Final Order 1

Order Details: Copy of Judgment
Pdf Text: 43rd Court, Borivali. 1 C.C. No. 4301940/SS/2019.
Received on : 13.05.2019.
Registered on : 13.05.2019.
Decided on : 12.05.2022.
Duration : 02Y 11M 29D.
IN THE COURT OF METROPOLITAN MAGISTRATE,
43rd COURT, BORIVALI, MUMBAI
(BEFORE SHRI. S. D. KAMAT)
C. C. No. : 4301940/SS/2019
(CNR NO.MHMM170081482019 )
Exh.
Shri. SUDHIR BANWARILAL PANDEY
Age 42 years, Occ. Business,
Residing at Flat No. C/33, Sheetal ...COMPLAINANT.
Complex, S.V. Road, Dahisar (E).
Mumbai 400 068.
V/s.
Shri. RAJKUMAR YADAV
C/o. Mr. Babubhai Sekda,
Room No. 6, Shobhnath Mishra
Chawl, Santosh Nagar, Western ...ACCUSED.
Express Highway, Dahisar (East),
Mumbai 400 068.
OFFENCE PUNISHABLE U/SEC. 138 OF THE NEGOTIABLE
INSTRUMENTS ACT.
Shri.R.B.Pandey, Ld. Adv. for the complainant.
Shri.K.K.Shukla, Ld. Adv. for the accused.
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43rd Court, Borivali. 2 C.C. No. 4301940/SS/2019.
JUDGMENT
(Delivered on 12.05.2022)
1. The accused is facing trial for the offence punishable under
section 138 of the Negotiable Instruments Act. Brief facts of the
complainant's case are that
2. It is the case of the complainant that, accused is personally
known to him for last several years. After development of relationship,
accused approached complainant through common friend Shri Fauidar
Yadav for financial help of Rs.3,00,000/ for Flour Mill business
purpose, with assurance to return the amount in few days. On request
of Accused and Shri. Faujdar Yadav, complainant advanced to Accused
the sum of Rs.3,00,000/ as friendly loan. To discharge of the said
legally enforceable liability, the accused had issued a cheque bearing
No.092128, dtd. 02.01.2019, drawn on Union Bank of India, Matunga
(West) branch, Mumbai for the sum of Rs.3,00,000/. There is also a
Promissory note executed on 02.01.2019 between complainant and the
Accused. After instructions from the accused and Shri.Faujdar Yadav,
complainant deposited the said cheque on 06.03.2019 in State Bank of
India, Dahisar(E.) branch, Mumbai for the realization; but the cheque
dishonoured vide memo received on 08.03.2019 with remark
"INSUFFICIENT FUNDS". Thereafter, complainant issued statutory
demand notice dated 04.04.2019 through his Advocate. In spite of
issuance of demand notice, the accused failed to pay the amount of
cheque within stipulated period. Hence, complainant filed complaint
against the accused.
3. Following points arise for my determination. I have recorded
my findings to each of them for the reasons stated there under :
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43rd Court, Borivali. 3 C.C. No. 4301940/SS/2019.
Sr. No. Points Findings
1) Does complainant prove that accused
issued the disputed cheque in his favour
in order to discharge his legal liability
and same was dishonoured ?
Yes.
2) Does he further prove that accused
failed to make payment of cheque
amount within 15 days from the receipt
of the notice dated 04.04.2019 ?
Yes.
3) Whether the accused raised probable
defence to rebut the presumption under
Section 118 and 139 of the Negotiable
Instruments Act ?
No.
4) What order ? Accused convicted.
REASONS
AS TO POINT NOS. 1 TO 4 :
4. The complainant Sudhir Pandey(P.W.1) has filed affidavit
of his examinationinchief at Exh.P6. Complainant further relied on
documents viz. Exh.P7 list of documents, Exh.P8 disputed cheque,
Exh.P9 Promissory Note, Exh.P10 PayinSlip, Exh.P11 cheque return
memo, Exh.P12 demand notice, Exh.P13 postal receipt and Exh.P14
R.P.A.D. acknowledgement.
