Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. NO. 2007/SS/2018
CNR No. : MHMM19-008939-2018
Received On : 02/05/2018
Registered On : 02/05/2018
Decided On : 24/03/2026
Duration :Y-07, M-10, D-22
IN THE COURT OF METROPOLITAN MAGISTRATE, ANDHERI (Court
No. 48), MUMBAI.
( Presided over by Y. P. Pujari )
C.C. No. 2007/SS/2018 Exh. 41
Mr. Shabaaz Nujeed Khan.
Adult, Indian Inhabitant
R/o. Fakira Lala Chawl, Janta Colony,
Gilbert Hill Road, Gaondevi Dongri,
Andheri West, Mumbai – 58. -- Complainant
Versus
Mr. Amjad M. Shaikh
Adult, Indian Inhabitant,
KGN Transport, Sagar Compound,
Near Idgah Maidan, Virar (E),
Dist. Palghar. -- Accused
OFFENCE PUNISHABLE UNDER SECTION 138 OF THE NEGOTIABLE
INSTRUMENTS ACT
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Appearance:- Adv. Mrs. Asha Mankame for the complainant.
Adv. Mrs. Nanda Singh/Rajesh Yadav for the accused.
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JUDGMENT
(Delivered on 24th of March 2026)
The accused is facing trial for an offence punishable under
Section 138 of the Negotiable Instruments Act (Hereinafter referred as
“the Act” for short) for dishonor of three cheques for total amount of Rs.
65,000/-.
The brief facts of complainant's case are as under:
02. It is averred by the complainant that, the aunt of
complainant namely Rikfakatbee Sajid Khan had agreed to purchase
room No. 206, situated at Gopcher Pada, Virar (E), Dist.: Palghar and
made part payment of Rs. 1,50,000/- and accused had issued receipt
No. 275 dated 31/12/2013.
03. Complainant has further submitted that, in order to
discharge the said liability in part, the accused had issued three cheques
in favour of complainant bearing cheque No. 000022 dated 11/01/2018
for an amount of Rs. 25,000/-, cheque No. 000023 dated 11/02/2018
for an amount of Rs. 20,000/- and cheque no. 000024 dated
11/03/2018 for an amount of Rs. 20,000/- drawn on Punjab and
Maharashtra Co.Op Bank Ltd., Virar (E), Dist. Palghar. Thereafter, the
complainant deposited the above said cheques for encashment in his
bank namely The South Indian Bank Ltd., Andheri (W), Mumbai. The
same were returned unpaid from drawee bank with endorsement
'Funds Insufficient'. Accordingly, the The South Indian Bank Ltd issued
memos dated 20/03/2018 and 21/03/2018. Thereafter, he contacted
the accused and requested to pay cheque amount but the accused
intentionally not paid said amount. Thereafter, he issued demand notice
dated 27/03/2018 to accused. The notice was duly served on the
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accused but accused failed to pay cheque amount within stipulated
period. Hence, the complainant constrained to file present complaint.
04. After recording statement of the complainant and perusing
all documents produced on record, process came to be issued against
the accused for the above offence. In response to summons, the accused
appeared. Particulars of offence recorded below Exh. 15 which were
read over and explained to the accused in vernacular, to which he
pleaded not guilty and claimed to be tried.
05. Accused has conducted the cross-examination of the
complainant in which he has raised following defences:-
a) The complainant did not prove the transaction.
b) The cheque was not issued for legally enforceable
debt.
c) The accused is not liable to pay the cheque amount.
06. The statement of accused under Section 313 of the Code of
Criminal Procedure, 1972 (in short 'the Code') was recorded vide Exh.
35. In his statement U/s. 313 of the Code, accused has submitted that,
false complaint has filed against him and he is not liable to pay any
amount to the complainant.
07. Heard Advocate Shri. Rajesh Yadav for accused and also
perused and considered the written notes of argument filed by accused
at Exh. 38. Ld. Advocate for complainant did not argue in this matter.
