Final Order 1

Order Details: Copy of Judgment .
Pdf Text: 1 Judgment in C.C.No.7002777/SS/2018
MHMM120466582018 Presented on : 17-09-2018
Registered on : 17-09-2018
Decided on : 28-09-2022
Duration : 04 years, -- months,
11 days
IN THE COURT OF METROPOLITAN MAGISTRATE, 70th COURT,
MAZGAON, MUMBAI
(Presided over by M. V. Chavhan)
JUDGMENT
(As per Section 355 of Cr.PC)
a) The Serial number of the
case
: 7002777/SS/2018
b) The date of commission of
offence
: 20.08.2018
c) The name of the complainant
if any
: Mr. Vikas Nandlal Jain
Proprietor of M/s. Arihant
Enterprise, Shop no. 1, Ground
Floor, Dayaji Velji Building,
K.K. Marg, Jacob Circle,
Mumbai 11.
d) The name of the accused
person, his parentage and
residence
: Mr. Raj Kumar Yadav
Proprietor of R.K. Paper Stores,
Shop No. 13, Triveni Sadan,
Mahadeo Palav Marg,
Near Currey Road Railway
Station, Currey Road (E),
Mumbai 12.
e) The offence complained of or
proved
: U/Sec. 138 of the Negotiable
Instrument Act, 1881.
f) The plea of the accused and
their examination, if any
: Accused pleaded not guilty and
claimed to be tried.
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2 Judgment in C.C.No.7002777/SS/2018
g) The Final Order : Accused is convicted of the
offence punishable U/sec. 138
of the Negotiable Instruments
Act.
h) The date of such order : 28.09.2022
____________________________________________________________________
Advocate for the complainant : Shri Sachin Rahate / Malhar
Kadam
Advocate for the accused : Shri Tiwari
JUDGMENT
(Delivered on 28.09.2022 )
BRIEF STATEMENT OF THE REASONS FOR THE DECISION:
Accused is facing trial for the offence punishable U/s. 138
of Negotiable Instruments Act (in short 'The Act').
Brief facts of the complaint can be described as under.:
2. The complainant is the Proprietor of M/s. Arihant
Enterprises, interalia engaged in the business of printing work and
supply of various printing sheets and ancillary materials. Accused is the
Proprietor of R.K. Paper Stores engaged in the business of dealing in
papers and other ancillary material. In due course of business and upon
orders placed by accused, the complainant delivered to the accused the
requisite goods and raised invoices total amounting to Rs.10,93,661/.
The said goods were received by the accused in good condition and
without dispute as to their quality and quantity and the accused has
acknowledged the receipt of goods supplied under the delivery challans.
3. Thereafter, despite multiple requests made by the
complainant for payment against receipt of the goods supplied to the
accused, he defaulted in making full payments. Upon numerous follow
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ups and repeated demands, the accused had issued 29 cheques
aggregating to Rs.10,07,171/ drawn on Punjab and Maharashtra Co
operative Bank Ltd., Bhandup Branch towards the payment of
outstanding dues. The subject cheques are as follows :
Sr.
No
Cheque no. Date of
Cheque
Amount of
Cheque
1 000456 11.04.2018 Rs.20,000/
2 000499 04.07.2018 Rs.25,000/
3 000500 04.07.2018 Rs.25,000/
4 000501 04.07.2018 Rs.25,000/
5 000502 04.07.2018 Rs.24,641/
6 000503 04.07.2018 Rs.20,000/
7 000505 04.07.2018 Rs.27,695/
8 000506 04.07.2018 Rs.44,306/
9 000507 04.07.2018 Rs.57,248/
10 000528 04.07.2018 Rs.42,734/
11 000530 04.07.2018 Rs.39,848/
12 000531 04.07.2018 Rs.15,018/
13 000533 04.07.2018 Rs.67,421/
14 000534 04.07.2018 Rs.67,421/
15 000535 04.07.2018 Rs.60,218/
16 000536 04.07.2018 Rs.60,218/
17 000537 04.07.2018 Rs.5,603/
18 000538 04.07.2018 Rs.14,885/
19 000539 04.07.2018 Rs.39,939/
20 000540 04.07.2018 Rs.32,393/
21 000541 04.07.2018 Rs.70,246/
22 000542 04.07.2018 Rs.7,386/
23 000543 04.07.2018 Rs.13,699/
24 000549 04.07.2018 Rs.8,458/
25 000550 04.07.2018 Rs.50,506/
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26 000551 04.07.2018 Rs.20,685/
27 000552 04.07.2018 Rs.62,870/
28 000553 05.07.2018 Rs.54,566/
29 000555 04.07.2018 Rs.4,167/
4. The complainant deposited the said cheques for its
realization with his banker Bank of Baroda, Jacob Circle Branch,
Mumbai, however, the same was dishonoured for the reason of 'Exceeds
Arrangement' vide Bank Return Memos dtd. 05.07.2018. The
complainant issued the statutory notice by way of RPAD to the accused
on 01.08.2018, which was duly served upon the accused on
04.08.2018. However, inspite of receipt of notice, the accused did not
pay the cheque amount. Hence, the present complaint.
