Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. No.4404084/SS/2018
Received on : 09.10.2018
Registered on : 09.10.2018
Decided on : 20.09.2025
Duration : 06 Y. 11 M. 11 D.
IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS,
44TH COURT, ANDHERI, MUMBAI.
(Presided over by Dr. Sujitkumar C. Tayde)
C. C. No.4404084/SS/2018
C.N.R.No.MHMM19-014013-2018
Exh. No.
Mrs. Lorraine Marcel Fernandes
Age – 60 Yrs., Occu. - Household,
R/o. Flat No.403,
Raindrop CHS,
A. B. Nair Road, Juhu,
Mumbai – 400 049.
: Complainant
V/s.
Mr. Ajay Vora
Proprietor of Qubik Works
Age - 50 Yrs., Occu . - Business/Service,
Having Office at
Shop No.03, B-5, Sector – 9,
Shanti Nagar, Mira Road,
Mumbai – 401 107.
And
Patel Wadi,
Next to Horison & Novotel Hotel,
Juhu, Mumbai – 400 049.
: Accused
------------------------------------------------------------------------------------------------
Complaint for the offence punishable under Section 138 r/w. 142 of
The Negotiable Instruments Act.
---------------------------------------------------------------------------------------------------
(Sujitkumar C. Tayde)
JMFC, Andheri, Mumbai.
-- 1 of 23 --
2 C. C. No.4404084/SS/2018
-----------------------------------------------------------------------------------------------
Learned advocate for the complainant : Mr.Ramlal Khushwaha
Learned advocate for the accused: Mr. Imam & Shri P. C.
Mishra
------------------------------------------------------------------------------------------------
J U D G M E N T
(Delivered on 20/09/2025)
The accused is alleged to have issued the cheque which was
returned unpaid due to insufficiency of funds in the account maintained
by him. Thus, the accused stands prosecuted for the offence punishable
under Section 138 of the Negotiable Instruments Act, 1881(Hereinafter
it is referred as 'N.I. Act', in short).
The facts of the case lie in a narrow compass as under:-
2. The complainant knows the accused who is proprietor of
M/s. Qubick Works. Having considered the financial stringency of the
accused, the complainant advanced friendly loan of Rs.3,00,000/- to the
accused by way of cheque dated 30/12/2017.
3. In order to discharge the aforesaid legal liability towards
the friendly loan, the accused issued cheque bearing no.008478 on
21/08/2018 for sum of Rs.3,00,000/- in favour of the complainant.
The said cheque in dispute was drawn on Axis Bank, Branch Mira Road,
Mumbai.
4. Having received the said cheque, the complainant
presented the same before her banker, State Bank of India, JVPD
(Sujitkumar C. Tayde)
JMFC, Andheri, Mumbai.
-- 2 of 23 --
3 C. C. No.4404084/SS/2018
Scheme Branch, Mumbai for encashment. But on 27/08/2018, the
banker of the complainant issued the cheque returning memo and
thereby intimated that the cheque in question was returned unpaid due
to insufficiency of fund in the account maintained by the accused.
5. Having got the knowledge about the dishonour of the said
cheque, the complainant sent statutory demand notice on 21/09/2018
by Speed post/R.P.A.D. to the accused. By way of the said notice, the
accused was directed to pay the said amount within the stipulated
period. But the accused did not pay the cheque amount as per directions
given in the statutory demand notice. Thus, in short, according the
complainant, the accused committed offence punishable under section
138 Negotiable Instrument Act by issuing the cheque which was
dishonoured by the bank for want of sufficient fund in the account
maintained by the accused. Hence, the complainant knocked the doors
of this Court by filing the present complaint on hand.
6. The learned predecessor in office issued process against the
accused as per Section 142(a) of the Negotiable Instruments Act. In
response the summons, accused appeared. The contents of particulars
for the offence punishable under section 138 of the Negotiable
Instruments Act were read-over and explained to the accused. The
accused pleaded not guilty and claimed to be tried.
