Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. No.4402805/SS/2018
MHMM190152672018
Received on : 13.07.2018
Registered on : 13.07.2018
Decided on : 23.02.2026
Duration : 07 Y. 07 M. 10 D.
IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS,
44TH COURT, ANDHERI, MUMBAI.
(Presided over by Dr. Sujitkumar C. Tayde)
C. C. No.4402805/SS/2018
C.N.R.No.MHMM19-015267-2018
Exh. No.
Mr. Gulabchand Subhashchand Gupta,
Age - 49 Yrs., Occu. - Business,
R/o.Dhangarwadi, Near Mecca Masjid,
Gilbert Hill Road, Andheri (West),
Mumbai – 400 058. ....Complainant
V/s.
Mr. Jafar Ali Kasim Ali Shaikh,
Age - 44 Yrs., Occu. - Business,
R/o. Noorani Chawl,
Opp. BMC Urdu School,
Gilbert Hill Road,
Andheri (W), Mumbai – 400 058.
....Accused.
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Complaint for the offence punishable under Section 138 r/w 141 of the
Negotiable Instruments Act.
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 1 of 21 --
2 C. C. No.4402805/SS/2018
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Learned advocate of the complainant : Adv. Shri Pandharinath
Palekar
Learned advocates of the accused : Adv. Shri P. P. Dubey
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J U D G M E N T
(Delivered on 23/02/2026)
The accused is alleged to have issued the cheque which was
returned unpaid due to insufficiency of fund 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 accused has friendly relationship with the complainant
and both the complainant and the accused are neighbours. Hence, the
accused had sought the financial assistance from the complainant.
Accordingly, the complainant paid him Rs.7,00,000/- as a friendly loan
on easy installment of Rs.50,000/- each from November, 2015 to
December, 2016.
3. The accused promised to repay the said borrowed amount
and issued post dated cheque no.099267 in this regard in favour of the
complainant. As well as the accused executed the promissory note on
26/04/2016 whereby he accepted the receipt of said borrowed amount.
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 2 of 21 --
3 C. C. No.4402805/SS/2018
4. According to the complainant, in the month of February,
2017 when he asked the accused to repay the amount, he requested the
complainant not to present the said post dated cheque no.099267. He
further assured the complainant that he would repay the said borrowed
amount. Eventually after getting several request from the complainant
for repayment of the said borrowed amount, the accused issued the
another cheque bearing no.152981 on 31/05/2018 for the amount of
Rs.7,00,000/- to discharge the said liability. The said cheque was
drawn on Union Bank, Branch Santacruz (W), Mumbai.
5. Having received the said cheque, the complainant
presented the same before his banker i.e. the Bombay Mercantile
Co.op.Bank Ltd., Andheri (W) Branch, Mumbai, for encashment. But the
said cheque was dishonoured for want of sufficient funds as per the
bank advices dated 01/06/2018. Hence, the complainant issued
statutory demand notice by registered A/D to the accused on
05/06/2018 through his advocate and thereby called upon the accused
to pay the cheque amount of Rs.7,00,000/- within the stipulated period.
The accused received the said demand notice on 07/06/2018. But the
accused failed and neglected to make the payment. In short, according
the complainant, the accused committed offence punishable under
section 138 Negotiable Instrument Act by issuing the cheque which was
dishonoured 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
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 3 of 21 --
4 C. C. No.4402805/SS/2018
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 himself by way of filing his affidavit in lieu of examination-in-
chief (Exh.No.06) under section 145(1) of the Negotiable Instruments
Act. The accused examined himself. Besides oral evidence, the
complainant relied upon the following documentary evidence.
Sr.
No.
Description of documents Exh.No.
1 Original Promissory Note dated 24/04/2016 07
2 Original Cheque Bearing No.152981 dated
31/05/2018 for Rs.7,00,000/-.
08
3 Original Bank Memo of Axis Bank dated
01/06/2018
09
4 Office copy of demand notice dated
03/06/2018
10
5 Original Indian Post Receipt dated
05/06/2018
11
6 Original A.D. Card dated 07/06/2018 12
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. Except denial to the evidence adduced by
the complainant, the accused has submitted that the cheque in question
was given as the security towards the loan which he had taken from the
complainant. According to the accused, he has been falsely implicated
in this case.
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 4 of 21 --
5 C. C. No.4402805/SS/2018
9. The learned advocate for the complainant, Mr.
Pandharinath Palekar, 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, Shri P. P.
Dubey filed his written notes of argument and submitted that the
accused has succeeded to rebut the presumption under section 139 of
the Negotiable Instruments Act and therefore, he prayed to dismiss the
case.