5. On issuance of process for the aforesaid offence, the
accused appeared before the court and his plea (Exh.8) was recorded
for the said offence to which he pleaded not guilty and claimed to be
tried. The accused took the defence of false implication in his statement
u/sec. 313 of Criminal Procedure Code at (Exh.105).
6. Considering the case of the complainant and defence of
accused, following points arise for my determination to which I
recorded my findings thereon for reasons as follows.
POINTS FOR DETERMINATION FINDINGS
I) Whether it is proved that the accused
has issued the aforementioned 29
cheques drawn on Punjab &
Maharashtra Coop. Bank Ltd. Bhandup
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Branch in favour of the complainant
for discharge of legally enforceable
debt or any other liability ? In the affirmative
II) Whether it is proved that said cheques
were dishonoured on its presentation
to the drawee bank for the reason of
'Exceeds Arrangement'? In the affirmative
III) Whether it is proved that complainant
has issued a valid statutory notice to
the accused and inspite of service of
the said notice on the accused, he has
failed to pay the cheque amount to the
complainant within the prescribed
period? In the affirmative
IV) Whether it is proved that the accused
has committed an offence punishable
u/sec. 138 of N.I.Act? In the affirmative
V) What order? As per final order
REASONS
7. In support of the case, the complainant has deposed as
C.W.1 at Exh4 and produced some documents on record i.e.
a. Invoices at (Exh. 11 to 31)
b. Cheques at (Exh.32 to 60)
c. Demand Notice at (Exh. 61)
d. Postal Receipt at (Exh. 62)
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8. The complainant has also examined Revant Sudarshanam
as CW 2 at (Exh.73) and produced following documents.
a. Authority Letter at (Exh.74)
b. Copy of bank statement of complainant at (Exh.75)
c. Bank return memos at (Exh.76 to 104).
Whereas, the accused has examined himself as defence
witness no. 1 at (Exh.109). He relied upon the documents such as
original copy of his passbook of PMC Bank at (Exh. 110)
9. Heard learned advocate for complainant and accused. The
submissions of both the advocate will be taken into consideration at
relevant point at the time of appreciation of evidence.
As to point no. 1
10. I have gone through the complaint and evidence of
complainant. I have gone through the evidence of accused. I have also
gone through the documents produced by the complainant and accused.
11. To bring home the guilt of the accused for the offence
punishable u/sec. 138 of N.I. Act, it must be proved that,
I) The accused have issued the cheques in favour of complainant in
discharge of liability or legally enforceable debt.
II) The cheques were dishonored on its presentation to the drawee
bank.
III) The complainant has issued the statutory notice to the accused
for demand of cheques amount and
IV)The accused has failed to comply with the demand notice inspite
of its receipt.
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Unless and until all these ingredients are proved, the
accused cannot be convicted under the Act, because all these
ingredients are the back bone of the provision under section 138 of the
Act.
12. First of all, it is pertinent to note that the offence under
section 138 of the Act falls under the category of presumption. Once
cheque is issued under the signature of drawer, then it is presumed to
have issued for and in discharge of debt or any other liability. Liberty is
also given to the accused to rebut the said presumption by leading
cogent evidence and by raising probable defence.
13. I perused the evidence of complainant. The evidence is just
like the stereo copy of the complaint. The complainant has stated all the
relevant facts as mentioned in his complaint. The sum and substance of
the complaint and evidence of complainant is that, in due course of
business and order placed by accused, the complainant has sold and
delivered to the accused requisite goods and raised invoices upon the
accused. The detail of invoices and goods sold for an amount is
mentioned herein above. The complainant deposed that the goods are
sold to the accused for total consideration of Rs.10,93,661/. The
accused did not raise any dispute for quality and quantity of the goods.
Despite multiple requests made by complainant for payment against
receipts of the goods, the accused failed to make full payment.
14. On material particulars, complainant deposed that finally
the accused issued various cheques for the amount aggregating to
Rs.10,07,171/ of his account drawn on PMC Bank, Bhandup Branch.
Complainant deposed that these 29 cheques are issued by accused in
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discharge of legally enforceable debt and liability against him.