7. In order to prove the guilt of the accused, the complainant
examined herself by way of filing his affidavit in lieu of examination-in-
chief (Exh.No.09) under section 145(1) of the Negotiable Instruments
Act. The complainant also examined Shri Kalpesh Dnyaneshwar Palekar
(Sujitkumar C. Tayde)
JMFC, Andheri, Mumbai.
-- 3 of 23 --
4 C. C. No.4404084/SS/2018
(P.W.2) who is Deputy Manager of Axis Bank to prove the bank account
statements filed on record. Besides oral evidence, the complainant
relied upon the following documentary evidence.
Sr.No. Description of documents Exh.No.
1. Statement of account dated 13/01/2021 10
2. Cheque dt.21/08/2018 11
3. Cheque return memo dated 27/08/2018 12
4. Demand Notice dated 18/09/2018 13
5. Postal envelope 14
6. Postal acknowledgment 15
8. In view of the incriminating evidence placed on record, the
statement of the accused came to be recorded under Section 313 of the
Code of Criminal Procedure wherein the accused has taken stand that
he has been falsely implicated in this case and the cheque in question
does not bear his signature.
9. The learned advocate for the complainant, Mr.Ramlal
Khushwaha, filed the written notes of argument and further vehemently
argued that the complainant has satisfied all the ingredients of Section
138 of the Negotiable Instruments Act and therefore, according to him,
the accused is liable to be punished in accordance with law.
10. Per contra, the learned advocate for the accused, Mr.
Imam, vehemently argued that the accused has succeeded to rebut the
presumption under section 139 of the Negotiable Instruments Act. He
placed reliance on the following judgment:
(Sujitkumar C. Tayde)
JMFC, Andheri, Mumbai.
-- 4 of 23 --
5 C. C. No.4404084/SS/2018
i] Judgment delivered by Hon'ble Supreme Court of
India in Criminal Appeal no. 258 of 2021
ii] Judgment delivered by Hon'ble Supreme Court of
India in Criminal Appeal no.813 of 2013
iii] 2014 All MR (Cri) Journal 126
iv] Judgment delivered by the Hon'ble Bombay High
Court in Writ Petition no.1618 of 2019
11. I have gone through the citations filed on record. The
relevant ratio laid down therein will be quoted at the appropriate stage
herein after, if required.
12. Having heard the learned advocates for both the sides, I
perused the record. In view of the accusation and the defence,
following points arise for my determination. In the light of evidence, I
record my findings thereon with reasons as under:-
SR.
NO.
POINTS FINDINGS
1. Does complainant prove that cheque in
question was issued by the accused in
favour of her for discharging legally
enforceable liability?
Proved
2. Does the complainant prove that the
cheque was returned unpaid for the
reason “Funds insufficient”?
Proved
3. Does the complainant prove that the
statutory demand notice was issued to
the accused within limitation?
Proved
4. Whether the accused succeeded in
rebutting the presumption arising out
of section 139 of the Negotiable
Instruments Act?
Disproved
(Sujitkumar C. Tayde)
JMFC, Andheri, Mumbai.
-- 5 of 23 --
6 C. C. No.4404084/SS/2018
5. Whether the offence punishable under
section 138 of the Negotiable
Instruments Act is made out against
accused ?
In affirmative
6. What order ? The accused is
convicted for the
offence punishable
under section 138 of
the Negotiable
Instruments Act as
per the final order.
:R E A S O N S:
13. In the present case on hand, the accused is alleged to have
committed the offence punishable under section 138 of the Negotiable
Instruments Act. In order to prove the offence punishable under
section 138 of the Negotiable Instruments Act, the following mandatory
ingredients are required to be satisfied:-
i) A person must have drawn a cheque on an account maintained by him
in a bank for the payment of certain amount of money to another
person from out of that account for the discharge in whole or in part, of
any debt or other liability.
ii) That the cheque has been presented to the bank within a period of six
months from the date, on which it is drawn or within period of its
validity, whichever is earlier.
iii) That the cheque is returned by the bank unpaid, either because the
amount of money standing to the credit of the account, is insufficient to
honour the cheque or that exceeds and amount arranged to be paid
from that account by an agreement made with the bank.
iv) The payee or the holder in due course of the cheque makes a demand
for the payment of said amount of money by giving a notice in writing,
(Sujitkumar C. Tayde)
JMFC, Andheri, Mumbai.