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08. From perusal of complaint, record and defence of the
accused, following points arise for my determination. I have recorded
my finding and reasons thereon as under:
Sr. No. Points Findings.
1. Does the complainant prove that cheque No.
000022 (Exh. 22), cheque no. 000023 (Exh.
23) and cheque No. 000024 (Exh. 24) were
drawn by accused for legally recoverable debt
or other liability?
No.
2.
Does the complainant prove that the said
cheque returned unpaid for the reason “Funds
Insufficient”?
No.
3.
Does the complainant prove that he had issued
demand notice to the accused within
limitation demanding cheque amount?
Yes.
4.
Does complainant prove that the accused
failed to pay cheque amount to complainant
within statutory limit?
Yes.
5.
Whether the accused has committed an
offence punishable under Section 138 of the
Negotiable Instruments Act ?
No.
6. What order? The accused
is acquitted.
09. In order to prove his case, the complainant has filed his
evidence affidavit as a (C.W.1) at Exh. 16. The complainant also placed
his reliance upon following documents:
Description of documents Exhibit numbers
Receipt dated 31/12/2013 Article A and B
Original cheques Exh. 22 to 24
Cheque returned memos Exh. C to E
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Office copy of demand notice Exh. 25
Postal receipts Exh. 26
A. D. Card Exh. 27
REASONS
As to Point No.1:-
10. In order to prove the allegation leveled against the
accused, the complainant has filed his evidence affidavit as a (C.W.1) at
Exh. 16. As per his evidence, the aunt of complainant namely
Rikfakatbee Sajid Khan had agreed to purchase room No. 206, situated
at Gopcher Pada, Virar (E), Dist.: Palghar and made part payment of Rs.
1,50,000/- and accused had issued receipt No. 275 dated 31/12/2013.
11. It has further come in his evidence that, in order to
discharge the said liability in part, the accused had issued three cheques
in favour of complainant bearing cheque No. 000022 dated
11/01/2018 for an amount of Rs. 25,000/-, cheque No. 000023 dated
11/02/2018 for an amount of Rs. 20,000/- and cheque no. 000024
dated 11/03/2018 for an amount of Rs. 20,000/- drawn on Punjab and
Maharashtra Co.Op Bank Ltd., Virar (E), Dist. Palghar. Thereafter, the
complainant deposited the above said cheques for encashment in his
bank namely The South Indian Bank Ltd., Andheri (W), Mumbai. The
same were returned unpaid from drawee bank with endorsement
'Funds Insufficient'.
12. The accused has conducted the cross-examination of the
complainant. In his cross-examination, the accused has raised defences
that,
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a) The complainant did not prove the transaction.
b) The cheque was not issue for legally enforceable
debt.
c) The accused is not liable to pay the cheque amount.
13. Before adverting towards the merit of case, it is necessary
to deal with some legal principle regarding presumptions contemplated
in Section 118 and 139 of the Act and standards of proof for its
establishment or also for rebuttal. The Hon'ble Supreme Court of India
in
T. Vasanthakumar v/s. Vijayakumari (2015) 8 SCC 378 has held that,
“the presumption mandated by Section 139 includes a presumption that
there exists a legally enforceable debt or liability. This is of course in
the nature of a rebuttable presumption and it is open to the accused to
raise a defence wherein the existence of a legally enforceable debt or
liability can be contested. However, there can be no doubt that there is
an initial presumption which favours the respondent complainant”.
14. The Hon’ble Supreme Court of India in the case Rangappa
V. Mohan reported in AIR 2010 SC 1898, has held that, “the
presumption mandated by Section 139 of the Act does indeed include
the existence of legally enforceable debt or liability.
” In the present
case, the accused has not sent reply to the demand notice of the
complainant. The accused has conducted the cross-examination of the
complainant. I have minutely perused the cross-examination of the
complainant and it seems that, the accused has not denied the issuance
of cheque nor denied his signature on the cheque. Accused has admitted
the signature on the cheque as it is not denied by the accused.