15. The learned advocate for the accused conducted cross
examination of complainant and raised multiple defence. The defence is
that the total amount of cheque is not mentioned in complaint or in
evidence. The cheque is obtained by complainant by putting pressure
upon the accused. The invoices produced on record are written by
complainant as per his own choice.
16. The learned advocate for the complainant argued that the
defence of accused find no place in the eyes of law. The complainant
has established his case by leading oral as well as documentary
evidence. The defence raised by accused is not so probable to rebut the
presumption lies in favour of complainant.
17. Considering the rival submissions of both sides, I have gone
through the evidence of complainant, evidence of accused and
documentary evidence submitted by both sides. As far as transaction in
between complainant and accused is concerned, learned advocate for
the accused during crossexamination of CW No. 1 raised no dispute
about delivery of goods, its quantity and quality. It is not the dispute
raised by accused that he has not received goods as such by the
complainant. Not only this, the complainant has produced invoices on
record vide Exh. 11 to 31. The invoices bear the signature of accused.
The invoices are duly proved in evidence of complainant.
18. I perused 29 subject cheques (Exh. 32 to 60) and find that
the accused did not raise the defence about his signature upon cheques.
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In short, there is no dispute that the cheques are not under the
signature of accused. The accused raised the defence that the
complainant has obtained these cheques by putting pressure on the
accused. On the other hand, the accused in his defence evidence
deposed that, he had issued 28 cheques to the complainant for payment
and assured for encashment in every month of calender year. Infact, the
accused has made self contradictory statement. In the crossexamination
of complainant, he has taken the another stand and in his evidence, he
has stated that he has issued the cheques for payment. Under such
circumstances, the defence of accused that complainant has obtained
these cheques by putting pressure on him find no place.
19. As far as the other defence of accused is concerned, only
because total cheque amount is not mentioned will not make much
difference. It is the matter of calculation and it will not go into the root
of case. The invoices are also duly proved in evidence which bears the
signature of accused. The accused has not raised dispute about his
signature on it. Thus, the defence of accused that the complainant has
written the contents of invoices as per his own choice also find no place.
20. In the present case, the complainant has produced on
record the invoices, which clearly goes to show that there was
transaction in between complainant and accused of selling and
purchasing goods. Under such circumstances, inference can be drawn
against the accused that he had issued these 29 subject cheques for
repayment of the outstanding against him. The transaction in between
complainant and accused is legal and valid transaction and does not hit
by any other law. The defence raised by accused is not probable to rebut
the presumption lies in favour of the complainant. Infact, complainant
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has established his case that these 29 cheques are issued by accused in
discharge of legally enforceable debt or any other liability. Hence, in
view of forgoing reasons, I answer point no. 1 in the affirmative.
As to point no. 2
21. In so far as this point is concerned, I perused the complaint,
evidence of complainant and the documents produced on record. The
cheque at (Exh.32 to 60) are presented in drawee bank for encashment.
To prove the dishonour of cheque, the complainant has examined
Revant Sudarshanam (C.W. No.2) who is the witness from Bank of
Baroda, Jacob Circle Branch, Mumbai. He stated that these 29 cheques
were presented in their bank and which are dishonoured due to the
reason 'exceeds arrangement'.
22. In his evidence, the authority letter (Exh. 74) is duly
proved. It is proved that he has given authority to produce document
and to give evidence on behalf of Bank of Baroda. He has also produced
the bank return memos (Exh.76 to 104). These bank return memos are
about these 29 subject cheques. The bank return memos bear the
signature and seal of banker, and thus, under the provision of
Negotiable Instruments Act, the bank return memo under the seal and
signature having evidential value. The learned advocate for the accused
conduced his crossexamination, but his evidence remains unshaken. As
per the bank return memos, the subject cheques were dishonoured on
its presentation to the drawee bank for the reason of 'exceeds
arrangement'. No more discussion is required to prove the said fact.
Accordingly, I answer point no. 2 in the affirmative.
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As to point no. 3.
23. As far as the issuance of demand notice to the accused is
concerned, I have again perused the evidence of the complainant and
the documents in that regard i.e. demand notice (Exh.61). The perusal
of demand notice goes to show that the complainant had issued notice
dated 01.08.2018, which is dispatched on 03.08.2018 vide postal
receipt (Exh. 62). By sending demand notice, the accused was called
upon to pay the entire cheque amount. As far as service of demand
notice is concerned, the accused nowhere raised dispute that he is not
in receipt of said notice. The copy of notice (Exh.61) goes to show that
it is sent to the accused on his correct address. The address of accused
in demand notice and complaint is one and the same. The accused also
not raised dispute in respect of his address mentioned in demand
notice.
24. The learned advocate for the complainant placed his
reliance upon the observations of the Hon'ble Apex Court in case of K.