-- 6 of 23 --
7 C. C. No.4404084/SS/2018
to the drawer of the cheque, within 30 days of the receipt of the
information by him from the bank regarding dishonour of the cheque as
unpaid.
v) The drawer of the said cheque fails to make payment of said amount of
money to the payee or holder in due course of the cheque within 15
days from the receipt of the said notice.
vi) The payee or holder in due course lodged written complaint in the
court within 30 days thereafter.
vi) The drawer of the said cheque failed to rebut the presumption under
section 118 and 139 of the
Negotiable Instruments Act.
14. In view of section 139 of the Negotiable Instruments Act, it
shall be presumed, unless the contrary is proved, that the holder of the
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. So also
section 118 of the Negotiable Instruments Act, there is a presumption
that the cheque was issued for certain consideration.
15. It is pertinent to note here that the explanation appended
to Section 138 of the Negotiable Instruments Act explains the meaning
of expression “debt or other liability” for the purpose of Section 138 of
the Negotiable Instruments Act. Thus, the explanation reveals that to
attract an offence under section 138 of the Negotiable Instruments Act
there should be a legally enforceable debt or other liability subsisting on
the date of drawal of the cheque. As per the definition mentioned in
Aiyar's Judicial Dictionary, “Debt is a pecuniary liability. A sum payable
or recoverable by action in respect of money demand.
(Sujitkumar C. Tayde)
JMFC, Andheri, Mumbai.
-- 7 of 23 --
8 C. C. No.4404084/SS/2018
Keeping in mind these settled provisions, I proceed to determine
the points noted above.
AS TO POINT NO.1:
(Does complainant prove that disputed cheque was issued by the
accused, in favour of her for discharging legal enforceable liability?)
16. It is the case of the complainant that the accused had taken
friendly loan of Rs.3,00,000/- from her through a cheque dated
30/12/2017 from the account maintained by her in SBI Bank. In order
to prove this fact, the complainant examined herself. In addition to
ocular evidence in this regard, she filed the computer generated copy of
the statement of her bank account vide Exh.No.10. This document
reveals that the amount of Rs.3,00,000/- was debited from the account
of the complainant and it was credited in the concerned account of
Qubik works of which the accused is proprietor.
17. It is pertinent to note here that though the complainant
was cross-examined at length, this material document (Exh.No.10) was
not disputed. Thus, the oral testimony of the complainant regarding the
payment of the hand loan amount of Rs.3,00,000/- to the accused by
way of the said cheque is duly corroborated by the documentary
evidence. Therefore, I have no hesitation to hold that the accused had
received the loan amount of Rs.3,00,000/- from the complainant.
18. The complainant has come with the case that in order to
discharge the legal liability towards the repayment of the said loan
amount, the accused issued the cheque in question. The complainant
(Sujitkumar C. Tayde)
JMFC, Andheri, Mumbai.
-- 8 of 23 --
9 C. C. No.4404084/SS/2018
filed the original copy of the said cheque vide Exh.No.11.
19. In the present case on hand, the accused has come with the
stand that the said cheque (Exh.No.11) does not bear his signature.
The another stand taken by the accused is that he is not proprietor of
Qubik Works. In such scenario, in order to attract the presumption as
contemplated under section 118 and 139 of the Negotiable Instruments
Act, the complainant is under obligation to prove that the accused is
signatory authority of the said Firm i.e. Qubik Works. To prove this fact,
the complainant examined the concerned bank witness, Mr.Kalpesh
Parekar (P.W.2).
20. The bank witness, Mr. Kalpesh Parekar (P.W.No.2) has
categorically deposed that he filed the bank account statement of the
accused (Exh.No.16). According to his evidence, the name of joint
account holder is Dharmendradas Verma and the account number
mentioned in the cheque in question and the account number shown in
the statement (Exh.No.16) are same. The said bank account statement
is computer generated copy and therefore, this witness (P.W.No.2) has
also filed the requisite certificate under section 65 (B) of Indian
Evidence Act.
