Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. NO. 3611/SS/2018
CNR No. : MHMM19-009807-2018
Received On : 07/09/2018
Registered On : 07/09/2018
Decided On : 27/03/2026
Duration :Y-07, M-06, D-20
IN THE COURT OF METROPOLITAN MAGISTRATE, ANDHERI (Court
No. 48), MUMBAI.
( Presided over by Y. P. Pujari )
C.C. No. 3611/SS/2018 Exh. 81
Mr. Jayant Ganshyam Goyal.
Age : 48 years, Occu : Indian Inhabitant,
Sole Proprietor of M/s. Hryday Enterprises.
Having office at Shop No. 3, Lorik Yadav
Premises, Santosh Nagar, Scout Camp
Road, Behind Cafe City Corner,
Off. Link road, Behram Baug,
Jogeshwari (W), Mumbai – 400 102 -- Complainant
Versus
Smt. Shubhada Pradeep Apte.
Sole Prop. Of M/s. Ratnakar Trading Co.,
Block No. 201, Vinay Raj Co-Operative
Housing Society Ltd., Tejpal Scheme Road
No. 5, Vile Parle East, Mumbai – 400 059. -- Accused
OFFENCE PUNISHABLE UNDER SECTION 138 OF THE NEGOTIABLE
INSTRUMENTS ACT
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Appearance:- Adv. Mr. Yatin Shah for the complainant.
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Adv. Mr. Subhadh Pathak for the accused.
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JUDGMENT
(Delivered on 27th 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 a cheque for an amount of Rs.
7,92,090/-.
The brief facts of complainant's case are as under:
02. It is averred by the complainant that, complainant is the
sole proprietor of M/s. Hryday Enterprises. Accused is a sole proprietor
of M/s. Ratnakar Trading Company. Accused has placed order for M. D.
Fusible Interlinks and non- woven Fabrics. As per the order of the
accused, the complainant has sold and delivered the M. D. Fusible
Interlinks and non- woven Fabrics to the accused and raised invoices.
The amount of Rs. 7,98,810/- is due from the accused.
03. Complainant has further submitted that, towards the part
discharge of debt and liability payable by accused to the complainant
for goods purchased, the accused had issued cheque bearing No.
000158 dated 10/07/2018 for Rs. 7,92,090/- drawn on RBL Bank Ltd.,
Vile Parle Branch, Mumbai in favour of complainant. Thereafter, the
complainant deposited the above said cheque for encashment in his
bank namely Bank of Maharashtra, Versova Branch, Mumbai. The same
were returned unpaid from drawee bank with endorsement “Funds
Insufficient”. Accordingly, the Bank of Maharashtra issued memo dated
12/07/2018. Thereafter, he contacted the accused and requested to pay
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cheque amount but the accused intentionally not paid said amount.
Thereafter, he issued demand notice dated 30/07/2018 to accused. The
notice was duly served on the 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. 08 which were
read over and explained to the accused in vernacular, to which she
pleaded not guilty and claimed to be tried.
05. Accused has conducted the cross-examination of the
complainant in which she has raised following defences:-
a) The complainant did not prove the transaction.
b) The goods were not delivered to the accused.
c) The complainant has not shown the VAT amount
was paid by him.
d) Cheque was issued for security purpose.
e) 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.
59. In her statement U/s. 313 of the Code, accused has submitted that,
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Cheque was issued for security purpose. She used to purchase goods
from complainant in a small quantity and small amount. She never
purchased goods for huge amount from complainant. False complaint
has filed.
07. Heard Ld. Advocate Shri. Yatin Shah for complainant and
Ld. Advocate Shri. Subhodh Pathak for accused and also perused and
considered the written notes of argument filed by both parties at Exh.
80 and 79.
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.
000158 (Exh. 33) was drawn by accused for
legally recoverable debt or other liability?
Yes.
2.
Does the complainant prove that the said
cheque returned unpaid for the reason “Funds
Insufficient”?
Yes.
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 ?
Yes.
6. What order? The accused
is convicted.
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09. In order to prove his case, the complainant has filed his
evidence affidavit as a (C.W.1) at Exh. 12 and also filed additional
evidence affidavit at Exh. 48. The complainant also placed his reliance
upon following documents:
Description of documents Exhibit numbers
7 invoices Exh. 17 to 23
9 delivery challans Exh. 25 to 32
Original cheque Exh. 33
Cheque returned memo Exh. 34
Office copy of demand notice Exh. 35
Postal receipt Exh. 36
Postal track report Article- A
5 invoices along with 4 Eway Bills Exh. 49 to 53
Letter dated 05/10/2021 issued by Talco
Textile to the complainant
Exh. 54
Eway bill along with certificate U/s. 65 (B)
of Evidence Act
Exh. 55
Ledger account Exh.56
A. D. Card Exh. 57
Accused has examined three witnesses in her defence namely
Sudhir Naik as a (D.W.1) at Exh. 62, Anil Kale as a (D.W.2) at Exh. 66
and Ashish Dilip Gaikwad as a (D.W. 3) at Exh. 68 .