11. 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 him 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
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 5 of 21 --
6 C. C. No.4402805/SS/2018
4. Whether the accused succeeded in
rebutting the presumption arising out
of section 139 of the Negotiable
Instruments Act?
Disproved
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:
12. 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
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 6 of 21 --
7 C. C. No.4402805/SS/2018
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,
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.
vii) The drawer of the said cheque failed to rebut the presumption under
section 118 and 139 of the
Negotiable Instruments Act.
Keeping in mind these ingredients, 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 him for discharging legal enforceable liability?)
13. It is the case of the complainant that the accused had
borrowed the amount of Rs.7,00,000/- from him and to discharge the
liability in this regard, the cheque in question was issued by the
accused. It is alleged that the said cheque was dishonoured for want of
sufficient fund in the account maintained by the accused.
14. As per the evidence of the complainant, the accused is not
only his friend but also his neighbour. This relationship between the
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 7 of 21 --
8 C. C. No.4402805/SS/2018
accused and the complainant has not been denied. In fact, the accused
has not denied the fact that he had borrowed the amount from the
complainant. But according to the evidence of the accused, he had
received the amount of Rs.2,50,000/- from the complainant and he
repaid the said amount to the complainant in three installment in the
year of 2016.
15. On the other hand, it is the case of the complainant that the
accused had borrowed the amount of Rs.7,00,000/- and he did not
repay the said friendly loan amount of Rs.7,00,000/-. Thus, there is
only controversy to be resolved in respect of the borrowed amount and
the repayment of the said amount. So let us scan the evidence to decide
this fact in issue.
16. The complainant stated on oath that he had paid the total
amount of Rs.7,00,000/- to the accused by way of the installments to
the tune of Rs.50,000/- each during the period of November, 2015 to
December, 2016. In order to support his oral evidence, the complainant
filed the original copy of the promissory note executed by the accused
on 26/04/2016. It is filed on record. Since the execution of the said
promissory note is admitted by the accused, it is marked as Exh.No.07.
17. It is pertinent to note here that the accused examined
himself in this matter. However, he did not uttered a single world to
show that the said promissory note executed by him on 26/04/2016 is
false. Moreover, there is no document on record to show that the said
promissory note (Exh.No.07) is either rectified or it is cancelled. Thus,
this material document can be used for collateral purpose. The said
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 8 of 21 --
9 C. C. No.4402805/SS/2018
promissory note reveals that the accused had taken the friendly loan of
Rs.7,00,000/- from the complainant and to give assurance regarding the
repayment of the said loan amount, he handed over one post dated
cheque bearing no.099267 dated 04/07/2017. In such scenario, it can
be held that when the accused himself admitted the execution of the
said promissory noted dated 26/04/2016, then there is no hurdle to
hold that the accused had borrowed the amount of Rs.7,00,000/- from
the complainant.
18. The learned advocate for the accused vehemently argued
that the cheque in question (Exh.No.08) is different than that of the
said posted dated cheque mentioned in the said promissory note and
therefore, no liability is made out against the accused. But I am not
inclined to accept his argument because the complainant has specifically
stated on oath that in the month of February, 2017, he asked the
accused to repay the loan amount of Rs.7,00,000/-. Then the accused
requested not to deposit the said post dated cheque bearing no.099267
and later on he issued the cheque in question bearing no.152981 on
31/05/2018. It is pertinent to note here that this piece of evidence has
not been specifically denied by the accused. Therefore, I have no
hesitation to accept this unchallenged testimony of the complainant
which clarifies the controversy regarding the different cheque as argued
by the learned advocate for the accused. In short, considering the
positive and unchallenged testimony of the complainant, it can be safely
held that the accused issued the cheque in question to discharge his
liability.
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 9 of 21 --
10 C. C. No.4402805/SS/2018
19. It is pertinent to note here that it is the stand of the accused
that the cheque in question was given as the security cheque towards
the loan which he had accepted. But there is no iota of evidence
adduced by the accused that he attempted to take back the said cheque
after repayment of the borrowed amount. Thus, it appears that the
accused has nowhere denied the fact of issuance of the cheque in
dispute. In fact, it is not the stand of the accused that the cheque
(Exh.No.08) is forged. So also the accused did not deny his
relationship with the complainant. Thus, it appears that there is
substance in the case of the complainant.
20. In the instant case, the accused has nowhere denied his
signature made on the cheque in dispute. In such circumstances, it can
be held that the accused is under obligation to pay that the amount
which he had received from the complainant. 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.