21. It is pertinent to note here that the accused has not denied
the said bank account statement (Exh.No.16). Therefore, having regard
to the testimony of the said bank witness and the requisite certificate
filed on record, I do not find any hurdle to take into consideration the
said bank account (Exh.No.16). After perusal of this statement, it
appears that the bank account number mentioned in the said cheque
(Sujitkumar C. Tayde)
JMFC, Andheri, Mumbai.
-- 9 of 23 --
10 C. C. No.4404084/SS/2018
and the account number mentioned in the statement are similar. It
would not be out of place to mention here that the said bank witness
has also filed the certified and attested copies of the said bank account
opening form. This document has not been denied by the accused.
Hence, these document i.e. bank account opening form is admissible.
22. After perusal of the said bank opening form, it appears that
the accused has opened the joint account in the name of M/s Qubik
Works. This form further reveals that he is authorized signatory and
beneficial owner of M/s.Qubik Works. This document further reveals
that he is proprietor of said Qubik Works. Thus, after taking into
consideration these material document (i.e. Bank account opening
form), it can be safely held that the accused is proprietor of Qubik
Works and he is authorized signatory of the said Firm. Now I turn to
decide whether the cheque which was drawn on the said bank bears the
signature of the accused.
23. In view of the objection raised by the accused, the cheque
in question was sent to Additional Chief State Examiner of the
Documents, Hand Writing and Photography Bureau CID Maharashtra,
Churchgate, Mumbai. Both the complainant and the accused provided
the requisite documents filed on record. On 07/08/2025, the
Additional Chief State Examiner of the Documents, Hand Writing and
Photography Bureau CID Maharashtra, Churchgate, Mumbai submitted
the following report:
(Sujitkumar C. Tayde)
JMFC, Andheri, Mumbai.
-- 10 of 23 --
11 C. C. No.4404084/SS/2018
OPINION
The Documents of this case have been carefully and thoroughly
examined by me with the aid of scientific equipment by comparison
process; I am of the opinion that:
The pencil encircled English signature marked as Ex.Q-1 when
compared with those on the Exh.S-1 to S-6, N-1 to N-10 & N-11 to N-
17 shows similarities in writing habits, which are indicating towards
their common authorship.
Sd/-
(Sagar K. Juikar)
Addl. Chief State Examiner of Documents,
Mumbai
	Handwriting and Photography Bureau,
Date: 07/08/2025
	C.I.D. M.S. Mumbai.
24. Having gone through the opinion submitted by the
competent authority, it appears that the cheque in question bears the
signature of the accused. It is pertinent to note here that both the
parties were directed to take the note of the said hand writing expert
opinion. Both the learned advocate for the complainant and the
accused noted the said report on 25/08/2025. The record shows that
since then the accused did not submit any objection against the said
expert opinion. In such scenario, I have no hesitation to take into
consideration the said expert opinion which disclosed that the accused
has signed the cheque in question.
25. Apart from this, the bank witness Mr. Kalpesh Parekar
(P.W.No.2) has categorically proved the bank account statement of the
accused. Moreover, this witness has specifically proved the account
opening form submitted by the accused before the said bank. The said
document bears the signature of the accused. In such circumstances, I
am guided by the ratio laid down by the Hon’ble Supreme Court in case
(Sujitkumar C. Tayde)
JMFC, Andheri, Mumbai.
-- 11 of 23 --
12 C. C. No.4404084/SS/2018
of Ajit Sinh Chehuji Rathod Vs State of Gujarat and Anr reported in
2024 INSC 63 wherein the Hon’ble Supreme Court of India has held
that certified copies of specimen signatures stored by the bank on its
documents may be produced as evidence where the accused in a case
under section 138 of of the Negotiable Instrument Act is disputing the
genuineness of the signature on the cheque. The Hon’ble Apex Court
further held that if the applicant was desirous of proving that the
signatures as appearing on the cheque issued from his account were not
genuine, then he could have procured a certified copy of his specimen
signatures from the Bank and a request could have been made to
summons the concerned Bank official in defence for giving evidence
regarding the genuineness or otherwise of the signature on the cheque.