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. 12. As per his evidence, complainant is the sole proprietor of M/s.
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Hryday Enterprises. Accused is a sole proprietor of M/s. Ratnakar
Trading Company. Accused has placed order for M. D. Fusible Interlinks
and non- woven Fabrics. As per the order of the accused, he has sold
and delivered the M. D. Fusible Interlinks and non- woven Fabrics to
the accused and raised invoices. The amount of Rs. 7,98,810/- is due
from the accused.
11. It has further come in his evidence that, towards the part
discharge of debt and liability payable by accused to him for goods
purchased, the accused had issued cheque bearing No. 000158 dated
10/07/2018 for Rs. 7,92,090/- drawn on RBL Bank Ltd., Vile Parle
Branch, Mumbai in his favour. Thereafter, he deposited the above said
cheque for encashment in his bank namely Bank of Maharashtra,
Versova Branch, 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 her cross-examination, the accused has raised defences
that,
a) The complainant did not prove the transaction.
b) The goods were not delivered to the accused.
c) The complainant has not shown the VAT amount
was paid by him.
d) Cheque was issued for security purpose.
e) Accused is not liable to pay the cheque
amount.
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13. Before adverting towards of 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. Vasantha Kumar 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.
” The Hon’ble
Supreme Court of India in Uttam Ram V/s. Devinder Singh Hudan &
Anr., Criminal Appeal No. 1545 of 2019, decided on 17/10/2019. It has
held that,
“19. A negotiable instrument including a cheque carries presumption
of consideration in terms of Section 118 (a) and under Section 139 of
the Act. Section 118 (a)and 139 read as under:
“118. Presumptions as to negotiable instruments.- Until the contrary is
proved, the following presumptions shall be made:--
(a) of consideration —that every negotiable instrument was made or
drawn for consideration, and that every such instrument, when it has
been accepted, indorsed, negotiated or transferred, was accepted,
indorsed, negotiated or transferred for consideration;….
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139. Presumption in favour of holder.—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.”
I have perused the decision of Hon’ble Supreme Court of India in K . N.
Beena V/s. Muniyappan, 2001 SCC-8-458. It has held that,
“In our view the impugned Judgment cannot be sustained at all. The
Judgment erroneously proceeds on the basis that the burden of proving
consideration for a dishonored cheque is on the complainant. It appears that
the learned Judge had lost sight of Section 118 and 139 of the Negotiable
Instruments Act. Under Section 118, unless the contrary was proved, it is to
be presumed that the Negotiable Instrument (including a cheque) had been
made or drawn for consideration. Under Section 139 the Court has to
presume, unless the contrary was proved, that the holder of the cheque
received the cheque for discharge, in whole or in part, of a debt or liability.
Thus in complaints under Section 138 , the Court has to presume that the
cheque had been issued for a debt or liability. This presumption is rebutable.
However the burden of proving that a cheque had not been issued for a debt
or liability is on the accused. This Court in the case of Hiten P. Dalal vs.
Bratindranath Banerjee reported in (2001) 6 S.C.C. 16 has also taken an
identical view.”
The Hon’ble Supreme Court of India in K. Bhaskaran V/s.
Sankaran Vaidhyan Balan & Anr., 1999 (8) Supreme 608 has held that,
“As the signature in the cheque is admitted to be that of the
accused, the presumption envisaged in Section 118 of the Act can
legally be inferred that the cheque was made or drawn for
consideration on the date which the cheque bears. Section 139 of the
Act enjoins on the Court to presume that the holder of the cheque
received it for the discharge of any debt or liability. The burden was on
the accused to rebut the aforesaid presumption. The Trial Court was
not persuaded to rely on the interested testimony of DW-1 to rebut the
presumption. The said finding was upheld by the High Court. It is not
now open to the accused to contend differently on that aspect.”