21. As per the evidence of the complainant, the accused issued
the cheque in connection with the transaction mentioned in the
complaint. In fact, though the witness was cross-examined at length,
yet the signature of the accused made on the cheque in question was
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 10 of 21 --
11 C. C. No.4402805/SS/2018
not denied. In such scenario, I am guided by the ratio laid down by the
Hon'ble Apex Court in the case of Triyambak S. Hedge V/s. Shripal (Cri.
Appeal No.849850/2011) wherein the Hon'ble Apex Court observed –
“
Signature on document at Exh.No.P-2 is not disputed. Exh.No.P-
2 is the dishonoured cheque based on which the complaint was filed.
From the evidence tendered the J.M.F. Court, it is clear that the
respondent has not disputed the signature on the cheque. If that be the
position as noted by Courts below, a presumption would arise under
section 139 of N.I. Act in favour of the applicant who was holder of the
cheque”.
22. 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.
23. 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 him 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”?)
24. It is the case of the complainant that the Cheque No.
152981 which had been issued by the accused, was dishonoured for the
reason “Funds insufficient”. The complainant deposed that after having
received the said cheque, he deposited the same to the banker of the
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 11 of 21 --
12 C. C. No.4402805/SS/2018
accused through his 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 01/06/2018.
25. In order to prove the fact of dishonour of the cheque, the
complainant filed the computer generated copy of the cheque return
memo. It is pertinent to note here that though the complainant was
cross-examined at length, the said cheque return memo was not
disputed. Apart from this, the facts and circumstances of the present
case on hand, are similar to the case law reported in SCC Online Cal
779 in the case of Praveen Kumar Tiwari Vs Ajit Chandra Mandal [CRA
(SB) 30 of 2023 dated 28/01/2025] wherein the Hon’ble Calcutta High
Court held that a system generated return memo containing the bank
code, branch name, user ID and reason for dishonour constitutes valid
evidence under section 146 of the Negotiable Instrument Act and the
absence of a bank seal or signature does not render the documents
invalid.
26. Apart from this, in the case of Guneet Bhasin Vs. State of
NCT of Delhi reported in 2022 SCC Online Delhi 3967, the Hon’ble
Delhi High Court held that neither Section 138 nor section 146 of the
Negotiable Instrument Act mandates a specific form of cheque return
memo. In this citation, it has been further observed by the Hon’ble
Delhi High Court that the cheque return memo is merely an intimation
from the bank that a cheque has been returned unpaid and as long as it
contents necessary details proving dishonour, it is valid evidence under
law.
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 12 of 21 --
13 C. C. No.4402805/SS/2018
27. It is pertinent to note here that no any rebuttal evidence
has been adduced by the accused to disbelieve the authenticity of the
said cheque returning memo. Therefore, in my opinion, the oral
testimony of the complainant is duly corroborated by the documentary
evidence. Hence, it can be held that the complainant proved the fact
that the cheque was returned unpaid due to insufficiency of fund in the
account maintained by the accused. Resultantly, I record finding in
affirmative for Point No.2.
AS TO POINT NO.3 :-
(Does the complainant prove that he had issued the statutory demand
notice to the accused within limitation demanding the cheque amount?)
28. 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
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.
29. According to the evidence of the complainant, after having
received the cheque return memo on 01/06/2018, he issued the
demand notice to the accused on 03/06/2018 which was posted on
05/06/2018 by registered post A/D. In order to support this oral
evidence, the complainant filed the office copy of the statutory demand
notice (Exh.No.10). So also he filed the postal receipt and the
acknowledgment given by the concerned post office.
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 13 of 21 --
14 C. C. No.4402805/SS/2018
30. It is pertinent to note here that while facing the cross-
examination, the accused has categorically admitted that he had
received the said demand notice (Exh.No.10). In fact, during the course
of cross-examination, the accused deposed that he has knowledge about
the dishonour of the cheque which he had issued and delivered to the
complainant
. However, the record shows that the accused did not reply
the said notice. Thus, it appears that the complainant has succeeded to
prove the fact that the statutory demand notice was issued to the
accused within the stipulated period and the same was received by the
accused.
31. 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. In this regard, I am guided by 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.”
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 14 of 21 --
15 C. C. No.4402805/SS/2018
32. 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?)
33. 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
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.
34. In this case, the accused examined himself and has come
with two fold defence i.e. he had given the cheque as the security to the
complainant and he did not fill up the contents therein. So let us turn
to make the scrutiny of the evidence adduced by the accused in this
regard.