5. Accused has not disputed his signature appearing upon the
cheque vide Exh.P8. So, when complaint is found within limitation,
and when it happens that the signatures upon the cheque have not been
disputed, complainant is required to discharge initial burden placed on
accused. Thereafter, burden shifts upon the accused to show that the
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43rd Court, Borivali. 4 C.C. No. 4301940/SS/2019.
issuance of the cheque was not for discharging any of their legal
liability. The presumption provided by section 118 and 139 of the
Negotiable Instruments Act plays important role in shifting the burden
upon the accused. If complainant proved his initial case, and if accused
proved to be incapable to show his defence as satisfactory, the
presumption of the two provisions comes in operation, by which it has
to be assumed that the accused issued the cheque to discharge his legal
liability to pay the cheque amount to the complainant.
6. The defence of accused, as transpired from the evidence on
record that they have not issued the disputed cheque in discharge of
any liability. The disputed cheque was given to complainant only for
security purpose. Present complaint has been filed by misusing the said
cheque.
7. Before coming to the part of evidence, I would like to
mention here that in the present matter the affidavit of Examinationin
chief is filed by the complainant on 20.09.2021. Thereafter matter was
posted for crossexamination on behalf of accused. Ample opportunities
were given to the accused to conduct the crossexamination. However
accused have not appeared before this Court nor conducted the cross
examination. Hence nocross order passed against the accused and
matter was posted for further stage of recording statement of accused.
As per order passed below Exh.1, statement of accused u/sec.313
Cr.P.C. stands dispensed with.
8. The reason for dishonor of cheque is “Funds Insufficient”.
The cheque was not dishonored because of “Stop Payment” instructions
to the bank from the drawer, which generally happens in case a
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43rd Court, Borivali. 5 C.C. No. 4301940/SS/2019.
Negotiable Instrument is lost. The cheques came to be deposited and
returned back due to “Funds Insufficient”.
9. Complainant Sudhir Pandey(P.W.1) deposed that, accused
approached him through common friend Shri Fauidar Yadav for
financial help of Rs.3,00,000/ for Flour Mill business purpose. He
advanced to accused Rs.3,00,000/ as friendly loan. To discharge of the
said legally enforceable liability, the accused had issued a cheque
bearing No.092128, dtd. 02.01.2019, drawn on Union Bank of India,
Matunga (West) branch, Mumbai for the sum of Rs.3,00,000/. There
is also a Promissory note executed on 02.01.2019 between him and the
Accused. After instructions from the accused and Shri.Faujdar Yadav,
he deposited the said cheque on 06.03.2019 in State Bank of India,
Dahisar(E.) branch, Mumbai for the realization; but the cheque
dishonoured vide memo received on 08.03.2019 with remark
"INSUFFICIENT FUNDS". Thereafter, he issued statutory demand
notice dated 04.04.2019 through his Advocate to the accused. Despite
issuance of demand notice accused failed to make the cheque payment
within stipulated period. Hence, complainant has established the
ingredients of offence U/sec.138 of N. I. Act. Hence, I answered point
Nos. 1 and 2 are in the affirmative and point No. 3 is in the negative.
10. The accused is not present before this Court at the time of
pronouncement of Judgment to apply for suspension of sentence during
period of appeal. Hence, it will be justified to give directions for issuing
NBW and conviction warrant against the accused. In the result, I
proceed to pass the following order :
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43rd Court, Borivali. 6 C.C. No. 4301940/SS/2019.
O R D E R
1) Accused is hereby convicted under Section 255(2)
of the Code of Criminal Procedure for the offence
punishable under Section 138 of the Negotiable
Instruments Act. Accused is sentenced to suffer Simple
Imprisonment for six (6) months.
2) Accused is directed to pay double of the amount of
cheque in question i.e. amount of Rs.6,00,000/ (Rupees Six
Lakhs) along with simple interest thereon at 9% per annum as
the reasonable quantum of loss from the date of complaint till
its realization, if recovered same to be paid to the complainant
as compensation vide Section 357(3) of the Code of Criminal
Procedure, and in default to suffer simple imprisonment for
(03) Three months.
3) Accused to surrender his bail bonds.
4) Issue NBW and Conviction Warrant against the
accused.
5) Copy of Judgment be given to the accused free of
costs, after its transcription, if the accused appear before
this Court.
(Dictated and pronounced in open Court)
(S. D. Kamat)
Metropolitan Magistrate,
Date : 12.05.2022. 43rd Court, Borivali, Mumbai.
kdc
Dictated on : 12.05.2022.
Typed on : 12.05.2022.
Signed on : 12.05.2022.
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