In the present case, the accused has not sent reply to the demand
notice of the complainant. The accused has conducted the cross-
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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 her 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 signature from cheque (Exh. 33). This shows that, the
signature of accused from cheque (Exh. 33) 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. I have perused the decision of Hon’ble Supreme Court of
India in Kaliram V/s. State of Himachal Pradesh, 1973 (2) SCC 808. It
has held that,
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“One of the cardinal principles which has always to be kept in view
in our system of administration of justice for criminal cases is that a person
arraigned as an accused is presumed to be innocent unless that presumption
is rebutted by the prosecution by production of evidence as may show him to
be guilty of the offence with which he is charged. The burden of proving
the guilt of the accused is upon the prosecution and unless it relieves itself
of that burden, the courts cannot record a finding of the guilt of the
accused. There are certain cases in which statutory presumptions arise
regarding the guilt of the accused but the burden even in those cases is
upon the, prosecution to prove the existence of facts which have to be
present before the presumption can be drawn. Once those facts are shown by
the prosecution to exist the court can raise the statutory presumption and it
would, in such an event, be for the accused to rebut the presumption. The
onus even in such cases upon the accused is not as heavy as is normally
upon the prosecution to prove the guilt of the accused. If some material is
brought on the record consistent with the innocence of the accused which
may reasonably be true, even though it is not positively proved to be true,
the accused would be entitled to acquittal.”
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
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
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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
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,
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“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 her signature on the cheque
(Exh. 33), 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.
b) The goods were not delivered to the accused.
c) The complainant has not shown the VAT amount
was paid by him.
d) Cheque was issued for security purpose.
e) Accused is not liable to pay the cheque
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amount.
The statement of accused under Section 313 of the Code is recorded
wherein she submitted that cheque was issued for security purpose.
She used to purchase goods from complainant in a small quantity and
small amount. She never purchase goods for huge amount from
complainant. False complaint has filed.
19. So far as the first defence of the accused is concerned, the
accused has submitted that, the complainant did not file any document
to prove the transaction. Ld. advocate for the accused has submitted
that, the complainant is require to prove the transaction. I have
perused the decision of Hon’ble Supreme Court of India in the case of
Rangappa’s Case (Cited supra) and perusal of it makes clear that, once
the accused has admitted her signatures on the cheque and issuance of
cheques then presumption U/s. 118 and 139 of N. I. Act arises in favour
of complainant. I have also perused the decision of Hon’ble Supreme
Court of India in the case of Sanjabij Tari V/s. Kishore S. Borcar & Anr.,
Criminal Appeal No. 1755 of 2010, decided on 25/09/2025. It has held
that,
“This Court also takes judicial notice of the fact that some District
Courts and some High Courts are not giving effect to the
presumptions incorporated in Sections 118 and 139 of NI Act and
are treating the proceedings under the NI Act as another civil
recovery proceedings and are directing the complainant to prove the
antecedent debt or liability. This Court is of the view that such an
approach is not only prolonging the trial but is also contrary to the
mandate of Parliament, namely, that the drawer and the bank must
honour the cheque, otherwise, trust in cheques would be irreparably
damaged.”
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20. Perusal of the above cited decision, it makes clear that,
once the accused has admitted, her signature and issuance of cheques,
then burden lies on the accused to rebut the presumption arises U/s.
118 and 139 of Negotiable Instruments Act. In the case in hand, the
burden lies on the accused to rebut the presumption because the
accused did not deny her signature nor denied issuance of cheque. The
burden is on the accused to rebut the presumption and therefore it is
necessary to produce the evidence of the parties brought on record to
rebut the presumption.
21. In the case in hand, the accused has conducted detail cross-
examination of the complainant wherein the accused has asked
question in respect of transaction. Ld. Advocate for the accused has
submitted that the complainant did not file the copy of order placed by
the accused. It is further the submission of the Ld. Advocate for accused
that, except the invoice at Exh. 17, other invoices are handwritten. I
have perused the documents filed by the complainant and it seems that,
the complainant has filed the tax invoices at Exh. 17 to 23 to show that,
the amount is outstanding against the accused. The complainant has
also filed the delivery challens at Exh. 25 to 32. The complainant has
also filed the ledger account at Exh. 56. Perusal of these documents, it
seems that, the complainant has filed the document to show the
outstanding amount.
22. Ld. Advocate for the accused has submitted that, the
complainant has not filed any document to show that, the goods were
delivered to the accused. It seems from the record that the accused has
conducted a detail cross-examination of the complainant in respect of
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delivery of goods. The accused has examined Sudhir Naik (D.W.1) at
Exh. 62. This witness is examined by the accused to prove how the
goods are not delivered to the accused. This witness is a tempo driver.
I have perused the evidence of this witness but it seems that, this
witness doesn’t support to the defence of the accused and therefore, the
questions which usually asked in the cross-examination are permitted to
be asked to this witness. But then also, nothing has been brought on
record which supports the defence of the accused.
