Final Order 2

Order Details: Copy of Judgment
Pdf Text: Summons Case No.1086/SS/2018
Judgment Exh.21
MHMM180073072018
Filed on :24.05.2018
Registered on :24.05.2018
Decided on :11.06.2025
Duration :07-Y 00-M 18-D
IN THE COURT OF JUDICIAL MAGISTRATE (FIRST CLASS),
58TH COURT, BANDRA, MUMBAI.
(Presided over by M. P. Saraf)
Summons Case No.1086/SS/2018
(CNR NO.MHMM180073072018)
Exh.21
Miss. Rohini R. Shirodkar
Age : 53 years, Occ. Advocate,
R/o. At Om Shivam Co-op. Hsg. Soc. Ltd., Flat
No.102, above Cloud 9 gymn., Lady Jamshedji
Road, Mahim,(Matunga)(W), Mumbai-400016.
…. Complainant.
Versus
Mr.Surendra Pandurang Londhe
Age : 62 years, Occ. Service,
R/o. At B/77, 3/3, Gautam Nagar, A Colonm, P.L.
Lokhande Marg, Govandi, Mumbai-400043.
…. Accused.
Offence U/sec.138 of the Negotiable Instruments Act, 1881.
Mrs. B. P. Chounal, Mr. O.P.Dubey Advocate for the complainant.
Accused in Person Advocate for the accused.
JUDGMENT
(Delivered on 11.06.2025)
This is the complaint filed under section 138 of The
Negotiable Instrument Act for the reason of dishonor of the cheque
alleged to be issued against payment of providing legal services to the
accused by the complainant.
2. Complainant’s case in nut shell is as follows:
That she is an advocate. Mr. Anand Salvi brought the
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accused to her for preparing the documentation of marriage
registration of the accused and legal assistance. Accordingly,
Rs.15,000/- was charged for providing legal assistance. Complainant
completed the work as agreed in between her, Mr. Anand Salvi and the
accused. The accused gave subject cheque dated 03.03.2018 for
Rs.15,000/- against the payment of legal fees. The cheque was
dishonoured and returned unpaid for the reason funds insufficient in
the account of the accused vide cheque return memo dated 12.03.2018.
She received the cheque return memo from her banker on 14.03.2018
The accused was called upon to make payment of the dishonored
cheque vide demand notice dated 11.04.2018 sent by registered post
and received by the accused on 12.04.2018. Accused neglected 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.8 on 08.08.2018 and claimed to be tried. The case
was tried as summons trial.
4. The accused was given more than sufficient opportunity to
exercise his 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 remaining absent.
Thereafter, statement of accused under section 313 of Code of Criminal
Procedure could not be recorded as accused remained absent. The
same was dispensed with vide order dated 21.05.2019 below Exh.01 by
my Ld. Predecessor.
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5. Heard, advocate Mrs. B. Chaunal for the complainant.
Perused written notes of arguments filed by the complainant at Exh.20.
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.563771 for Rs.15,000/- dated
03.03.2018 on Dena Bank, New Marin
Lines Branch, Mumbai in favour of the
complainant in discharge of the legal
debt or liability to pay the legal services
provided by the complainant?
: 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
11.04.2018, 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
dishonour 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 held guilty
and convicted.
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REASONS
7. To substantiate the contention raised in the complaint,
complainant has examined herself as PW-01 at Exh.06. Her oral
evidence has gone unchallenged vide order dated 28.12.2018.
Complainant has also examined PW-02 Anand Salvi, the middleman
and relative of accused at Exh.16. His evidence also gone unchallenged
vide order dated 09.04.2019.
8. Besides oral evidence complainant has relied upon
dishonored cheque bearing No.563771 for Rs.15,000/- dated
03.03.2018 drawn on Dena Bank, New Marin Lines branch, Mumbai at
Exh.9, cheque return memo dated 09.03.2018 at Exh.10, Postal receipt
at Exh.11, office copy of demand notice dated 11.04.2018 at Exh.12,
Postal Speed Post Card at Exh.13 and closed evidence.
