Final Order 3

Order Details: Copy of Judgment
Pdf Text: MHMM180079142021 Received On : 19.03.2021
Registered on : 29.12.2021
Decided on : 06.10.2025
Duration : 04 Y 06 M 17 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)
Summary Case No.5800147/SC/2021
(CNR : MHMM180079142021)
JUDGMENT Exh.28
(Delivered on 6th day of October, 2025)
Prosecution/
Complainant : SMT. SARITA BABIRAM MALGAVE
Through her Constituted Attorney
Mr. Rahul Babiram Malgave
Age : 28 years, R/o. 42/2/64 Kamla Raman
Nagar, T.H. Katariya Marg, Opp. Matunga
Railway Station, Matunga Road, Mumbai,
Maharashtra-400 019.
Represented by : Advocate Arun Lambe
Accused : MR. AMOL JAGANNATH TELI
Proprietor of Teli Builders,
Age : 45 years, Occ.: Business,
R/o. Post Sade Vaghotan, Tal-Devgad, Dist.
Sindhudurga, Pin-416 804.
Represented by : Advocate B.G. Tangbali
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Part ‘B’
(Para 44(ii) of Chapter VI of Criminal Manual)
Date of Offence : 15-02-2021
Date of filing complaint : 19-03-2021
Date of Registration of Complaint : 29-12-2021
Date of Recording Plea : 31-10-2022
Date of Commencement of evidence : 25-07-2023
Date on which Judgment is Reserved : 06-10-2025
Date of the Judgment : 06-10-2025
Date of sentencing order, if any : 06-10-2025
Accused Details
Ran
k of
the
Acc
use
d
Name of
Accused
Dat
e of
Arr
est
Date
of
Releas
ed on
bail
Offen
ce
charg
ed
with
Final order Sentence Period
of
detenti
on
under
gone
1. MR.
AMOL
JAGANNATH
TELI
- 31.10.
2022
U/s.
138
of the
N.I.
Act,
1881
Convicted S.I.for 3
months and
to pay fine of
Rs.4 lakhs
I.D. of
payment of
fine accused
to suffer
further S.I.
of 1 month.
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. Rahul Babiram Malgave Oral 14
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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 – 16/CW01 Verified copy of bank
deposit slip
2. Exhibit – 17/CW01 Verified copy of Bank Pass
book
3. Exhibit – 19/CW01 Cheque No.000078.
4. Exhibit – 20/CW01 Cheque Return Memo
5. Exhibit – 21/CW01 Office copy of Demand
Notice dated 27.01.2021
6. Exhibit - 22/CW01 Postal receipt
7. Exhibit – 23/CW01 Postal Track Consignment
Report
8. Exhibit – 24/CW01 Speed Post A.D.Card
9. Exhibit – 25/CW01 Original Power of Attorney
B) Defence -
Sr. No. Exhibit Number Description
1. Exhibit - /DW01 -
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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 6th October, 2025)
Accused is tried for the offence punishable under section
138 of the Negotiable Instrument Act, 1881, for dishonor of cheque
alleged to be issued for repayment of consideration amount.
2. Complainant’s case in nut shell is as follows:
Complainant is Constituted Attorney and son of original
complainant. Late husband of original complainant Smt. Sarita Malgave
had booked a flat in the project of the accused at Village Padel, Tal.
Deogad, Dist. Singdhudurga. Towards part consideration he had paid
Rs.4 lakhs to the accused on 07.06.2016. However, unfortunately later
on the husband of original complainant and father of Constituted
Attorney suffered some serious health issues. Therefore, they cancelled
the deal as the cost of medical treatment was not affordable to them.
On discussion accused promised to repay the amount paid by Late
Babiram S. Malgave. Subsequently, he died on 06.11.2016. Therefore,
in discharge of liability of repayment of amount of part consideration
paid towards purchase of flat, accused issued subject cheque drawn on
his bank account maintained with Bank of India, Wada branch,
Sindhudurga, in favour of complainant. On depositing the cheque was
dishonored for the reason ‘Account Closed’ by the accused. Complainant
received the dishonor memo on 28.12.2020. Accused was called upon
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to make payment of dishonored cheque by issuing statutory notice
dated 27.01.2021 by speed post. Accused received the notice on
30.01.2021 but 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.12 on 31.10.2022 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 continuously
remaining absent. His advocate also remained absent and had not
opted to exercise the right of cross examination or giving statement on
behalf of the accused in his absence. No cross order came to be passed
on 23.09.2024. Therefore, bail bond of the accused was forfeited vide
order dated 25.03.2025. 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
25.03.2025 below Exh.01.
