Final Order 1

Order Details: Copy of Judgment .
Pdf Text: Received on : 12.10.2018
Registered on : 12.10.2018
Decided on : 09.08.2019
Duration : 28 : 09 : 00
D. : M. : Yr.
Exhibit No.
IN THE COURT OF THE METROPOLITAN MAGISTRATE,
6TH COURT, MAZGAON (SEWRI), MUMBAI
(Presided over by R.S. Pere)
(JUDGMENT U/SEC. 355 OF THE Cr. P. C.)
(a) The serial No. of the case; : 0603092/SS/2018
CNR No. MHMM120518802018
(b) The date of commission of the
offence;
: 03.08.2018
(c) The name of the complainant
(if any) ;
: Chhathiram Ramlal Kanaujia
R/o. Gulshan Hotel, Dockyard
Road, Mazgaon, Mumbai
400010
(d) The name of the accused person
and his parentage and residence;
: 1) Islam Ali A. Shaikh
Room No.5, Santosh Bhuvan,
Hanifbhai Chawl, Sitaram
Nagar, Nallasopara East, Tehsil
Vasai, Palghar 401 209
2) Mrs. Nasreen Bano Islam
Ali Shaikh
(Complaint dismissed against
accused No.2 by order dated
22.10.2018.)
(e) The offence complained of or
proved;
: U/Sec. 138 of Negotiable
Instrument Act, 1881.
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(f) The plea of the accused and
his examination( if any);
: Accused pleaded not guilty.
(g) The final order; : Accused No.1 is conviction.
(h) The date of such order; : 09.08.2019
Appearance: Adv. Shri. Hamid Sayyed for complainant
Adv. Shri. Ketan Barot for accused.
J U D G M E N T
(Delivered on 9th day of August 2019)
1. The accused No.1 is being tried for the offence punishable under section
138 of the Negotiable Instrument Act, 1881 (herein after referred to as 'the N. I.
Act').
2. In brief the case of complainant is as under:
The accused Nos.1 & 2 projected to be owner and occupier of Gala
No.4, at village Pelhar, Yadav Pada, Nallasopara (E), Tehsil Vasai, Dist. Palghar and
agreed to sell the said property admeasuring 10 X 33 sq. feet and valued of
Rs.4,50,000/. The complainant was ready to purchase the said Gala No.4. He has
given Rs.2,50,000/ by way of cash and cheques and Rs.6000/ for documentation
to accused No.1 in presence of his wife i.e. accused No.2. Accused accepted total
sum of Rs.2,56,000/ as a part payment for the sale of said Gala. Accused No.2
executed an agreement for sale on 23.12.2016 duly signed. Accused Nos.1 & 2 had
taken the said part payment with an assurance to hand over the peaceful and
incumbrance free possession of the said gala to the complainant and the
complainant to pay the remaining amount of Rs.2,00,000/ at the time of handing
over the keys of the said gala. Accused Nos.1 & 2 did not perform their part of
obligation though on the successive demands and requests of complainant for the
considerable period, ultimately accused agreed Nos.1 & 2 to return the amount of
Rs.2,56,000/ paid for the sale of above said gala.
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3. Accused No.1 issued in discharge of their aforesaid liability and towards
repayment of the said amount cheque bearing No.028911 for Rs.2,56,000/ dated
02.08.2018 drawn on IDBI Bank Ltd., Achole Road Branch, Nallasopara (E)
(Hereinafter referred as disputed cheque). The complainant presented the said
disputed cheque into his bank account i.e. Union Bank of India, Darukhana Branch
on 02.08.2018. The said cheque was returned with cheque return memo dated
03.08.2018 with endorsements “Funds Insufficient”.
4. The complainant sent statutory notice dated 24.08.2018 by registered
post to the accused through his advocate. Accused has duly received the said notice.
Inspite of receipt of demand notice accused failed to pay disputed cheques amount.
Therefore, complainant has filed this case against the accused within limitation &
prayed that, accused be punished as per law.
5. By order dated 22.10.2018 my Learned Predecessor issued process
against accused No.1 only & dismissed complaint against accused No.2.
6. After appearance accused No.1 pleaded not guilty and claimed to be
tried, when particulars of the offence complained of were read over and explained
to him in vernacular by my Learned Predecessor vide Exh.11.
