Final Order 3

Order Details: Copy of Judgment
Pdf Text: CNR :MHMM180065972018 Received On : 07.06.2018
Registered on : 07.06.2018
Decided on : 23.07.2025
Duration : 07 Y 01 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.1120/SS/2018
JUDGMENT Exh.30
(Delivered on 23rd day of July 2025)
Prosecution/
Complainant : MR. SUDHIR SHYAM BHINGARDIVE
Age : 60 years, Occ. Business,
R/o. Ramchandra Yadav Chawl,
Subhash Nagar, Bandra(E), Mumbai-51
Represented by : Advocate Manoj Sitapure.
Accused : MR.SUBHASH PANDURANG PAWAR
Age : 61 years, Occ. Service,
R/o. Room No.4, Building No.C/25, Post and
Telegram Colony, Sahara, Andheri,
Mumbai-400 099.
Represented by : Advocate Pradeep Juwale.
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Judgment Exh.30
Part ‘B’
(Para 44(ii) of Chapter VI of Criminal Manual)
Date of Offence : 10-05-2018
Date of filing complaint : 07-06-2018
Date of Registration of Complaint : 07-06-2018
Date of Recording Plea : 01-11-2018
Date of Commencement of evidence : 07-09-2018
Date on which Judgment is Reserved : 23-07-2025
Date of the Judgment : 23-07-2025
Date of sentencing order, if any : 23-07-2025
Accused Details
Rank
of
the
Accu
sed
Name of
Accused
Date
of
Arres
t
Date of
Released
on bail
Offence
charged
with
Final order Sentenc
e
Period
of
detent
ion
under
gone
1. Subhash
Pandurang
Pawar
- 13th
February
2019
Under
section
138 of
the
N.I.Act,
1881
Convicted One
month
S.I. and
fine of
Rs.60,0
00/-
I.d. of
fine
further
S.I. of
15 days
-
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Judgment Exh.30
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. Sudhir Shyam Bhingardive Oral 5
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 Receipt cum writing
2. Exhibit - 15/CW01 Cheque bearing
No.806519
3. Exhibit - 16/CW01 Cheque Return Memo
dated 11.04.2018
4. Exhibit - 17/CW01 Demand Notice dated
13.04.2018
5. Exhibit – 18/CW01 Postal receipt
6. Exhibit – 19/CW01 Acknowledgment Card
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Judgment Exh.30
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 23rd July, 2025)
Accused is prosecuted for the offence punishable under
section 138 of The Negotiable Instrument Act for the reason of
dishonor of cheque alleged to be issued for repayment of hand loan.
2. Complainant’s case is as follows:
That accused is acquainted with the complainant being a
government servant working in post department at Panvel. On
02.01.2016 accused requested friendly hand loan of Rs.30,000/-.
Accordingly, complainant paid Rs.30,000/- in cash on 05.01.2016 in
presence of their common friend. Accused executed receipt cum writing
in acknowledgment and agreed to repay within 8 months. After
repeated demands accused issued subject cheques dated 10.04.2018 to
the complainant. The cheque was dishonoured and written unpaid on
11.04.2018 for the reasons ‘Funds Insufficient’. Accused was called
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upon to pay the amount of the cheque vide demand notice send by
registered post on 13.04.2018. Accused received the demand notice on
24.01.2018 but failed to make payment. Hence, this complaint.
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.11 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.19. The accused has denied
borrowing loan, issuing cheque and receiving notice.
5. Complainant and his advocate failed to advance
arguments. Right of complainant was closed vide order below Exh.01
on 16.06.2025. Heard advocate Pradeep Juwale for the accused.
Perused written notes of arguments and citations filed on behalf of the
accused.
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 the accused
has drawn subject cheque bearing
No.806519 for Rs.30,000/- dated
10.04.2018 on Post office Saving Bank,
Mumbai GPO branch, in favour of the
complainant in discharge of the legal
debt or liability?
: Yes.
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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
13.04.2018, 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 of the
Negotiable Instruments Act?
: Yes.
5. What order? : Accused is held
guilty and
convicted.