23. The accused has also examined Anil Kale (D.W.2) at Exh.
66 who is the sales manager in Talreja Textiles Industries Pvt. Ltd. As
per his evidence, the invoice at Exh. 49 was sent by his company to the
customer along with material. The invoice at Exh. 49 is the copy of
customer. Further, the invoice at Exh.50 to 53 are also shown to this
witness and as per his evidence, these are the copies of customer issued
by his company. The accused wants to show that the complainant did
not purchase any material from the Talreja Textiles Industries Ltd. It is
the case of complainant that, he has purchased the goods from Talreja
Textile Industries Ltd. and it was sold to the accused. As per my view, it
is not necessary for the complainant to prove from whom he has
purchased the goods, because the complainant has to only show and
prove that the goods were sold by him to the accused. Because
otherwise it becomes unending to show from whom the goods were
purchased.
24. The accused has also examined Ashish Dilip Gaikwad at
Exh. 68 (D.W.3). As per his evidence, he is having 3 wheeler, 4 wheeler
such as TATA, Appe. In 3 wheelers it is permitted to carry goods of the
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400 kg. It has come in his evidence that, if said vehicle is loaded with
goods having weight of 800 kg and more then vehicle will not be able to
carry it. The said witness is also examined to show that the goods has
claimed by the complainant were not delivered to the accused. I have
perused the decision of Hon’ble Supreme Court of India in P. Rasiya V/s.
Abdul Nazer and Anr. Criminal appeal Nos. 1233-1235 of 2022 (Arising
out of SLP (Cri) no. 7430-7432 of 2022). It has been observed in para
no. 7 that,
“ 7. Feeling aggrieved and dissatisfied with the judgment and orders
passed by the Appellate Court affirming the conviction of the accused
under Section 138 of the N.I. Act, the accused preferred three
different Revision Applications before the High Court. By the impugned
common judgment and order, the High Court has reversed the
concurrent findings recorded by both the courts below and has
acquitted the accused on the ground that, in the complaint, the
Complainant has not specifically stated the nature of transactions and
the source of fund. However, the High Court has failed to note the
presumption under Section 139 of the N.I. Act. As per Section 139 of
the N.I. Act, 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 discharge, in whole or in part, of any debt or other
liability. Therefore, once the initial burden is discharged by the
Complainant that the cheque was issued by the accused and the
signature and the issuance of the cheque is not disputed by the accused,
in that case, the onus will shift upon the accused to prove the contrary
that the cheque was not for any debt or other liability. The presumption
under Section 139 of the N.I. Act is a statutory presumption and
thereafter, once it is presumed that the cheque is issued in whole or in
part of any debt or other liability which is in favour of the
Complainant/holder of the cheque, in that case, it is for the accused to
prove the contrary. The aforesaid has not been dealt with and
considered by the High Court. The High Court has also failed to
appreciate that the High Court was exercising the revisional jurisdiction
and there were concurrent findings of fact recorded by the courts
below.”
In the case in hand, the complainant has filed the invoices at Exh.
17 to 23 and delivery challens at Ex. 25 to 32. Further, it seems from
the record that, the accused did not reply to the demand notice. I have
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perused the decision of Hon’ble Supreme Court of India in the case of
Sanjabij Tari’s case (Cited Supra). It has held that,
“29. Furthermore, the fact that the accused has failed to reply to the
statutory notice under Section 138 of the NI Act leads to an inference
that there is merit in the Appellant-Complainant’s version. This Court in
Tedhi Singh vs. Narayan Dass Mahant, (2022) 6 SCC 735 has held that
the accused has the initial burden to set up the defence in his reply to the
demand notice that the complainant did not have the financial capacity
to advance the loan. The relevant portion of the” said judgment is
reproduced hereinbelow:-
“10. … The proceedings under Section 138 of the NI Act is not a civil
suit. At the time, when the complainant gives his evidence, unless a
case is set up in the reply notice to the statutory notice sent, that the
complainant did not have the wherewithal, it cannot be expected of
the complainant to initially lead evidence to show that he had the
financial capacity. To that extent, the courts in our view were right in
holding on those lines. However, the accused has the right to
demonstrate that the complainant in a particular case did not have
the capacity and therefore, the case of the accused is acceptable
which he can do by producing independent materials, namely, by
examining his witnesses and producing documents. It is also open to
him to establish the very same aspect by pointing to the materials
produced by the complainant himself. He can further, more
importantly, achieve this result through the cross-examination of the
witnesses of the complainant. Ultimately, it becomes the duty of the
courts to consider carefully and appreciate the totality of the evidence
and then come to a conclusion whether in the given case, the accused
has shown that the case of the complainant is in peril for the reason
that the accused has established a probable defence. (emphasis
supplied)
30. This Court in MMTC Ltd. and Another vs. Medchl Chemicals &
Pharma (P) Ltd. and Another, (2002) 1 SCC 234 has specifically held
that when a statutory notice is not replied, it has to be presumed that
the cheque was issued towards the discharge of liability.”