7. The statement of accused No.1 under section 313 of the Code of
Criminal Procedure, 1973 was recorded by me vide Exh.35.
8. Heard both sides. On going through all the evidence, cited case laws
and material placed on record, following points arise for my determination & I have
recorded my findings thereon for the reasons given below :
Sr. No. Points Findings
1. Whether the accused No.1 has In affirmative
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committed an offence punishable u/s.
138 of the N. I. Act?
2. What Order ? As per final order
REASONS
9. In order to prove its case complainant has examined himself below
Exh.12. He has reiterated all the facts of complaint in his Chief Examination.
Complainant has also relied upon following documents :
i) Agreement dated 23.12.2016 Exh.14
ii) Disputed cheque Exh.15
iii) Bank Memo (Union Bank of India) Exh.16
iv) Postal receipt Exh.17
v) Bank Memo (IDBI Bank) Exh.18
vi) Demand notice dated 24.08.2018 Exh.19
vii) Acknowledgement Card Exh.20
The complainant also examined bank officer Sonu Sagar (C.W. No.2)
vide Exh.23. He has produced authority letter Exh.24, account statement of accused
No.1 Exh.25 & inward cheque return memo Exh.26. Complainant also examined
Shabbir Ali Sulaphan (C.W. No.3) vide Exh.27 in support of his case who is witness
of execution of agreement dated 23.12.2016 Exh.14. By way of filing pursis Exh.30
complainant closed his evidence.
10. Accused in support of his defence has not examined himself and any
witness.
11. Before adverting to the appreciation of the propounded evidence, it is a
worthwhile to have glanced at ingredients which are to be satisfied of making the
case under section 138 of the N.I. Act are :
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I) The drawer must have drawn a cheque of account maintained by
him in bank for payment of a certain amount of money to another
person from out of that account for discharge of any debt or other
liability.
II) The cheque has been presented to the bank within a period of six
months from the date on which it is drawn or within the period of
its validity whichever is earlier;
III) 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 it exceeds the amount
arranged to be paid from that account by an agreement made with
the drawee bank.
IV) The payee or the holder in due course of the cheque, makes a
demand for payment of the said amount of money by giving a
notice in writing to the drawer of the cheque, within 30 days of the
receipt of information by him from the bank regarding the return
of the cheque as unpaid and
V) The drawer of such cheque fails to make the payment of the
cheque amount to the payee or holder in due course of the cheque
within 15 days of the receipt of the demand notice.
12. In addition to above, the ingredients which are to be satisfied for taking
cognizance of the offence under section 142 of the N. I. Act are, a complaint in
writing is required to be made by the payee or as the case may be, by the holder in
due course of the cheque and such complaint has to be made within one month of
the date on which the cause of action arises under clause (C) of the proviso to
section 138 of the N. I. Act.
AS TO POINT NO. 1 :
13. In this case complainant stated in his Chief Examination that accused
issued a disputed cheque to him towards legally enforceable liability & said cheque
came to be dishonoured for the reason 'Funds Insufficient'. Thereafter, inspite of
receipt of demand notice accused failed to repay disputed cheque amount within
stipulated period prescribed by Law & therefore, he has filed complaint against
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accused within period of limitation. The complainant produced all relevant
documents on record.
14. There is presumption under section 118 and 139 of the N. I. Act in
favour of the holder of the cheque, untill contrary is proved. Presumption is in
favour of holder of the cheque that it was drawn for discharge of debt of liabilities.
However, it is rebuttable one and accused can rebut it without entering into witness
box, through crossexamination of complainant and his witness. In this case accused
No.1 crossexamined complainant & his witnesses therefore, it is to be seen that
whether accused rebutted presumption under section 118 and 139 of the N. I. Act.
15. In this case accused No.1 has not denied the fact of issuance of disputed
cheque & his signature on it. The defence of the accused No.1 is that he has issued
blank disputed cheque to complainant through Gulam Rasul towards returning
token amount of Rs.5000/ taken by his wife from complainant. I do not found
substance in the defence of the accused because if really blank disputed cheque was
given for token amount of Rs.5000/ then accused No.1 could have examined Gulam
Rasul who is his brotherinlaw to prove his defence. But, accused No.1 has not
examined Gulam Rasul. Therefore, inference is liable to drawn that just to avoid
liability to pay disputed cheque amount accused No.1 taken false defence. The
Gulam Rasul is also a witness on agreement Exh.14.