35. The learned advocate for the accused argued that the
accused had given the cheque in question as the security and therefore,
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 15 of 21 --
16 C. C. No.4402805/SS/2018
the complainant has no locus-standi to file this case. But I am not
inclined to accept his argument because there is no iota of evidence
placed on record by the accused to show that the accused had taken
substantial efforts to take back the said cheque after completion of the
transaction. Hence, the defence raised by the accused does not appear
to be probable. I am fortified with my opinion in view of the ratio laid
down by the Hon'ble Apex Court in the case of Sunil Todi & Ors., Vs.
State of Gujarat and Anr. (Criminal Appeal No.1446 of 2021) reported
in AIR Online 2021 SC 1120 wherein the Hon'ble Apex Court held that -
“Merely labeling the cheque as a security would not obviate its
character as an instrument designed to meet a legally enforceable debt
or liability, once the supply power had been provided for which there
were monies due and payable. There is no inflexible rule which
precludes the drawee of a cheque issued as security from presenting it
for payment in terms of contract”.
36. So far as the another stand/defence is concerned, I am of
the opinion that the accused did not adduce any relevant evidence to
show 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
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”.
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 16 of 21 --
17 C. C. No.4402805/SS/2018
37. In fact, except raising the controversy regarding the
repayment of the borrowed amount, the accused did not raise any
probable or substantial defence to disbelieve the case of the
complainant. Thus, it appears that the accused utterly failed to rebut
the presumption has contemplated under section 118 and 139 of of the
Negotiable Instrument Act. Resultantly, I record my finding in negative
for Point No.4.
AS TO POINT NO.5:-
38. 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 of the Negotiable Instruments Act is made
out against the accused.
39. I explained the accused that he is guilty for the offence of
the dishonour of cheque. He has been 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, the accused is called upon to
make his submission on the quantum of punishment if any. Hence, I
take pause to hear the accused on the point of punishment.
(Sujitkumar C. Tayde)
Judicial Magistrate First Class,
DATE: 23.02.2026 44th Court, Andheri, Mumbai.
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 17 of 21 --
18 C. C. No.4402805/SS/2018
Judgment resumed at 1.45 p.m. on 23.02.2026.
40. The accused submitted that he is responsible member of his
family and therefore, leniency may be shown while slapping the
punishment. The learned advocate for the accused, Shri P. P .Dubey
submitted that the relaxation may be shown while imposing
punishment.
41. 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
of the Negotiable Instruments Act.
42. Having heard the learned advocates for both the sides on
the quantum of punishment, I perused the record.
43. 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.
44. In the present case on hand, the complainant has been
waiting for justice since last eight years. In fact, the record shows that
the accused not only tried to avoid his liability but also took lame
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
-- 18 of 21 --
19 C. C. No.4402805/SS/2018
excuses and denied to pay the borrowed amount which he had received
as a friendly loan from the complainant. Therefore, in my opinion,
having regard to the conduct of the accused, he is liable to be punished
so that he should know the consequences of his ill legal acts. Moreover,
if the accused is punished, then a message will be sent in the society
that it is not easy to withhold the hard money of another person by
intentionally issuing the cheque which may be dishonoured. In this
regard, I am guided by the ratio laid down in the case of Mohammed
Yunus Vs Gulam Nabi Rehman reported in ALL MR (Cr.) 1105,wherein
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
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”.
45. Apart from this, the 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.
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
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20 C. C. No.4402805/SS/2018
Having regard to the facts and circumstances of the
present case on hand and the ratio laid down in the citation supra, I
pass the following order:-
ORDER
1] The accused,Mr. Jafar Ali Kasim Ali Shaikh, Age - 44 Yrs., Occu.
- Business, R/o. Noorani Chawl, Opp. BMC Urdu School, Gilbert
Hill Road, Andheri (W), Mumbai – 400 058., is hereby
convicted for the offence punishable under Section 138 r/w
141 of the Negotiable Instruments Act in view of Section 255
(2) of the Code of Criminal Procedure. Resultantly, the accused
is sentenced to suffer rigorous imprisonment for six months.
2] The accused is directed to pay compensation of Rs.10,00,000/-
(Rupees Ten 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.
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
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21 C. C. No.4402805/SS/2018
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 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 : 23.02.2026 Judicial Magistrate First Class,
44th Court, Andheri, Mumbai.
Typed On: 23.02.2026
Signed On: 23.02.2026
spj
(Sujitkumar C. Tayde)
JMFC, 44th Court, Andheri, Mumbai.
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