The accused did not reply to the demand notice and he has not
taken any defence about the non-delivery of goods. The accused ought
to have sent the reply to the demand notice and ought to have raised
defence about the delivery of goods. Further, as per the defence of
accused, the cheque was issued as a security. Admittedly, the accused
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did not reply to the demand notice and did not taken defence of
security. Further, the accused did not sent any other notice or written
communication to the complainant to demand of return of cheque.
25. It is the another defence of accused that, the cheques were
given to the complainant as a security and complainant has misused the
cheques. Ld. Advocate for the accused has submitted that, the cheque
was issued for security purpose cannot be used to recover the due
amount. He placed reliance on the decision of Hon’ble Bombay High
Court in the case of Purshottam Maniklal Gandhi V/s. Manohar K.
Deshmukh, 2007 (2)Bom.C.R. (Cri.)38. I have perused the cited
decision. He has also placed reliance on the decision of Hon’ble
Supreme Court of India in Indus Airways Pvt. Ltd. & Ors. V/s. Magnum
Aviation Pvt. Ltd. & Anr., Criminal Appeal No. 830 of 2014 (Arising out
of SLP (Crl.) No. 9752 of 2070), decided on 07/04/2014. It has
observed that,
“ If a cheque is issued as an advance payment for purchase of goods
and for any reason purchase order is not carried to its logical
conclusion either because of its cancellation or otherwise and material
or goods for which purchase order was placed is not supplied by
supplier, in Court considered view, cheque cannot be said to have
been drawn for an existing debt or liability.”
He has placed reliance on the decision of Hon’ble Bombay High Court
(Napgur Bench) in case of M/s. Pioneer Drip Systems Pvt. Ltd. V/s. M/s.
Jain Irrigation Systems Ltd. Criminal Writ Petition No. 701 of 2009,
decided on 17/12/2009. It has held that,
“19. Thus in my considered opinion, whenever blank cheque or
post dated cheque is issued a trust is reposed that the cheque will be
filed in or used as per the understanding or agreement between parties.
If there is prima facie reason to believe that said trust is not honoured
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then continuation of prosecution under Section 138 of the Negotiable
Instruments Act would be abuse of process of law. It is in the interest of
justice that parties in such case are left to Civil remedy. In this case, in
the facts and circumstances narrated above, in my opinion, this petition
should succeed. ”
Ld. Advocate for the complainant submitted that, though the cheque
was issued for security purpose, then also it can be used to recover the
due amount. I have also perused the decision of Hon’ble Supreme Court
of India in Birsingh V/s. Mukesh Kumar, 2019 (4) SCC 197 has held
that, “the cheque duly signed and voluntarily made over the payee, was
in discharge of debt or liability arise irrespective of whether cheque was
post dated or blank cheque for filing by payer or any other person, in
absence of evidence of undue influence or coercion.”. I have also
perused the decision of Hon’ble Supreme Court of India in Sripati Singh
V/s. State of Jharkhand (Criminal Appeal No. 1269 -1270 of 2021, it
has held that,
“a cheque issued as a security pursuant to a financial transaction
cannot be considered as a worthless piece of paper under every
circumstances. ‘Security’ in its true sense is the state of being safe and
the security given for a loan is something given as a pledge of
payment. It is given, deposited or pledged to make certain the
fulfillment of an obligation to which the parties to the transaction are
bound. If in a transaction, a loan is advanced and the borrower
agrees to repay the amount in a specified time frame and issues a
cheque as security to secure such repayment; if the loan amount is not
repaid in any other form before the due date or if there is no other
understanding or agreement between the parties to defer the payment
of amount, the cheque which is issued as security would mature for
presentation and the drawee of the cheque would be entitled to
present the same. On such Presentation, if the same is dishonoured,
the consequences contemplated under Section 138 and the other
provisions of N. I. Act would flow.”
Perusal of above decision, it seems that, the cheques issued for
security purpose can be used to recover the amount when the legally
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enforceable debt is due from the accused. In the case in hand also it has
come on record that amount is due from the accused.
26. Perusal of the evidence of both the parties, it seems that,
the accused has admitted that there was transaction between her and
complainant but it is her defence that, she has not taken the goods as
alleged by complainant. In other words, it is the defence of accused
that she has not obtained such huge amount of goods from the
complainant nor it was delivered to her. As per my view, the
complainant has filed the tax invoices on record. Further, accused did
not reply to the demand notice nor made any communication to the
complainant about non-delivery of goods nor demanded nor made
communication to return the cheque. All these facts shows that, there
was a transaction between accused and complainant and the cheque
was given for legally enforceable debt.