However, in the present case on hand, the accused did not adopt this
possible approach. On the other hand, the complainant examined the
concerned bank witness and proved that the documents kept with the
bank bear the signature of the accused.
26. Having regard to the undisputed expert opinion and the
certified copies of specimen signatures stored by the bank as discussed
above, this Court is of considered opinion that the cheque in question
which is said to have been issued by the accused to the complainant to
discharge the legal liability, bears his signature. In short, considering
the positive evidence placed on record, this Court is of opinion that the
cheque which is the subject matter of the case bears the signature of the
accused. Thus, I do not find any force in the argument advanced by the
learned advocate for the accused that the cheque in question does not
bear the signature of the accused.
(Sujitkumar C. Tayde)
JMFC, Andheri, Mumbai.
-- 12 of 23 --
13 C. C. No.4404084/SS/2018
27. In view of the discussion noted above, I have come to the
conclusion that the complainant has succeeded to establish the fact that
the cheque filed on record bears the signature of the accused. In such
scenario, I have no hesitation to hold that the presumption of Section
118 and 139 of the Negotiable Instruments Act are attracted in this
matter. In this regard, I am guided by the ratio laid down by the
Hon'ble Apex Court, in the case of M/s. Kalamani Tex and another V/s.
P. Balsubramaniyam [Criminal Appeal No. 123 of 2021] the Hon'ble
Apex Court held that the Negotiable Instruments Act mandates that
onces the signature(s) of an accused on the cheque/ negotiable
instrument are established, then these 'reverse onus' clauses become
operative.
28. In the case of Rangapaa Vs. Shri Mohan reported in (2010)
11 SCC 441, the Hon'ble Supreme Court held that the presumption
mandated by the Section 139 of the Negotiable Instruments Act
includes the existence of a legally enforceable debt or liability.
29. In view of the discussion noted above I have come to the
conclusion that the complainant has proved that disputed cheque was
issued by the accused in favour of the complainant for discharging legal
enforceable liability. Hence, I record my finding in affirmative for point
no.1.
AS TO POINT NO.2:
(Does the complainant prove that the cheque was returned unpaid for
the reason “Funds insufficient”?)
(Sujitkumar C. Tayde)
JMFC, Andheri, Mumbai.
-- 13 of 23 --
14 C. C. No.4404084/SS/2018
30. It is the case of the complainant that the Cheque No.
008478 which had been issued by the accused was dishonoured for the
reason “Funds insufficient”. The complainant deposed that after having
received the said cheque, she deposited the same to the banker of the
accused through her banker within the stipulated period. The
complainant further deposed that the said cheque was dishonoured for
want of sufficient fund as per the Bank Advices dated 27/08/2018. The
complainant filed the copy of said cheque return memo. It is marked as
Exh.No.12.
31. It is pertinent to note here that though the complainant
was cross-examined at length, yet the accused did not challenge the
validity and legality of the said cheque return memo filed on record. It
is needless to say here that the document i.e. cheque return memo has
presumptive value regarding its genuineness as per the banking laws.
The accused did not rebut the said presumption. In such scenario, I
have no hesitation to take into consideration the said cheque return
memo which discloses that the cheque was returned unpaid due to
insufficiency of fund in the account maintained by the accused.
Resultantly, I record my finding in affirmative for Point No.2.
AS TO POINT NO.3 :-
(Does the complainant prove that she had issued the statutory demand
notice to the accused within limitation demanding the cheque amount?)
32. In view of Section 138 (b) of the Negotiable Instruments
Act, the payee or the holder in due course of cheque, is required to
make a demand for the payment of the amount of money by giving a
(Sujitkumar C. Tayde)
JMFC, Andheri, Mumbai.
-- 14 of 23 --
15 C. C. No.4404084/SS/2018
notice in writing, to the drawer of the cheque within 30 days from the
receipt of information by him from the bank regarding the return of the
cheque as unpaid. So let us scan the evidence in this regard.