16. The another defence taken by the accused No.1 is that, he has not
issued any writing stating that, he will pay an amount of Rs.2,56,000/. I do not
found substance in the defence of accused because in agreement Exh.14 it is clearly
mentioned that, an amount of Rs.2,50,000/ received by Nasreen Bano Islam Ali
Shaikh (accused No.2) i.e. wife of accused No.1. Accused No.1 nowhere stated that,
he has no any concern with Nasreen Bano Islam Ali Shaikh (accused No.2). Accused
No.1 issued disputed cheque to complainant. From the conduct of accused No.1
only inference can be drawn that, he has accepted liability of his wife (accused
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No.2) & issued disputed cheque to complainant. The disputed cheque itself is a
document showing that, accused No.1 accepted liability for his wife (accused No.2).
17. Complainant stated during his crossexamination that, in 2015 – 2016
he was getting salary of Rs.18 to 20 thousand per month. It shows the financial
capacity of complainant that, he can pay disputed cheque amount to accused.
18. C.W. No.3 Shabbir has supported the case of complainant who is
witness on agreement Exh.14. Complainant & C.W. No.3 Shabbir specifically stated
in their chiefexamination that, accused No.1 issued disputed cheque towards
discharge of legal liability of himself & his wife (accused No.2). C.W. No.2 Sonu &
C.W. No.3 Shabbir are independent witnesses & I do not found any reason to
disbelieve their evidence.
19. Therefore, after giving thoughtful consideration to evidence on record,
it cannot be said that accused rebutted presumption under section 118 and 139 of
the N.I. Act.
20. The evidence led by complainant inspired the confidence of the Court.
As per Section 3 of the Indian Evidence Act 'A fact is said to prove when, after
considering the matters before it the court either believes it to exist, or considers its
existence so probable that, a prudent man ought, under the circumstances of the
particular case, to act upon the supposition that it exists'. In this case complainant
has duly proved his case against accused No.1 under section 138 of the N. I. Act.
Hence, I answer point No. 1 in affirmative.
AS TO POINT NO. 2 :
21. Complainant by adducing the oral and documentary evidence proved
beyond reasonable doubt that accused is guilty of committing the offence under
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section 138 of the N. I. Act. Considering the economic nature of offence, benefit of
the probation of offenders Act 1958 cannot be given to the accused No.1.
22. The object and purpose of the N. I. Act, 1881, if taken into
consideration, it reflects a basic scheme that party should get money back as early as
possible. Present complaint is filed in the year 2018. Accused No.1 has kept out
complainant from his amount for near about one year. Therefore, complainant is
entitled for compensation from accused No.1 as per Section 357(3) of the Cr. P. C.
1973. While granting compensation dues under section 117 of the N. I. Act 1881
must also be taken into consideration. In the present case disputed cheque is of
Rs.2,56,000/ . Therefore, considering the pendency of case is near about one year
and expenses for lodging complaint, granting compensation of Rs.3 lakhs would
certainly suffice the purpose of justice. As far as sentence of Imprisonment is
concerned the status of accused, the amount granted as compensation and the
amount of the disputed cheque needs to be considered. Considering all these facts
sentencing the accused No.1 to Simple Imprisonment for three months as a
substantive sentence would be proper. Therefore, in the light of above discussion, I
proceed to pass following order:
O R D E R
1. Accused No.1 Islam Ali A. Shaikh is convicted for the offence punishable
under section 138 of the N. I. Act, vide under section 255 (2) of the Criminal
Procedure Code and accused is sentenced to suffer Simple Imprisonment for
the period of 03 (three) months.
2. Accused No.1 is further directed to pay compensation of Rs.3,00,000/
(Rupees Three Lakhs only) to the complainant as per section 357 (3) of the
Cr. P. C. 1973 within the period of 60 days from the date of this order.
3. In case accused No.1 commits default in paying the awarded compensation
accused shall suffer Simple Imprisonment for further period of 03 (three)
months.
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4. Accused No.1 to surrender his bail bonds.
5. Copy of this judgment be given free of cost to the accused No.1.
Sd/
(R. S. Pere)
Mumbai Metropolitan Magistrate,
Date : 09.08.2019 6th Court, Mazgaon (Sewree), Mumbai
Typed on : 09.08.2019
Signed on : 09.08.2019
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