REASONS
AS TO POINT NO.1:-
7. Evidence of complainant unfolds that he is running Omelet
stall and earning Rs.30,000/- per month. Besides said business he has
two shops of mobile and tailoring. Out of said shops he is getting
monthly income of Rs.45,000/-. In all his yearly income is around Rs.4
lakhs. His evidence on the point of his financial status appears
trustworthy. It shows his capacity to advance friendly loan of
Rs.30,000/- to the accused.
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8. His evidence further states that he paid Rs.30,000/- in cash
in presence of their common friend Sunil Vasant Harmalkar on
02.01.2016 to the accused. Accused has executed receipt in
acknowledgment of said amount. So far as the common friend Sunil
Harmalkar is concerned, the same has came in the cross examination
by accused. It shows that accused borrowed money for the medical
education of his daughter and executed receipt Exh.14. It further
depicts that accused issued subject cheque Exh.15 for repayment of
said amount.
9. Advocate for accused submitted that the cheque was given
as a security at the time of executing receipt. There is no signature of
any witness on the receipt. Complainant has failed to prove payment of
amount to the accused in the year 2016 etc.
10. The receipt Exh.14 is admitted by the accused. If receipt is
minutely perused, it states about giving Rs.30,000/- by the complainant
for educational purpose to the accused with undertaking to return the
amount in the month of March 2016. Signature of the accused on
receipt Exh.14 is identical and similar to his signature on cheque
Exh.15 and plea Exh.11. Man may speak lie but the documents never.
Oral evidence of complainant as to giving Rs.30,000/- to the accused is
supported by documentary evidence by receipt Exh.14 which is duly
proved in evidence.
11. Advocate for accused submitted that there is difference of
ink as to the date, name of payee and signature of the accused. The
cheque was given towards security and not in discharge of payment of
any amount. So far as difference of ink as to the contents of the cheque
is concerned, it can be identified by naked eyes. However, that can not
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be the substantial evidence to accept either issuing cheque only
towards security or misuse of the cheque by tampering or making
material alteration rendering the negotiable instrument void under
section 87 of the Negotiable Instrument Act. In view of section 20 of
the Act, the holder of the instrument has legal right to complete
inchoate instrument.
12. Accused has not examined himself. The case would have
been different if accused would not have admitted execution of receipt
Exh.14. The legal obligation remains on accused to repay the amount
of friendly loan. Therefore, the defence of accused that he issued
subject cheque towards security appears without evidence and
untrustworthy. A cheque is not mere piece of paper. Once the legal
obligation remains on accused, even if the blank signed cheque is
given, it can not be said to be merely for a purpose of security.
13. In the case of 'Bir Singh V/s.Mukesh Kumar' (2019) 4 SCC
197, Hon'ble Supreme Court has 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. 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.
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15. In the case in hand, the initial burden to attract the
presumption which favours the complainant that the cheque was issued
in discharge of legal debt or other liability is validly discharged by the
complainant. Accused has not disputed issuing cheque in question. The
accused has failed to rebut presumption leading cogent evidence
making his defence probable.
16. Complainant has duly proved the transaction, subsisting
liability against accused on the date of cheque. Accused has denied
receipt of demand notice. Oral evidence of complainant states that he
has sent demand notice Exh.17 by Registered Post. His statement is
supported by documentary evidence of postal receipt Exh.18 and Speed
Post Card Exh.19. Accused has not disputed correctness of the address
mentioned in the notice. Therefore, in view of presumption under
section 27 of General Clauses Act and absence of evidence in rebuttal
by the accused, omnibus statement of not receiving notice is false. Only
inference can be drawn that accused has not replied the notice.
Therefore, there is reason to believe that accused has issued subject
cheque in discharge of legal liability to repay the loan and not towards
any security. Hence, I answer the point No.1 in the affirmative.
AS TO POINT NO.2 :
17. The complainant has produced the cheque dishonor memo
of General Post office at Exh.16. The cheque return memo shows
reason of dishonor as ‘Funds Insufficient’ in the account of accused.