Therefore, it can be gathered that, accused has not challenged the
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signature from cheques (Exh. 22 to 24). This shows that, the signature
of accused from cheques (Exh. 22 to 24) is not in dispute. Therefore,
the presumptions under Section 118 and 139 of the Act are raised in
favor of complainant.
15. The Hon'ble Supreme Court of India in case of
M.S.
Narayan Menon @ Mani V/s. State of Kerala and another (Appeal (Cri.)
1012 of 1999 decided on 04/07/2006) has laid down the rules
regarding the standards of proof for establishment of case as well as of
rebuttal of defence in the case filed under Section 138 of the Act. The
Hon'ble Supreme Court of India has observed that
“It is not necessary for the defendant to
disprove the existence of consideration by way of direct
evidence. The standard of proof evidently is pre-
ponderance of probabilities. Inference of pre-ponderance of
probabilities can be drawn not only from the materials on
records but also by reference to the circumstances upon
which he relies. Presumption drawn under a statute has
only an evidentiary value. Presumptions are raised in terms
of the Evidence Act. Presumption drawn in respect of one
fact may be an evidence even for the purpose of drawing
presumption under another.”
16. The Hon'ble Supreme Court of India in case of Sumeti VIJ
V/s. M/s. Paramount Tech Fab, Criminal Appeal No(s) 292 of 2021,
(Arising out of SLP (Crl.) No (s). 8498 of 2019), in which the decision
of Rohitbhai Jivanlal Patel V/s. State of Gujarat and Another, 4 (2019)
18 SCC 106 is discussed and wherein it has laid down the procedure as
to how the accused can rebut the presumption under Section118 and
139 of the Act,
“The accused in a trial under Section 138 of the Act has
two options. He can either show that consideration and
debt did not exist or that under the particular circumstances
of the case the non-existence of consideration and debt is so
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probable that a prudent man ought to suppose that no
consideration and debt existed. To rebut the statutory
presumptions an accused is not expected to prove his
defence beyond reasonable doubt as is expected of the
complainant in a criminal trial. The accused may adduce
direct evidence to prove that the note in question was not
supported by consideration and that there was no debt or
liability to be discharged by him. However, the court need
not insist in every case that the accused should disprove the
non-existence of consideration and debt by leading direct
evidence because the existence of negative evidence is
neither possible nor contemplated. At the same time, it is
clear that bare denial of the passing of the consideration
and existence of debt, apparently would not serve the
purpose of the accused. Something which is probable has to
be brought on record for getting the burden of proof shifted
to the complainant. To disprove the presumptions, the
accused should bring on record such facts and
circumstances, upon consideration of which, the court may
either believe that the consideration and debt did not exist
or their non-existence was so probable that a prudent man
would under the circumstances of the case, act upon the
plea that they did not exist. Apart from adducing direct
evidence to prove that the note in question was not
supported by consideration or that he had not incurred any
debt or liability, the accused may also rely upon
circumstantial evidence and if the circumstances so relied
upon are compelling, the burden may likewise shift again
on to the complainant. The accused may also rely upon
presumptions of fact, for instance, those mentioned in
Section 114 of the Evidence Act to rebut the presumptions
arising under Sections 118 and 139 of the Act. The accused
has also an option to prove the non-existence of
consideration and debt or liability either by letting in
evidence or in some clear and exceptional cases, from the
case set out by the complainant, that is, the averments in
the complaint, the case set out in the statutory notice and
evidence adduced by the complainant during the trial. Once
such rebuttal evidence is adduced and accepted by the
court, having regard to all the circumstances of the case
and the preponderance of probabilities, the evidential
burden shifts back to the complainant and, thereafter, the
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presumptions under Sections 118 and 139 of the Act will
not again come to the complainant's rescue”.
17. The Hon'ble Bombay High Court in the case of
Vishnu Vs.