33. According to the evidence of the complainant, after having
received the cheque return memo dated 27/08/2018, he issued the
notice to the accused on 18/09/2018 by registered post. In order to
support his oral evidence, the complainant filed the office copy of the
statutory demand notice (Exh.No.13). According to the evidence of the
complainant, the envelope containing the statutory notice was
unclaimed by the accused and therefore, it was returned to the sender.
She has filed the copies of the envelopes on record.
34. Having gone through the address mentioned on envelopes
filed on record and the copy of the complaint, it is crystal clear that the
address mentioned in the said envelope is exactly similar to the address
of the accused mentioned in this complaint case.
35. In case of Malanbai Ratnaparkhi V/s. Govinda R. Motade
reported in 2002 Cr.L.J.1188, the Hon'ble Bombay High Court held that-
“Once the notice is shown to have been dispatched by post and
the envelop in which such notice was sent, was carrying correct address
of the sendee written on it, the presumption would arise in favour of
the sender to the effect that such notice was duly served upon the
sendee unless that presumption is rebutted by necessary evidence
alongwith the fact that the sendee was not responsible for such non-
service”.
(Sujitkumar C. Tayde)
JMFC, Andheri, Mumbai.
-- 15 of 23 --
16 C. C. No.4404084/SS/2018
36. After perusal of the record, it appears that the accused has
not deposited the cheque amount in the Court even after being served
with the summons. In such scenario, it can be held that the complainant
succeeded to establish the fact that the statutory demand notice was
issued to the accused after getting the knowledge of the dishonour of
the cheque. I am fortified with my opinion in view of the ratio laid
down by the Hon'ble Apex Court in the case of C.C.Alavi Haji
V/s.
Palapetty Mumhammed & Anr. reported in(2007)6 SCC 555. In this
citation,
the Hon'ble Supreme Court held that -
“ A person who does not pay within 15 days of receipt of
the summons from the court along with copy of the complaint
under section 138 of N.I. Act, cannot obviously contend that there was
no proper service of the notice as required under section 138 of N.I.
Act, by ignoring statutory presumption to the contrary under Section of
General Clauses Act and section 114 of Indian Evidence Act.”
37. In view of the discussion of the above, I have no hesitation
to hold that the complainant had issued the statutory demand notice to
the accused within prescribed period and the accused failed to pay the
cheque amount to the complainant within the statutory period of
limitation. Hence, I record my finding in affirmative for Point No.3.
AS TO POINT NO.4:-
(Whether the accused succeed in rebutting the presumption arising out
of section 139 of the Negotiable Instruments Act?)
38. In the case of Goa Plast Pvt. Ltd., V/s Chico D'souza (2003
SCC (Cri)499, the Hon'ble Supreme Court considered the object behind
section 138 and 139 of the Negotiable Instruments Act and held that
(Sujitkumar C. Tayde)
JMFC, Andheri, Mumbai.
-- 16 of 23 --
17 C. C. No.4404084/SS/2018
the entire burden is on accused to show that cheque was not issued for
any debt or liability as mentioned in the complaint. It is settled that the
standard proof of rebutting the presumption is preponderance of
probabilities. Having regard to this settled position, I turn to make the
scrutiny of the evidence placed on record to determine whether the
accused rebutted the presumption under section 139 of the Negotiable
Instruments Act.
39. In this case, the accused has raised the two defence i.e. the
cheque in question does not bear his signature and he is not proprietor
of Qubik Works. In fact, while discussing the point no.1, this Court has
specifically recorded its finding that the cheque in question bears the
signature of the accused. Moreover, it has been discussed in the
forgoing paragraph that the complainant has succeeded to establish the
fact that the accused is proprietor of Qubik Works. Therefore, in my
opinion, there is no need to discuss the evidence again here. In short,
this Court has already decided the stands/defence raised by the
accused.
40. Moreover, the complainant has admitted in her cross-
examination that she possessed the disputed cheque. In fact, it is not
the stand of the accused that the said cheque was given under threat or
undue influence. In such circumstances, it can be inferred that the
cheque was voluntarily issued in favour of the complainant. In this
regard, I am guided by the ratio laid down by the Hon'ble Apex Court,
in the case of Bir Sing V/s. Mukesh Kumar reported in (2019) 4 SCC
197 wherein it is held that -
“
The cheques duly signed and voluntarily made over to payee, was in
(Sujitkumar C. Tayde)
JMFC, Andheri, Mumbai.
