Final Order 4

Order Details: Copy of Judgment
Pdf Text: MHMM180082632019 Received On : 07.02.2019
Registered on : 02.11.2019
Decided on : 08.05.2026
Duration : 07 Y 03 M 01 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.5801177/SS/2019
JUDGMENT Exh.30
(Delivered on 8th May, 2026)
Prosecution/
Complainant : Mrs. Husna Sayyed
Age : 37 years, Occ. Housewife,
R/o. Flat No.206, A/11, Green Park,
Santacruz (West), Mumbai 400054.
Represented by : Advocate Mr. Sandeep Sherkhane.
Accused : Mr. Mohd Shahid Sayyed
Age : 42 years, Occ. : Business,
R/o.Flat No.G/4, Gr. Floor, Bldg.
No.A/1, Green Park CHS, Near
Sane Guruji School, Santacruz(W),
Mumbai – 400 054.
Represented by : Advocate Mr. Firoz G. Mulani.
Part ‘B’
(Para 44(ii) of Chapter VI of Criminal Manual)
Date of Offence : 10.01.2019
Date of filing complaint : 07.02.2019
Date of Registration of Complaint : 02.11.2019
Date of Recording Plea : 16.02.2021
Date of Commencement of evidence : 03.07.2024
Date on which Judgment is Reserved : 08.05.2026
Date of the Judgment : 08.05.2026
Date of sentencing order, if any : 08.05.2026
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Accused Details
Rank
of the
Accus
ed
Name
of
Accused
Da
te
of
Arr
est
Date
of
Releas
ed on
bail
Offe
nce
char
ged
with
Final
order
Sentence Period of
detentio
n
undergo
ne
Mohd
Shahid
Sayyed
- 16.02.
2021
U/
sec.
138
of
N.I.
Act,
1881
Con
victe
d
Accused is sentenced
to undergo S.I. for 1
year and to pay fine of
Rs.6 lakhs I.d. of
payment of fine to
suffer further S.I. for 6
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 Mrs. Husna Sayyed Oral 12
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 – 13-A/CW01 Verified copy of Bank Passbook
2. Exhibit – 14/CW01 Cheque No.000099
3. Exhibit – 15/CW01 Cheque Return Memo
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4. Exhibit – 16/CW01 Demand Notice 21.12.2018
5. Exhibit – 17/CW01 Postal Receipt dated 22.12.2018
6. Exhibit – 18/CW01 Speed Post Card
7. Exhibit – 19/CW01 India Post Track Report
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 8th May, 2026)
The accused is tried for an offence punishable under
section 138 of Negotiable Instrument Act, 1881 for dishonor of cheque
allegedly issued for repayment of loan.
2. The case of the complainant in nut shell is as follows:
That accused is her husband. He is working as contractor
and doing building construction. Both got married on 02.10.2017.
However, now they are now separated since few months. In the month
of February, 2017 accused approached her and requested to lend Rs.3
lakhs as friendly loan for his business. Therefore, she had given an
amount of Rs.2,50,000/- by RTGS on 09.03.2017 and Rs.50,000/- in
cash to the accused. Accused did not refund the amount for more than
one year and kept on giving false excuses. Later on he gave subject
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cheque dated 28.09.2018. The same was returned unpaid for the
reason ‘Funds Insufficient’ on 27.11.2018. Accused was demanded the
amount of dishonored cheque by issuing demand notice dated
21.12.2018. Accused received it on 26.12.2018 but neglected to make
payment. Hence, this complaint.
3. My Ld. Predecessor taken cognizance of the complaint and
issued process against accused under section 138 of the Negotiable
Instruments Act. On appearance of accused particulars of offence were
stated to him in vernacular to which he pleaded not guilty vide Plea
Exh.11 and claimed to be tried. The case was tried as summons trial.
4. More than sufficient opportunity given to the accused to
remain present for answering the incriminating substance found in the
evidence of complainant against him. However, neither accused
remained present nor his advocate opted to record statement on behalf
of him in his absence. Therefore, the statement of accused was
dispensed with vide order dated 14.01.2026 below Exh.27.
5. Heard Advocate Mr. Sandeep Sherkhane for the
complainant. Advocate for accused failed to advance arguments.
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 the accused has issued disputed
cheque No.000099 for Rs.3,00,000/- dated
28.09.2018, drawn on his bank account,
maintained with HDFC Bank, Santacruz(W)
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 has
received demand notice dated 21.12.2018,
issued u/sec.138(b) of the N.I. 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
convicted.
REASONS
7. In order to prove averments made in the complaint,
complainant has examined herself as CW-01 at Exh.12 by filing
evidence affidavit under section 145 of the Act and relied upon
disputed cheque, cheque returned memo, demand notice etc. Accused
has not adduced evidence.
AS TO POINT NO.1:-
8. It is the case of complainant that she is wife of accused
married on 02.10.2017. However, both are residing separately for few
months before alleged transaction of advancing friendly loan of Rs.3
lakhs to the accused. Complainant has came with further case of
advancing said loan on 09.03.2017 by RTGS Mode and partly in cash
payment of Rs.50,000/-. Against said liability accused issued subject
cheque dated 28.09.2018 which was dishonored and given rise to the
cause of action to file complaint.