Accused has not came with a case of having sufficient balance of
amount on the date of dishonor of the disputed cheque in his account.
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18. Advocate for accused submitted that complainant has not
proved the cheque dishonor memo. The memo Exh.16 do not bears any
bank seal etc. In short according to him the bank memo is forged. In
support of his submission he has relied upon Judgment in the case of
Smt. Vandana W/o Akhilesh Pandey Vs. Smt. Abhilasha W/o Anil
Pandey,
in Criminal Appeal No.36 of 2017.
19. I have gone through the ratio laid down in the Judgment
cited supra. In the case before Hon’ble Lordship there was no official
mark denoting that the cheque has been dishonored as expected under
section 146 of the Act. In the case in hand, the cheque return memo
Exh.16 pertains to the Saraswat Co-operative Bank Ltd. and bears
official mark of bank denoting that the cheque has been dishonored.
The memo is signed by the officer of the bank. The document Exh.16 is
more than sufficient for attracting presumption under section 146.
Mainly, Not a single suggestion is given to the complainant in cross
examination by the accused disputing reason of dishonor of cheque or
the memo Exh.16. Therefore, with due respect to the ratio laid down by
the Hon’ble Bombay High Court, the same would not apply ipso facto
to the facts of the present case. Oral evidence of complainant will
prevail. It is supported by the documentary evidence of dishonor memo
Exh.16. Hence, I answer the point No.2 in the affirmative.
AS TO POINT NO.3 :
20. Complainant has produced office copy of the demand
notice dated 13.04.2018 at Exh.17 alongwith postal receipt at Exh.18,
A.D. Card at Exh.19. The accused has not disputed the address
mentioned on the notice. Except bare words of denial, defence of
accused is not supported with any evidence.
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21. 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.” The notice shows legal and valid demand of the amount
of dishonored cheque from the accused within the meaning of section
138(b) of the 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 dishonour, 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
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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 holder 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 of an offence under section 138 by leading cogent oral and
documentary evidence, beyond all reasonable doubt. The defence of
accused as to misuse of the cheque, non existence of legal liability etc.
appears baseless and without evidence.
24. Accused has committed an offence punishable under
section 138 of Negotiable Instrument Act by not honoring said cheque
and making payment within stipulated period after receiving demand
notice. Hence, I answer point No.4 in the affirmative.
25. The act of the accused is an offence punishable under
section 138 of The Negotiable Instrument Act. Therefore, the accused is
liable for punishment. The accused is held guilty of committing an
offence punishable under section 138 of The Negotiable Instrument
Act. Hence, I deem fit to hear the accused on the point of sentence.
26. Complainant and accused are absent. Heard advocate for
accused on the point of sentence. He prayed for showing leniency in
awarding punishment.
27. While passing sentence, the court has to see the object of
the Act, effect of the punishment on the entire society. The main object
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of the act is to raise faith in the transactions done by way of negotiable
instruments. Accused has utilized the amount for more than seven
years. Considering age of the accused and nature of friendly
transaction, it would not be just and proper to award maximum
substantive sentence to the accused. Awarding double of cheque
amount as fine will suffice the purpose. Hence, I pass following order.
ORDER
1. Accused Subhash Pandurang Pawar, Age : 61 years, R/o.
Andheri, Mumbai, is hereby convicted 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 of the Negotiable
Instrument Act, 1881 and he is sentenced to undergo simple
imprisonment for 1 (One) month and to pay fine of Rs.60,000/-
(Rupees Sixty Thousand only) in default of payment of fine to
suffer further simple imprisonment for 15 (fifteen) days.
2. If fine is paid the complainant shall be given compensation of
Rs.60,000/- (Rupees Sixty Thousand only), out of the same
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 stands cancelled.
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 the accused for the
purpose of forwarding him to the jail.
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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 : 23.07.2025. 58th Court, Bandra, Mumbai.
J.O.Code: MH01362
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 : 23.07.2025.
Transcribed and Typed on : 23.07.2025.
Judgment printed and Signed on : 23.07.2025.
Judgment Uploaded on : 24.07.2025.
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