-- 17 of 23 --
18 C. C. No.4404084/SS/2018
discharge of debt or liability arises irrespective of whether cheque was
post dated or blank cheque for filing by payer or any other person in
the absence of evidence of undue influence”.
41. It is pertinent to note here that while conducting the cross-
examination of the complainant, she was suggested that she had not
given intimation to the accused before depositing the disputed cheque.
In fact, this suggestion has been admitted. However, from this
suggestion it can be inferred that the accused had issued the cheque in
question to the complainant.
42. The learned advocate for the accused argued that the
present case is not maintainable because the account mentioned in this
case is joint account. He placed reliance on the judgment passed by the
Hon’ble Supreme Court in Criminal Case No.258/2021. I have gone
through the citation. With due respect to the ratio laid down therein,
this Court is of humble opinion that the facts and circumstances of this
case are different than that of the case law. In this case, the complainant
has succeeded to prove that the cheque was dishonoured by the
accused.
43. The another stand taken by the learned advocate for
accused is that the accused has succeeded to rebut the presumption. In
this regard, he placed reliance on the authorities noted above. Having
regard to the discussion noted above, I have come to the conclusion that
the accused failed to rebut the statutory presumption. Hence,
authorities filed by the learned advocate for the accused are not helpful
for the accused.
(Sujitkumar C. Tayde)
JMFC, Andheri, Mumbai.
-- 18 of 23 --
19 C. C. No.4404084/SS/2018
44. The learned advocate for the accused has not objected the
opinion of the expert. Therefore, this Court is of humble opinion that
the citation i.e. 2014 ALL MR. (Cri.) Journal 126 does not support his
argument. In short, having gone through the citations referred by the
learned advocate for the accused, this Court is of humble opinion that
the facts and circumstances mentioned in the said citations are different
than that of the facts and circumstances of the case. Hence, these
citations do not support the defence of the accused.
45. In the present case on hand, except conducting the cross-
examination of the complainant, the accused neither stepped into the
witness box nor did he file any relevant document to rebut the oral and
documentary evidence filed by the complainant. In such circumstances,
the ratio laid down in the case of Haribhau Baliram Gondchawar Vs
State of Maharashtra and Another, (Criminal Appeal No.239/2009) is
helpful. In this citation, the Hon'ble Bombay High Court convicted the
accused for failure to discharge the burden as contemplated under
section 139 of the Negotiable Instruments Act. So also in the case of
Moideen Vs Johny (Criminal Appeal No.516/2001), the Hon'ble Kerala
High Court also convicted the accused for the absence of evidence to
rebut the presumption as contemplated under section 118 and 139 of
the Negotiable Instruments Act. In such scenario, mere bald statement
made by the accused without support of any probable and relevant
evidence, cannot be sufficient to discharge the statutory presumption as
contemplated under section 139 of the Negotiable Instruments Act.
Resultantly, I record my finding in negative for Point No.4.
(Sujitkumar C. Tayde)
JMFC, Andheri, Mumbai.
-- 19 of 23 --
20 C. C. No.4404084/SS/2018
AS TO POINT NO.5:-
46. In view of the positive finding for Point No.1 to 3, it can be
held that the complainant has duly proved his claim by adducing cogent
and relevant evidence. Hence, it can be concluded that the offence
punishable under section 138 r/w. Section 141 of the Negotiable
Instruments Act is made out against the accused.
47. I explained the accused that he is guilty for the offence of
the dishonour of cheque. He is further intimated that the Negotiable
Instruments Act has provided punishment to the offence of
imprisonment upto two years or fine up to twice the amount of the
cheque in dispute or both. Thereafter, I asked the accused to clarify his
stand on the nature and quantum of the sentence, if any. Hence, the
accused is called upon to make his submission on the quantum of
punishment. Now, I take pause to hear the accused.
(Sujitkumar C. Tayde)
Judicial Magistrate First Class,
DATE: 20.09.2025 44th Court, Andheri, Mumbai.