State of Maharashtra (Cri. Rev. Application No. 176/2015 decided on
24/01/2019) observed that,
“There cannot be any manner of dispute with
the proposition that once the presumption arising under
Section 118 read with Section 139 of the Act is raised, it can
be rebutted by the accused on preponderance of probability
at the trial. This can be done on the basis of cross-
examination of the complainant and his witnesses, if any,
and/or by leading independent defence evidence.”
18
. As accused has not challenged his signature on the cheques
(Exh. 22 to 24), the presumptions under Section 118 and 139 of the Act
are raised in favor of complainant. Therefore, in view of the
observations given in case of Rangappa V/s. Sri Mohan (Cited Supra),
the accused has to raise a probable defence which creates doubts about
the existence of a legally enforceable debt or liability and the
prosecution can fail. It also makes clear that, mere denial is not
sufficient to rebut the presumption which is raised in favor of
complainant. As observed in the case of
Vishnu Vs. State of Maharashtra
(cited supra), accused has many modes to bring on record his defence
e.g. by replying upon notice, complaint, complainant's evidence and
also by mode of cross examination, her own testimony or of other
witnesses, if cross examined and also through statement of accused
recorded under section 313 of the Code. In the present case, the
accused has conducted the cross-examination of complainant wherein
he raised defences that:-
a) The complainant did not prove the transaction.
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b) The cheque was not issue for legally enforceable
debt.
c) The accused is not liable to pay the cheque amount.
The statement of accused under Section 313 of the Code is recorded
wherein he submitted that false complaint has filed against him and he
is not liable to pay any amount to the complainant.
19. So far as the first defence of the accused is concerned, the
accused has submitted that, the complainant did not prove the
transaction. As per the case of complainant, his aunt namely
Rikfakatbee Sajid Khan has agreed to purchase room No. 206, situated
at Virar (E) and she has paid part payment of Rs. 1,50,000/- and
accused had issued receipt to that regard. The complainant has filed
receipt at Article-A and B. Perusal of these receipts, it seems that, these
receipts are issued in the name of Rikfakatbee Sajid Khan. Therefore,
the question arose what was the transaction in between complainant
and accused because as per case of complainant itself, there was
transaction between his aunt namely Rikfakatbee Sajid Khan and
accused. Therefore, it seems that, there is no transaction between
present complainant and accused and there was transaction between his
aunt namely Rikfakatbee Sajid Khan and accused.
20. The another question arose as to why the cheques were
issued by the accused in the name of present complainant and whether
the present complainant is entitled for recovery of amount and whether
it can be said that the cheques were issued for legally enforceable debt
or liability. I have minutely perused the complaint as well as evidence
of the complainant and it nowhere mentioned by the complainant as to
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why these cheques were issued by the accused in his favour even
though there was no transaction between him and accused. Further, it
seems from the record that, the present complainant is not entitled for
recovery of amount because as per the case of the complainant itself,
the amount of Rs. 1,50,000/- was given by his aunt namely Rikfakatbee
Sajid Khan to the accused and for that purpose he has filed receipt at
Article-A and B. Therefore, the complainant is not entitled for the
recovery of amount. Further, it cannot be said that, the complainant is
entitled to recover the amount and the cheques were issued for legally
enforceable debt because it has come on record that there was no any
transaction between complainant and accused that the amount was also
given by his aunt namely Rikfakatbee Sajid Khan to the accused.
21. I have perused the cross-examination of complainant
wherein the complainant has admitted that, the transaction mentioned
in the complaint was taken place between her aunt and accused. He
further admitted that, his aunt had given amount to the accused. He
also admitted that, the accused had given cheque without mentioning
name of the payee to his aunt. All the cheques were given by the
accused to his aunt namely Rikfakatbee Sajid Khan. The following
question was asked to complainant regarding his connection with the
present complaint for which he answered as follows:-
Q. You are not at all concerned with this matter?
Ans. Cheques were given to Rikfakatbee but same were
depositing in my account and hence I have concerned with
this matter.