27. Ld. Advocate for the accused has submitted that, the
complainant did not file any document to show that, the VAT amount
was paid by him on the sold goods. Ld. Advocate for the complainant
has submitted that, there is no need to file the VAT document because
the said fact is between the VAT authority and the complainant.
Admittedly, paying of VAT is a fact in between the VAT authority and the
complainant. Therefore, non-filing of these documents does not affect
on present case.
28. Ld. Advocate for the accused has submitted that, it is not
necessary for the accused to enter into witness box to rebut the
presumption. He has placed his reliance on the decision of Hon’ble
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Supreme Court of India in Basalingappa V/s. Mudibassappa, Criminal
Appeal No. 636 of 2019, decided on 09/04/2019. It has held that,
“23. We having noticed the ratio laid down by this Court in above cases
on Sections 118(a) and 139, we now summarise the principles
enumerated by this Court in following manner:-
(i) Once the execution of cheque is admitted Section 139 of the Act
mandates a presumption that the cheque was for the discharge of any
debt or other liability. (ii) The presumption under Section 139 is a
rebuttable presumption and the onus is on the accused to raise the
probable defence. The standard of proof for rebutting the presumption
is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely on
evidence led by him or accused can also rely on the materials submitted
by the complainant in order to raise a probable defence. Inference of
preponderance of probabilities can be drawn not only from the materials
brought on record by the parties but also by reference to the
circumstances upon which they rely.
(iv) That it is not necessary for the accused to come in the witness box in
support of his defence, Section 139 imposed an evidentiary burden and
not a persuasive burden.
(v) It is not necessary for the accused to come in the witness box to
support his defence. ”
Admittedly, there is no need for the accused to enter into witness box
to rebut the presumption and he can rebut it by cross examination or
other witnesses.
29. Ld. Advocate for the accused has submitted that, when the
accused rebutted the presumption available U/s. 118 and 139 of N. I.
Act, then accused is entitled for acquittal. He has placed reliance on the
decision of Hon’ble Madras High Court in case of S. Balamani V/s.
Vijayashanthi, Crl. R. C. No. 1080 of 2008, decided on 23/07/2015. It
has held that,
“ The Hon’ble Supreme Court and this court in many number
of cases held that if the complainant fails to discharge his or
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her burden relating to payment of money, then the
presumption is that the cheque issued by the complainant was
not for discharge of any legally enforceable debt or liability
and consequently, the complaint under Section 138 of the
Negotiable Instruments Act is not maintainable. In the present
case, as mentioned abvoe, when the complainant did not prove
the manner in which the amount was allegedly paid to the
petitioner/accused, the complaint is liable to be dismissed on
the ground that, the complaint has not discharged her initial
burden of proof relating to payment of money. ”
In the case in hand, as I discussed above the accused has
not brought on record any material by way of cross-examination or in
the statement of 313 of the Code. Therefore, it becomes clear that the
accused has utterly failed to rebut the presumption raised under Section
118 & 139 of the Act. Therefore, I hold that the complainant has duly
proved that accused has issued the subject cheque from her account in
favour of the complainant towards the legally enforceable debt. Hence,
point No. 1 is answered in the “affirmative”.
As to Point No. 2:-
30. As per contentions and evidence of complainant, the
cheque No. 000158 (Exh. 33) was presented for encashment. However,
the cheque was returned with remark as ‘Funds Insufficient’. In support
of said contentions, the complainant produced the cheque return memo
of (Exh. 34). It is seen from the bank memo (Exh. 34) that, the cheque
was returned with endorsement ‘Funds Insufficient’. The memo (Exh.
34) bears seal and signature of concerned bank. Therefore, here it is
necessary to mention Section 146 of the Negotiable Instruments Act;
“
The Court shall, in respect of every proceeding
under this Chapter, on production of bank's slip or memo
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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”.
31. So, as per the aforesaid provision, the bank memo (Exh.
34), is having presumptive value as per Section 146 of the N.I Act.
Admittedly, the said presumption is rebuttable. However, nothing is
brought on record by the accused to rebut the presumption in respect of
bank memo (Exh. 34). After perusal of said memo, it is seen that the
cheque No. 000158 (Exh. 33) was dishonored for reason ‘Funds
Insufficient’. However, nothing is brought by the accused on record to
show her bonafide as well as also to show that at the relevant time, the
amount mentioned in the cheque was pending in her account. Hence,
no hurdle to held that the cheque was dishonored with reason ‘Funds
Insufficient’. Consequently, point No. 2 is answered in the “affirmative”.