Bhaskaran V/s. Sankaran Vaidhyan Balan and anr. Reported in
(1999) 7 Supreme Court Cases 510. The Hon'ble Apex Court in para
no 24 held that, no doubt section 138 of the Act does not require that
the notice should be given only by 'post'. Nonetheless, the principle
incorporated in section 27 of General Clauses Act can profitably be
imported in a case where the sender has dispatched the notice by post
with a correct address written on it. Then it can be deemed to have
been served on the sendee unless he proves that it was not really served
and that he was not responsible for such nonservice.
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25. In the case in hand, it is true that postal AD card is not
placed on record. However, the copy of demand notice and postal
receipt is proved on record. The sendee/ accused also not come with a
defence that he has not received the demand notice. Under such
circumstances, it can be held that the accused is in receipt of demand
notice regarding cheque amount. Record is silent that after receipt of
notice till filing complaint, he has paid the entire cheque amount.
Hence, considering all above reasons, I answer point no. 3 in the
affirmative.
As to point no. 4 and 5
26. While dealing with the earlier points, this Court has already
held that, the accused has issued the cheques (Exh. 32 to 60) to the
complainant for discharge of legally enforceable debt or liability. Upon
presentation of the cheque, it was dishonoured due to the reason
'Exceeds Arrangement'. The complainant has complied with other legal
formalities by sending demand notice to the accused within time period.
Accused also received the said notice and did not make the payment.
The case is well within limitation. Complainant has proved all the
essential ingredients of section 138 of the Act. Thus, it is held that the
accused has committed an offence under section 138 of the Act. Hence,
in view of the forgoing reasons, I answer point No. 4 in affirmative.
Consequently, here, I take a pause to hear the accused and his advocate
and the advocate for complainant on the quantum of sentence.
27. Heard the accused and his learned advocate. They
submitted that the accused has paid some amount during pendency of
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this case to the complainant. He is ready to pay remaining amount and
prayed for leniency. The learned advocate for the complainant prayed
to award maximum sentence, fine amount and interest thereon.
28. As per provision of Negotiable Instruments Act, the
punishment for offence punishable under section 138 of N.I. Act is upto
two years imprisonment or with fine which can be twice the amount of
cheque. The punishment provided in Section 138 of N.I. Act cases are
meant to ensure payment of money and threat of jail is only to ensure
recovery, as such, imposition of jail sentence is not mandatory. In the
case in hand, the case is of the year 2018 and transaction was taken
place prior thereto. Near about four years have been elapsed.
29. The learned advocate for the complainant made fair
submission that during pendency of the case, the accused has paid
Rs.1,64,171/ to the complainant. I perused the copy of passbook
(Exh.110) and relevant entries therein, and find that the accused has
paid said amount to the complainant during pendency of this case. The
said fact is required to be taken into consideration while imposing fine
amount and compensation against the accused. It is the commercial
transaction in between the parties, therefore, it would not be justifiable
to impose the fine amount double the cheque amount, rather imposition
of interest would suffice the purpose. Considering the nature of offence,
age of accused and facts and circumstances of the case, following order
would meet the ends of justice. Hence, to give the final effect and
answer to point no. 5, I pass the following order:
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ORDER
1) Accused Raj Kumar Yadav is hereby convicted
U/Sec. 255 (2) of the Code of Criminal Procedure of the offence
punishable U/Sec. 138 of Negotiable Instruments Act and he is
sentenced to suffer simple imprisonment till rising of the court
and to pay a fine amount of Rs.8,43,000/ (Rupees Eight Lakhs
Forty Three Thousand only) within two months and in default of
payment of fine accused shall suffer simple imprisonment of six
months.
2) Complainant to adjust the amount of interim
compensation if any paid by accused during the pendency of case
while assessment of final amount.
3) The accused to surrender to his bail bonds, surety
bonds if any.
4) It is hereby further ordered that the whole of the fine
so recovered be applied for the loss caused to the complainant
including defraying the charges of the prosecution and for the
compensation, U/Sec.357 (1) of the Cr.P.C. i.e. the whole amount
of Rs.8,43,000/ (Rupees Eight Lakhs Forty Three Thousand only)
be paid to the complainant only. Accused is also directed to pay
9% interest p.a. on the said amount from the date of filing of
complaint till the realization of amount.
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5) Copy of this judgment and order be given free of
costs, forthwith to the accused, as per Sec.363 of the Cr.P.C.
(Judgment dictated and pronounced in open court).
(M. V. Chavhan)
Metropolitan Magistrate,
Date : 28.09.2022 70th Court, Mazgaon, Mumbai.
shk*
Judgment dictated on 28.09.2022
Judgment transcribed on 28.09.2022
Judgment signed on 28.09.2022
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