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9. The defence gathered from the cross examination of
complainant indicates that as complainant was in need of cash amount,
she made payment by RTGS to the accused and obtained the amount in
cash from him. In nut shell accused has denied any such loan
transaction. According to him, complainant took out subject cheque
from his pocket behind his back and misused it for filing false
complaint.
10. In this context, oral evidence of complainant in cross
examination depicts that she had given the amount prior to their
marriage. Both were in love and knowing each other for more than two
years before their marriage which was solemnized on 02.10.2017. If
the admitted fact of giving money by the complainant to the accused is
taken into consideration, the suggestion in cross examination that she
made payment by RTGS for want of amount in cash and obtained it
from accused appears self contradictory and without evidence. Second
defence of committing theft of subject cheque from the pocket of the
accused behind his back also appears absolutely false and unbelievable
considering post conduct of the accused to remain silent.
11. Admittedly, after few months of marriage both are
separated and started residing separately. The verified copy of bank
passbook at Exh.13-A. The same shows transfer of an amount of
Rs.2,50,000/- on 09.03.2017 by RTGS mode to the accused. Therefore,
there is reason to believe alleged friendly loan transaction in between
complainant and accused.
12. Section 118(a) of the Negotiable Instrument Act, 1881
draws a presumption as to the cheque that ‘
Unless the contrary is
proved, the cheque or every negotiable instrument was made or drawn
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for consideration etc.’ Section 139 of the 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. Complainant is holder of subject cheque within the
meaning of section 8 of the Act. Cheque is drawn on account of
accused. Rather accused has not disputed that subject cheque is not
drawn on his account. Signature of the accused on plea Exh.11, V.P.
Exh.07, Bail Bond Exh.10 matches with signature of accused in the
cheque Exh.14. The signatures are same and identical to each other.
Accused has not disputed his signature in the cheque except suggestion
of taking out the cheque from his pocket. Therefore, complainant’s oral
evidence will prevail against bare words in defence.
14. 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”.
15. 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
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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. ”
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. 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.
17. Even if it is accepted and proved that accused issued
subject cheque to the complainant, question crops up for determination
whether a friendly loan given by wife to the husband would amount to
a legal debt or legally enforceable liability to honor the cheque? The
question goes to the root of determination of existence of legal liability
on the date of presentation of cheque out of marital relations.
18. Admittedly, there is no dissolution of marriage in between
complainant and accused. At the same time, it is evident that both are
residing separately immediately after few months of their marriage.
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The wedlock between Muslims is nothing but an Agreement and
Contract to marry. Therefore, question of pious obligation or moral
obligation does not arise. Secondly, husband can not be absolved from
legal liability to repay the amount received by him from his wife. On
the contrary maintenance of wife is sole responsibility of the husband
as per Muslim Personal Laws. Therefore, apart from the factual aspects,
the statutory presumption would prevail. There do exist a legal
obligation on the part of accused to repay said amount of friendly loan.
Thirdly, as recorded above, the defence of the accused appears
absolutely untrustworthy, improbable and without evidence.
19. A cheque is not mere piece of paper. In absence of any
defence, there is reason to believe that the cheque was issued for
payment. In view of presumption under section 139 of Negotiable
Instrument Act, coupled with existence of legal liability towards
accused, I answer point No.1 in the affirmative.
AS TO POINT NO.2 :
20. The complainant has produced cheque return memo
produced at Exh.15. It shows reason for dishonor of the cheque is
‘Funds Insufficient’. In view of section 146 of the Act, I answer the
point No.2 in the affirmative.
AS TO POINT NO.3 :
21. Accused has not disputed receiving demand notice by
taking any stand. Complainant has produced copy of demand notice at
Exh.16. The Postal Receipt Exh.17 and Speed Post Acknowledgment
Card Exh.18 shows that accused has received the demand notice sent
by Registered Speed Post. A legal and valid demand is made as
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contemplated under section 138(b) of the Negotiable Instrument Act.
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 :
22. 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.
23. 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. It is
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crystal clear that accused has committed an offence punishable under
section 138 of Negotiable Instrument Act, 1881. The accused is held
guilty of the offence punishable under section 138 of The Negotiable
Instrument Act, 1881. Hence, I answer point No.4 in the affirmative.
24. Accused and his advocate absent. Heard complainant on
the point of sentence. She submitted that nobody is alive from her
parents to maintain or look after them. She had lost her mother. She
had to maintain three daughters. The cheque for interim compensation
given by accused is also dishonored. Accordingly, prayed for awarding
legitimate sentence.
25. 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 2019 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.
26. 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. He has broken trust as well as made breach of both
obligations that is moral as well as legal obligation to pay the amount
mentioned in the cheque. 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 Mr. Mohd Shahid Sayyed, Age : 42 years, R/o.
Santacruz(W), Mumbai – 54, 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 01 (One) year and to pay fine
of Rs.6,00,000/- (Rupees Six Lakhs 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
Procedure and under section 395(1)(b) 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 : 08.05.2026. 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 : 08.05.2026.
Transcribed and Typed on : 08.05.2026.
Judgment printed and Signed on : 08.05.2026.
Judgment Uploaded on : 08.05.2026.
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