AS TO POINT NO.1:-
9. Section 139 of Negotiable Instrument Act, 1988 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.”
10. 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”.
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11. 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 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. The
complainant has proved existence of legal liability against the accused
on the date of cheque.
12. The complainant is holder of subject cheque. The cheque
belongs to the Bank account of accused maintained with Dena Bank,
Marin Lines Branch, Mumbai. PW-02 stated in his evidence that
accused issued subject cheque towards legal fees and expenses to the
complainant in his presence. PW-02 is close relative of accused and on
his instruction the legal advice and documentation of marriage papers
were done by the complainant. Therefore, in view of presumption
under section 139 coupled with proof of existence of legal liability to
pay the legal fees and expenses for marriage registration and
documentation by the accused, I answer point No.1 in the affirmative.
AS TO POINT NO.2 :
13. The complainant has produced the cheque return memo at
Exh.10. It shows reason for dishonour of the cheque, ‘Funds
Insufficient’ in the account of accused. The reason of dishonour of
cheque is not disputed. The cheque return memo bears seal of the
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NKGSB Bank that is bank of the complainant and signature of issuing
authority. 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 :
14. Complainant has produced office copy of the demand
notice dated 11.04.2018 at Exh.12 alongwith postal receipt Exh.11,
Postal Speed Post Card at Exh.13. It shows that accused has received
the demand notice on 12.04.2018. The notice shows legal and valid
demand of cheque amount to be paid within 15 days of receipt of
notice as contemplated under section 138(b) of the Act. Hence, I
answer point No.3 in the affirmative.
AS TO POINT NOS.4 AND 5 :
15. 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
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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 holder of the cheque fails to make the payment of the
‘said amount of money’ within fifteen days from the receipt of
the notice.
16. Complainant has satisfactorily proved all the above
ingredients 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.
17. 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 the offence
punishable under section 138 of The Negotiable Instrument Act.
18. Heard complainant. She prayed for passing legitimate
order. Accused is absconding. His presence could not be secured by the
complainant even after taking appropriate legal steps issuing warrants
number of times. The matter was pending for final conclusion since
long back for 5 years. However, a specific order taking note of all the
situation against the accused was passed below Exh.01 on 29.01.2025.
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The order is also uploaded on CIS for the knowledge of accused.
Despite the same accused has not turned up before the court. 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 2018 pending on the file of this Court coupled with
forfeiture of bond, the Judgment is delivered in absence of accused
taking recourse to section 353(6) of Code of Criminal Procedure.
19. While passing sentence, the court has to see the object of
the Act, effect of the punishment on the entire society. The main object
of the act is to raise faith in the transactions done by way of negotiable
instruments. The accused is liable to make payment of the cheque
amount as claimed against the profession legal fees. The accused has
kept the trial lingering by remaining absent. In the facts and
circumstances, 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. Therefore, it would
not be just and proper to show leniency in awarding punishment to the
accused. The complainant is entitled to receive compensation for the
delayed payment of dishonored cheque. Hence, I pass following order.
ORDER
1. Accused Surendra Pandurang Londhe, Age : 62 years, Occ.
Service, R/o. At B/77, 3/3, Gautam Nagar, A Colonm, P.L.
Lokhande Marg, Govandi, Mumbai-400043, 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
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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) month
and to pay fine of Rs.30,000/- (Rupees Thirty Thousand only)
in default of payment of fine to suffer further simple
imprisonment for 7 (seven) days.
2. If fine is paid the complainant shall be given compensation of
Rs.30,000/- (Rupees Thirty 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. The bail bonds 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.
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 : 11.06.2025 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 : 11.06.2025.
Transcribed and Typed on : 11.06.2025.
Judgment printed and Signed on : 11.06.2025.
Judgment Uploaded on : 11.06.2025.
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