Perusal of the above cross-examination and admission given by the
complainant, it seems that, the present complainant is not at all
concerned with the present transaction. The cheques were given by the
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accused without mentioning the name and the complainant has
mentioned his name only to deposit these cheques in his account.
Therefore, there is no absolutely legal liability against the accused.
22. In the case in hand, as I discussed above the accused has
brought on record material by way of cross-examination and rebutted
the presumption. Therefore, it becomes clear that the accused has
succeed to rebut the presumption raised under Section 118 & 139 of the
Act. Therefore, I hold that the complainant has failed to prove that
accused has issued the subject cheques from his account in favour of the
complainant towards the legally enforceable debt. Hence, point No. 1 is
answered in the “Negative”.
As to Point No. 2:-
23. As per contentions and evidence of complainant, the
cheque No. 000022 (Exh. 22), cheque no. 000023 (Exh. 23) and cheque
No. 000024 (Exh. 24) were presented for encashment. However, the
cheques were returned with remark as “Funds Insufficient”. The
complainant has filed the cheque returned memos at Article C to E.
These documents are not exhibited because these memos do not bear
official mark. I have perused Section 146 of N. I. Act which reads as
follows:-
“
The Court shall, in respect of every proceeding
under this Chapter, on production of bank's slip or memo
having thereon the official mark denoting that the cheque
has been dishonored, presume the fact of dishonor of
such cheque, unless and until such fact is disproved”.
24. Perusal of above provision, it makes clear that, the cheque
returned memos which bears official mark have presumption but in the
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case in hand, the cheque returned memos filed at Article-C to E do not
bear official mark and therefore, the presumption available U/s. 146 of
N. I. Act is not available to these cheque returned memos. Ld. Advocate
for the accused submitted that, he has denied that the cheques were
dishonoured and therefore the complainant has to prove that, the
cheques are dishonoured. I have perused the decision of Hon’ble
Bombay High Court in Smt. Vandana W/o. Akhilesh Pandey V/s. Smt.
Abhilasha W/o. Anil Pande, Criminal Appeal No. 360 of 2017, decided
on 08/08/2018. It has held that,
“17. Analysis of the provisions of the said Act, particularly Sections
138, 142 and 142 and 146 thereof, shows that cognizance of the
offence under Section 142 of the said Act could not have been taken
by the Court in the present case because the basic fact of dishonour
of cheque could not be proved by the appellant. The appellant failed
to prove dishonour of cheque by any mode other than the one
provided under Section 146 of the said Act. The memo of return of
cheque in the present case admittedly did not bear official mark of
the Bank, due to which presumption in favour of the appellant did
not arise. Therefore, the complaint in the present case was correctly
rejected by the trial Court, thereby acquitting the respondent.”
Perusal of Section 146 of N.I.Act and the above referred decision,
it makes clear that, once the cheque returned memo bears officially
mark then the presumption U/s. 146 of N. I. Act raises about the cheque
returned memo. In the case in hand, the cheque returned memos filed
at article C to E do not bears official marks and therefore, these cheques
returned memos do not have presumptive value. In the case in hand,
the complainant did not examine the banker nor filed the copy of
cheque returned memos which bears the official mark. Further, I have
perused the statement of accused recorded U/s. 313 of the Code of
Criminal Procedure wherein the following question in respect of cheque
returned memos was asked:-
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Q.4. It has further come in his evidence that, complainant
deposited above said cheques at his banker, but it was returned
dishonoured with reason “Funds Insufficient”. What you have
to say about it?
Ans.: It is false.
25. Perusal of the above question and answer it seems that, in
the statement recorded U/s. 313 of Code of Criminal Procedure the
accused has denied the dishonoured of cheques. Therefore, as per the
decision of Hon’ble Bombay High Court in the case of Vandana Pandey
(Cited supra), the complainant has to prove that the cheques were
dishonoured with reason “Funds Insufficient” but in the case in hand,
the complainant has filed the cheque returned memos at Article-C to E
which do not bear official mark and therefore these cheque returned
memos do not have presumptive value. Further, the complainant did
not examine the banker nor filed the cheque returned memos which
have official mark. Therefore, the complainant failed to prove that, the
cheques were dishonoured with reason “Funds Insufficient”.