Judgment resumed at 5.15 p.m. on 20.09.2025.
48. The accused submitted that he is responsible member of his
family and therefore, leniency may be shown. The learned advocate for
the accused, Shri P. C. Mishra submitted that the relaxation may be
shown while imposing punishment.
(Sujitkumar C. Tayde)
JMFC, Andheri, Mumbai.
-- 20 of 23 --
21 C. C. No.4404084/SS/2018
49. Per contra, the learned advocate for the complainant
vehemently argued that the accused deceived the complainant by
issuing the cheque which was dishonoured. He further submitted that
the accused did not repay the cheque amount and therefore, the
complainant had to suffer monetary loss and mental agony. Thus,
according to him, heavy punishment is required to be imposed on the
accused for having committed the offence punishable under section 138
r/w. Section 141 of the Negotiable Instruments Act.
50. Having heard the learned advocates for both the sides on
the quantum of punishment, I perused the record.
51. Having regard to the conduct of the accused and the nature
of the offence, I do not find any special reason or justification to extend
the benefit of probation to the accused as per the provision of
Probation of Offender Act.
52. In the present case on hand, the complainant has been
waiting for justice since last seven years. In fact, the record shows that
the accused not only tried to avoid his liability but also took lame
excuses and denied to pay the agreed amount. In the case of
Mohammed Yunus Vs Gulam Nabi Rehman reported in ALL MR (Cr.)
1105, the Hon'ble Bombay High Court held that -
“Section 138 of the Negotiable Instruments Act aims at punishing
unscrupulous drawers of cheque who through purport to discharge
their liability by issuing cheque, have no real intention to pay,
trickster drawer may find out way and means to defeat the honest
(Sujitkumar C. Tayde)
JMFC, Andheri, Mumbai.
-- 21 of 23 --
22 C. C. No.4404084/SS/2018
payee by avoiding payment. The court must be on guard to prevent
miscarriage justice. Hence, suitable and appropriate compensation
along with some penal action against all accused would suffice the
purpose”.
53. 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.
Having regard to the facts and circumstances of the case
and the ratio laid down in the citation supra, I pass the following
order:-
ORDER
1] The accused, Mr. Ajay Dharamdas Vora, Proprietor of Qubik
Works, Age 59 Yrs., Occu . - Business/Service, Having Office at
Shop No.03, B-5, Sector – 9, Shanti Nagar, Mira Road, Mumbai
– 401 107 and Patel Wadi, Next to Horison & Novotel Hotel,
Juhu, Mumbai – 400 049, is hereby convicted for the offence
punishable under Section 138 r/w Section 142 of the
Negotiable Instruments Act in view of Section 255 (2) of the
Code of Criminal Procedure. Resultantly, the accused is
sentenced to suffer simple imprisonment for six months.
(Sujitkumar C. Tayde)
JMFC, Andheri, Mumbai.
-- 22 of 23 --
23 C. C. No.4404084/SS/2018
2] The accused is directed to pay compensation of Rs.5,00,000/-
(Rupees Five Lakh Only) to the complainant within three
months from the date of passing this judgment. In default of
payment of compensation, the accused shall suffer simple
imprisonment for period of three months.
3] The amount of compensation realized from the accused, shall
be paid to the complainant, subject to expiry of the appeal
period or the orders of Honourable Appellate Court (if any).
4] The accused is entitled for set-off under section 428 of the
Code of Criminal Procedure, 1973, if any.
5] The copy of this Judgment be provided free of cost to the
accused immediately after it is prepared in view of section 363
(1) of the Code of Criminal Procedure, 1973.
6] The learned advocate for the accused is informed about right of
appeal of the accused against this judgment.
7] The Judgment is dictated on dais and pronounced in open
Court.
(Sujitkumar C. Tayde)
Date : 20.09.2025 Judicial Magistrate First Class,
44th Court, Andheri, Mumbai.
Typed On: 20.09.2025
Signed On: 20.09.2025
spj
(Sujitkumar C. Tayde)
JMFC, Andheri, Mumbai.
-- 23 of 23 --