenged on the point of her
financial status to question the capacity to give money to the accused.
Her evidence states that she is a beautician and running a Beauty Parlor
since last 25 years. She had monthly income of Rs.20,000/-
approximately. Therefore, it can not be said that she had no financial
means to give money in three parts to the accused. No executing any
Agreement or acknowledgment receipt will not vitiate her case nor it
will make her testimony unreliable.
10. Her evidence depicts that accused had issued subject
cheque drawn on his account to repay the amount advanced to him. It
bears his signature. Advocate for accused submitted that CW-01 has
admitted difference in signature of the accused in the cheque and
signature in the acknowledgment card. However, being holder of the
negotiable instrument within the meaning of section 8 of the
Negotiable Instrument Act, the submission do not stand to reason nor
appears legal and meritorious.
11. The burden is cast upon the accused to prove that the
signature on the cheque Exh.10 is not his signature as the cheque is
drawn on his account maintained with bank. Accused has failed to
discharge said burden by leading evidence of appropriate witness that
is his banker with whom his signature is preserved or stored in
computer for considering cheques issued to him. Oral testimony of DW-
01 and DW-02 is absolutely untrustworthy, with oblique motive to
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falsely depose against complainant for avoiding legal liability.
12. Oral testimony of the complainant is supported with the
documentary evidence of subject cheque Exh.10. What more is required
to believe her version considering the false defences taken on behalf of
the accused. It is not the case of the accused that complainant has
stolen the cheque from his house nor there is any such evidence as to
the post conduct of the prudent man. DW-02 in her cross examination
states that she can not say that CW-01 had stolen the cheque.
Therefore, failure of accused to demonstrate as to how cheque drawn
on his account came in his custody of the complainant makes the
testimony of CW-01 trustworthy.
13. Man may speak lie but the documents never. If signature of
the accused on his plea Exh.9, Bail Bond Exh.8, Vakilpatra Exh.7 is
compared to the signature in the cheque Exh.10, the same appears
similar and identical with each other. The same falsifies the stand taken
on behalf of accused.
14. Complainant is holder of negotiable instrument. Legal
liability to repay the amount of Rs.2 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.”
15. 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
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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”.
16. 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. Accused was given
more than sufficient opportunity to rebut the presumption but failed.
17. In the case in hand, 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. Accused has not denied that the cheque is drawn on his
account. Defence of accused as to denial of his signature in the cheque,
not issuing cheque to complainant is improbable and untrustworthy.
18. A cheque is not mere piece of paper. Complainant has duly
proved the signature of the accused on the cheque. Documentary
evidence will prevailed than immaterial omissions found in the
evidence of CW-01. Once the signature in the cheque is proved to be
that of accused, the presumption envisaged in section 118 (a) of the
Act that the cheque was issued for consideration will come into play. At
the same time the presumption under section 139 would follow in
favour of complainant. Section 139 of the Act enjoins on the court to
presume that the holder of the cheque received for the discharge of any
debt or liability. The burden goes on accused to rebut the presumption.
Accused has failed to rebut the presumption under section 139.
Therefore, I answer point No.1 in the affirmative.
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AS TO POINT NO.2 :
19. Complainant has produced the cheque return memo dated
09.04.2018 at Exh.11 for dishonor of cheque. Cheque is dishonored for
the reason ‘Funds Insufficient’ in the account of accused. Accused has
not produced evidence showing that there was sufficient balance in the
account on the date of presentation of cheque by the complainant. 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 :
20. It is the case of the accused that he has not received the
demand notice. Demand notice was sent on wrong address. In that
context, evidence of CW-01 which states that both are residing in same
vicinity and having visiting terms falsifies testimony of DW-01. There is
reason to believe due service of notice upon accused considering
receiving summons by the accused sent by Registered Post on same
address. DW-02 has admitted in cross examination that her husband
DW-01 is well known person and everybody in the colony knows his
name. DW-01 in his cross examination stated that Postman of said area
is his friend. He admitted that address mentioned in the notice Exh.12
is correct address but room number is not mentioned. After collecting
the registered post envelop from the Postman he took it to his advocate.
All these facts denotes that accused was duly served with the demand
notice. He has received it but failed to give reply. The defence of not
receiving notice taken out of art of advocacy has no legal foundation.
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.
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AS TO POINT NOS.4 AND 5 :
21. 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.
22. 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 of limitation. It is crystal clear that accused has
committed an offence punishable under section 138 of Negotiable
Instrument Act, 1881, by dishonor of the cheque. Hence, I answer point
No.4 in the affirmative.
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23. 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.
24. Heard accused on the point of sentence. He first reiterated
that he has not taken money. After some time prayed for giving
minimum punishment. Heard advocate Mr. Mahesh Kadam for accused.
He prayed for showing leniency. Heard advocate for complainant. He
prayed for passing order of maximum sentence as per law.
25. It seems from record and proceeding that both parties are
well acquainted with each other. Both are family friends staying in
same vicinity. Main object of the Act is to raise faith in the transactions
done by way of negotiable instruments. The defence of total denial
taken on behalf of accused excludes present case from showing
leniency. The trust between families is broken by the act. The litigation
went on for more than seven years. 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.
Considering approximate 7 years utilization of money by the accused,
cost of litigation, complainant is entitled to receive the double amount
of cheque. In order to serve the object of statute, accused needs to be
punished with substantive sentence as well as compensation. Hence, I
pass following order.
ORDER
1. Accused is held guilty vide section 255(2) of The Criminal
Procedure Code and Section 278(2) of the Bhartiya Nagarik
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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.4,00,000/- (Rupees Four 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 : 02.05.2026. 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 : 02.05.2026.
Transcribed and Typed on : 02.05.2026.
Judgment printed and Signed on : 02.05.2026.
Judgment Uploaded on : 02.05.2026.
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