Consequently, point No. 2 is answered in the “Negative”.
As to Point Nos. 3 and 4 :-
26. As per evidence of Mr. Shahbaz Khan (C.W.1), after
dishonor of cheques (Exh. 22 to 24), he issued demand notice dated
27/03/2018 (Exh. 25). The complainant has filed postal receipt at Exh.
26 and A. D. Card at Exh. 27 to show that, the notice was issued on the
correct address of the accused. In support of said contention, the
complainant produced demand notice dated 27/03/2018 (Exh. 25),
postal receipt (Exh. 26) and A. D. Card (Exh. 27). Upon perusal of
demand notice (Exh. 25), postal receipt (Exh. 26) and A. D. Card (Exh.
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27), it is seen that, the complainant issued demand notice on
27/03/2018 to the accused and same was received by the accused. The
demand notice was sent on the following address :-
To,
Mr. Amjad M. Shaikh.
KGN Transport,
Sagar Compound,
Near Idgah Maidan, Virar (E),
Thane (Now Palghar).
27. Accused nowhere challenged his aforesaid residential
address. It seems from the postal receipt at Exh. 26 and A. D. card at
Exh. 27 that, the said notice was delivered on the correct address of
accused. Therefore, there is no hurdle to held that complainant sent
demand notice on the correct address of accused. Here, it is necessary
to mention the observations given by Hon'ble Supreme Court of India
in case of C. C. Alavi Haji V/s. Palapetty Muhammeed and anr reported
in All MR (Cri.) 2007. Wherein it is observed by Hon'ble Supreme Court
of India that,
“15. Insofar as the question of disclosure of necessary particulars
with regard to the issue of notice in terms of proviso (b) of Section
138 of the Act, in order to enable the Court to draw presumption
or inference either under Section 27 of the G.C. Act or Section 114
of the Evidence Act, is concerned, there is no material difference
between the two provisions. In our opinion, therefore, when the
notice is sent by registered post by correctly addressing the drawer
of the cheque, the mandatory requirement of issue of notice in
terms of Clause (b) of proviso to Section 138 of the Act stands
complied with. It is needless to emphasise that the complaint must
contain basic facts regarding the mode and manner of the issuance
of notice to the drawer of the cheque. It is well settled that at the
time of taking cognizance of the complaint under Section 138 of
the Act, the Court is required to be prima facie satisfied that a case
under the said Section is made out and the aforenoted mandatory
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statutory procedural requirements have been complied with. It is
then for the drawer to rebut the presumption about the service of
notice and show that he had no knowledge that the notice was
brought to his address or that the address mentioned on the cover
was incorrect or that the letter was never tendered or that the
report of the postman was incorrect. In our opinion, this
interpretation of the provision would effectuate the object and
purpose for which proviso to Section 138 was enacted, namely, to
avoid unnecessary hardship to an honest drawer of a cheque and
to provide him an opportunity to make amends.
17. It is also to be borne in mind that the requirement of giving of
notice is a clear departure from the rule of Criminal Law, where
there is no stipulation of giving of a notice before filing a
complaint. Any drawer who claims that he did not receive the
notice sent by post, can, within 15 days of receipt of summons
from the court in respect of the complaint under Section 138 of the
Act, make payment of the cheque amount and submit to the Court
that he had made payment within 15 days of receipt of summons
(by receiving a copy of complaint with the summons) and,
therefore, the complaint is liable to be rejected. A person who does
not pay within 15 days of receipt of the summons from the Court
along with the copy of the complaint under Section 138 of the Act,
cannot obviously contend that there was no proper service of
notice as required under Section 138, by ignoring statutory
presumption to the contrary under Section 27 of the G.C. Act and
Section 114 of the Evidence Act. In our view, any other
interpretation of the proviso would defeat the very object of the
legislation. As observed in Bhaskarans case (supra), if the giving of
notice in the context of Clause (b) of the proviso was the same as
the receipt of notice a trickster cheque drawer would get the
premium to avoid receiving the notice by adopting different
strategies and escape from legal consequences of Section 138 of
the Act.”