As to Point Nos. 3 and 4 :-
32. As per evidence of Mr. Jayesh Goyal (C.W.1), after dishonor
of cheque (Exh. 33), he issued demand notice dated 30/07/2018 (Exh.
35). The complainant has filed postal receipt at Exh. 36 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
30/07/2018 (Exh. 35) and postal receipt (Exh. 36). Upon perusal of
demand notice (Exh. 35), postal receipt (Exh. 36), it is seen that, the
complainant issued demand notice on 30/07/2018 to the accused. The
demand notice was sent on the following address :-
To,
Smt. Shubhada Pradeep Aapte.
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Sole Proprietor of M/s. Ratnakar Trading Co.,
Block No. 201, Vinay Raj Co-operative Housing Society Ltd.
Tejpal Scheme Road No. 5, Vile Parle East, Mumbai- 400059.
33. Ld. Advocate for the accused has submitted that, the
complainant has not filed any document to show that, the notice was
duly served to the accused. He submitted that, the demand notice is
required to be served to the accused as per Section 138(b) of Negotiable
Instruments Act. He has placed reliance on the decision of Hon’ble
Tripura Agartala High Court in case of Nabarun Datta V/s. Goutam Roy
Barman, Crl. A. 20 of 2022, decided on 25/07/2023. It has held that,
“24. With regard to the “giving of notice” and “receipt of notice” this
court is of the view that it is amply clear from a bare reading of the
sub-clause of Section 138 of the NI Act that on the part of the payee,
he has to make a demand by „giving a notice in writing. If that was
the only requirement to complete the offence on the failure of the
drawer to pat the cheque amount within 15 days from the date of
such „giving the travails of the prosecution would have been very
much lessened, but the legislature says that failure on the part of the
drawer to pay the amount should be 15 days „of the receipt of the
said notice. It is therefore clear that „giving notice in the context is
not the same as receipt of Notice. Giving is a process of which receipt
is the accomplishment. It is for the payee to perform the former
process by sending the Notice to the drawer in the correct address. If
a strict interpretation is given that the drawer should have actually
received the notice, for the period of 15 days to start running, no
matter that the payee sent the notice on the correct address, a
trickster cheque drawer would get the premium to avoid receiving the
notice by different strategies, and he could escape from the legal
consequences of Section 138 of the Negotiable Instruments Act, 1881.
It is submitted that the Ld. Trial Court ought not to have adopt an
interpretation which helps a dishonest evader and clips an honest
payee, as that would defeat the very legislative measure.”
It seems from the postal receipt at Exh. 36 that, the said notice
was sent on the correct address of accused. As per Section 27 of
General Clauses Act, there is presumption that once the notice is sent on
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the correct address by post, then it is presumed it is duly served.
Further, the complainant has filed the letter issued by accused at Exh.
37, he show that, the notice was served on the 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
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
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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
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.
34. As already discussed in earlier points, it becomes clear that
the subject cheque (Exh. 33) was dishonored on 12/07/2018 for the
reason of ‘Funds Insufficient’. It is seen from the record that, the notice
(Exh. 35) was posted on 30/07/2018 to the accused and so, it is seen to
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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 :
35. In view of the above discussion, it reveals that the essential
ingredients of the offence punishable u/s 138 of the Act are proved by
the complainant. As already discussed in earlier points, it becomes clear
from memo (Exh. 34) that the cheque (Exh. 33) was dishonored on
12/07/2018. The notice (Exh. 35) was sent on 30/07/2018 and so, it is
seen to be issued within 30 days of dishonor of cheque (Exh. 33).
Therefore, the accused has to pay cheque amount within fifteen days
from 30/07/2018 but accused failed to pay it. Therefore, the cause of
action for this complaint was arose on 15/08/2018. The complainant
has to file complaint with 30 days from the day of cause of action. The
complaint was filed on 07/09/2018. Therefore, the complaint is seen to
be filed within limitation. Hence, in view of entire evidence of the
complainant and failure of the accused to rebut presumptions given
under Section 118 and 139 of the Act, it becomes clear that the accused
has committed an offence punishable u/s 138 of the Act. Consequently,
point No. 5 is answered in the “affirmative”.
AS TO POINT NO.6
36. Taking into consideration answer of points Nos. 1 to 5, it
becomes clear that, the complainant has duly proved his claim with
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cogent evidence against the accused. The offence P/u/s. 138 of the
Negotiable Instruments Act is established against the accused. After
considering the conduct of the accused and nature of offence, I do not
find any special reasons or justifications to extend the benefit of
probation to him vide Section 3 to 5 of the Probation of Offenders Act,
1958. Therefore, the accused is called upon to state on the point of
sentence.