5. Heard, advocate Arun Lambe for the complainant. Accused
and his advocates Prabha Badadore, Omkar Nagwekar, B.G. Tangbali
are absent.
6. Following points arise for my determination to which I
have recorded my findings with reasons thereto as follows-
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Sr.No. POINTS FINDINGS
1. Whether it is proved that the accused has
drawn subject cheque bearing No.000078
for Rs.2 lakhs dated 01.10.2020 on the
account of accused maintained with Bank
of India, Wada Branch, Sindhudurga in
favour of the complainant in discharge of
the legal debt or liability to repay the part
amount of consideration paid towards
purchase of flat?
: Yes.
2. Whether it is proved that the cheque were
dishonored for the reason ‘Account Closed’
and returned unpaid to the complainant?
: Yes.
3. Whether it is proved that the accused has
received demand notice dated 27.01.2021,
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 held
guilty and
convicted.
REASONS
7. Complainant has examined her son vis-a-vis Constituted
Attorney Rahul Malgave as CW-01 at Exh.14 whose evidence has gone
unchallenged on behalf of the accused. Besides oral evidence
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complainant has relied upon verified copy of bank pass book Exh.17,
cheque Exh.19, demand notice Exh.21 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
discharge of legal liability to make the repayment of part amount of
consideration of Rs.4 lakhs paid to him by the husband of complainant.
AS TO POINT NO.1:-
9. Complainant’s oral evidence is replica of the averments
made in the complaint. It is corroborated by the documentary evidence
of Passbook Exh.17 which shows that deceased Babiram S. Malgave
had paid Rs.4 lakhs to the accused on 09.06.2016 by RTGS towards
purchase of flat in his project. It further unfolds that accused issued
subject cheque Exh.19 for repayment of said part amount of
consideration on account of cancellation of transaction after death of
Babiram S. Malgave. The same was dishonored for the reason of closing
account by the accused on 30.06.2015. The reason of dishonor itself
shows the element of cheating and dishonest intention on the part of
accused in respect of issuing cheque.
10. 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.”
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11. 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”.
12. 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,
complainant would have been expected to prove the said fact
independently and without taking aid of the presumption. ”
13. 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
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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.
14. The legal obligation to pay said amount of consideration
exists remains on accused as the transaction is cancelled in between
parties. Had it not been so, accused would not have issued subject
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
repayment of the part consideration amount paid by the deceased
husband of the complainant. 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 :
15. The complainant has produced cheque return memo
produced at Exh.20. It shows reason for dishonor of the cheque,
‘Account Closed on 30.06.2015’. The reason of dishonor of cheque is
not disputed. The same itself sufficient to draw an inference that
accused issued subject cheque knowing well closing his bank account to
cheat the complainant. 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 :
16. Receipt of demand notice by the accused is not in dispute.
The notice is duly served by Registered Post. Oral evidence of CW-01 is
supported by documentary evidence of Postal receipts Exh.22, Postal
Track Consignment Report Exh.23, and A.D.Card Exh.24. A legal and
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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 :
17. 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.
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18. 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.
19. 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, 1881.
20. Both parties and their advocates are absent.
21. 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 2021 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.
22. 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. 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.
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ORDER
1. Accused Amol Jagannath Teli, Age : 46 years, R/o. Sade
Vaghotan, Tal.Deogad, Dist. Sindhudurga, 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 of
the Negotiable Instrument Act, 1881 and he is sentenced to
undergo simple imprisonment for 03 (three) months and to pay
fine of Rs.4,00,000/- (Rupees Four Lakhs only) in default of fine
shall suffer further S.I. for 01 (one) month.
2. If fine is paid, the same be given to the complainant as
compensation under section 357(3) of Code of Criminal
Procedure and under section 395(3) of the Bhartiya Nagarik
Suraksha Sanhita, 2023.
3. Bail Bond of accused stands cancelled as forfeited.
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 : 06.10.2025. 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 : 06.10.2025.
Transcribed and Typed on : 06.10.2025.
Judgment printed and Signed on : 06.10.2025.
Judgment Uploaded on : 06.10.2025.
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