In the matter in hand also, as discussed earlier, it is duly
established that the complainant sent demand notice on the correct
address of accused. As observed by Hon’ble Supreme Court of India in
the case of
C. C. Alavi Haji V/s. Palapetty Muhammeed and anr. (cited
supra), when the notice is sent by registered post by correctly
addressing the drawer of the cheque, the mandatory requirement of
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issue of notice in terms of Clause (b) of proviso to Section 138 of the
Act stands complied with. Therefore, in matter in hand, the compliance
of Section 138(b) of the Act stands complied with by the complainant.
28. It is seen from the record that, the notice (Exh. 25) was
posted on 02/04/2018 to the accused and so, it is seen to be sent within
30 days of dishonor of cheque. As discussed earlier, notice was duly
served upon the accused. It is not defence of the accused that he
repaid the cheque amount within 15 days of notice and summons of this
proceeding. So, point Nos. 3 and 4 are answered in the “affirmative”.
As to Point No.5 :
29. In view of the above discussion, it reveals that the essential
ingredients of the offence punishable u/s 138 of the Act are not proved
by the complainant. As already discussed in earlier points, it does not
becomes clear from memos (Article C to E) that the cheques (Exh. 22 to
24) were dishonored on 20/03/2018 and 21/03/2018. The notice (Exh.
25) was sent on 02/04/2018 and so, it is seen to be issued within 30
days of dishonor of cheques (Exh. 22 to 24). Therefore, the accused has
to pay cheque amount within fifteen days from 02/04/2018 but accused
failed to pay it. Therefore, the cause of action for this complaint was
arose on 18/04/2018. The complainant has to file complaint with 30
days from the day of cause of action. The complaint was filed on
02/05/2018. Therefore, the complaint is seen to be filed within
limitation.
30. In the case in hand, while discussing point no. 2 I held that,
complainant has failed to prove that cheques were dishonoured with
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CNR No. : MHMM19-008939-2018
reason “funds insufficient”. Therefore, though the complaint is filed
within limitation, then also the complainant has failed to prove that
cheques were dishonoured. Therefore, the complainant has failed to
prove that, the accused has committed an offence punishable u/s 138 of
the Act. Consequently, point No. 5 is answered in the “negative”.
As to Point No.6:
31. In view of entire evidence of the complainant, he has failed
to prove cheques were dishonoured. It becomes clear that the
complainant has failed to prove that, accused has committed an offence
punishable u/s 138 of the Act. Consequently, point No. 1, 2 and 5 are
answered in the “Negative”. Resultantly, following order is passed:
ORDER
1. The accused Mr. Amjad M. Shaikh is hereby acquitted
under Section 255 (1) of the Criminal Procedure
Code, 1973 for an offence punishable under Section
138 of the Negotiable Instrument Act,1881.
2. The bail bond of accused stands canceled.
3. Muddemal being an original cheque and bank memo,
be returned to the complainant after appeal period is
over.
4. Accused is hereby directed to furnish personal
bond of Rs. 15,000/- and surety of like amount to
appear before Hon'ble Appellate Court, in case of
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19 C. C. NO. 2007/SS/2018
CNR No. : MHMM19-008939-2018
appeal filed by the prosecution, according to Section
437-A of the Code of Criminal Procedure, 1973.
(Dictated & Pronounced in the open court)
Mumbai (Y. P. Pujari )
Date:- 24/03/2026 Metropolitan Magistrate
48th Court, Andheri, Mumbai.
Dictated On : 24/03/2026
Typed On : 24/03/2026
Signed On : 24/03/2026
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