Mumbai (Y. P. Pujari )
Date:- 27/03/2026 Metropolitan Magistrate
48th Court, Andheri, Mumbai.
Hearing on the point of sentence:
37. Accused and her advocate are present. Accused submitted
that, minimum sentence may be awarded. Further, the complainant
and his advocate are present. Ld. advocate for the complainant
submitted that, maximum punishment may be awarded.
38. The object of the Act is to enhance the credibility of the
negotiable instruments. The cheque involved in the case in hand is of
Rs. 7,92,090/-. In the present matter, on 12/07/2018 the disputed
cheque was presented to the drawee bank. If it would have had
encashed regularly, complainant could have received the amount in the
month of July 2018. That amount is admittedly lying with the accused.
Ld. Advocate for the complainant submitted that, maximum
compensation may be allowed. The Hon’ble Supreme Court of India in
the case of
R.Vijayan V. Baby and anthers AIR 2012 SC 528, has
discussed and expressed several aspects to determine the amount of
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compensation and interest on the cheque amount. Para Nos. 14 to 18 of
the above judgment needs to be reproduced here and those are as
under:
“As the provisions of Chapter XVII of the Act strongly
lean towards grant of reimbursement of the loss by way of
compensation, the courts should, unless there are special
circumstances, in all cases of conviction, uniformly exercise
the power to levy fine upto twice the cheque amount
(keeping in view the cheque amount and the simple interest
thereon at 9% per annum as the reasonable quantum of loss)
and direct payment of such amount as compensation.
Direction to pay compensation by way of restitution in
regard to the loss on account of dishonour of the cheque
should be practical and realistic, which would mean not only
the payment of the cheque amount but interest thereon at a
reasonable rate. Uniformity and consistency in deciding
similar cases by different courts, not only increase the
credibility of cheque as a negotiable instrument, but also the
credibility of courts of justice.”
39. After going through above guidelines issued by Hon'ble
Supreme Court of India, it needs to maintain uniformity by awarding 9
% per annum interest on the cheques amount by way of compensation
to the complainant. If interest on cheque amount (Rs. 7,92,090/-) at the
rate of 9 % p.a. is calculated for the period of 90 months i.e. from the
filing of present complaint (07/09/2018 to 27/03/2026), it comes to
Rs. 5,34,661/-. Thus, the amount of Rs. 13,26,751/- is necessary to give
to the complainant as an compensation.
40. The object of the Act is to enhance the credibility of the
negotiable instruments. There is no criminal antecedent of accused
came on record. Thus, after considering said circumstances, amount of
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cheques, nature and manner of the offence, in my opinion, sentence to
suffer simple imprisonment for six months will be proper and justified.
41. Hon'ble Supreme Court of India in the case of
Sugandhi
Sureshkumar Vs. Jagdishan, reported in AIR 2002 SC 681, held that in
case of offences under section 138 of the Act a Magistrate can alleviate
the grievance of the complainant by making resort to Section 357 (3) of
Criminal Procedure Code. In this case Hon’ble Supreme Court of India
also held that the Court may enforce order of compensation by
imposing sentence in default. Resultantly, following order is passed:
ORDER
1. Accused Smt. Shubhada Pradeep Apte, Age : Adult,
is convicted under Section 255 (2) of the Code of
Criminal Procedure, 1973 for an offence punishable
under Section 138 of the Negotiable Instruments Act,
1881 and sentenced to suffer simple Imprisonment
for six months.
2. Accused is directed to pay compensation Rs.
13,26,751/- (Rs. Thirteen Lacs Twenty Six Thousand
Seven Hundred Fifty One Only) to the complainant
within three months from today, in default to suffer
Simple Imprisonment for six months.
3. Accused to surrender to her bail bond.
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4. Muddemal being an original cheque and bank memo,
be returned to the complainant after appeal period is
over.
5. No question of Set-off under Section 428 of the Code
of Criminal Procedure, 1973 as the accused has not
spent any period in the custody during the trial.
6. The copy of this Judgment shall be given to the convicted
accused, free of cost, in view of section 363(1) of the Code
of Criminal Procedure, 1973.
7. Dictated and pronounced in open court.
Mumbai (Y. P. Pujari )
Date:- 27/03/2026 Metropolitan Magistrate
48th Court, Andheri, Mumbai.
Dictated On : 27/03/2026
Typed On : 27/03/2026
Signed On : 27/03/2026
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