Interim Order 1

Order Details: Order Below EX 1
Pdf Text: MHMM180006242022
Summary Cases/5800092/2022
Bernice Freddy Misquitta Vs. Brahmadev Shukla
IN THE COURT OF JUDICIAL MAGISTRATE(FIRST CLASS),
58TH COURT, BANDRA, MUMBAI
ORDER BELOW APPLICATION EXH.8
1. This is the application for an interim compensation filed
u/sec.143-A of the Negotiable Instrument Act.
2. It is contended on behalf of the complainant that the
accused is drawer of the cheque who pleaded not guilty and claimed to
be tried. There is default in cheque payment of Rs.42,02,000/- alleged
to be paid as consideration price for purchasing a flat in the project of
the accused known as DGS Sheetal Airwings CHS Ltd., at Kalina,
Santacruz, Mumbai. Hence this application.
3. The accused has objected the application vide detailed
reply at Exh.31. The accused objected the application on various
grounds. One of them is that the complainant has not made party to
the Firm or Company named M/s.Toughcons Realtors Pvt. Ltd. of which
he is one of the director. In short, the complaint is not maintainable on
the technical ground of not adding appropriate parties, not issuing
statutory notice to the Company etc. However, advocate for accused
admits the signature of the accused on the disputed cheques.
4. Heard complainant in person. Her advocate absent. Heard
advocate Mr.Anupam Sharma for the accused.
5. The prime and core issue for the consideration under
section 143-A is whether the cheques are issued by the accused in
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Order below Exh.8
discharge of legal liability or any debt. Needless to state that the
accused has not denied issuance of cheques and his signature over the
subject cheques produced alongwith evidence affidavit at Exh.18 to 21.
6. So far as submission as to technical ground harping the
maintainability of the complaint, such as accused is not the proprietor
of M/s.Toughcons Realtors Private Limited, statutory notice is not
issued to the directors of the company etc. are concerned, the same can
be considered during the trial while giving opportunity to both parties
to lead evidence. At this juncture, the complaint came to be filed on
the knowledge of the complainant in respect of the accused in person
who has issued the cheques to her in discharge of legal liability by
repayment of alleged amount of consideration paid to him for
purchasing the flat. It may happen that complainant might not be
knowing the legal status of the company of which the accused
pretending her to be the Proprietor. Therefore, at this juncture the
ground taken by advocate in defence will not come into play nor vitiate
the complaint on the point of maintainability nor affect her application
for interim compensation.
7. Issuance of cheque that is printed cheques with signature
of accused is more than sufficient to hold the alleged transaction in
between parties. The cheques are not mere piece of paper to be issued
in love and affection. Section 139 of the Act draws the presumption in
favour of holder of the cheques. Further, it is not the case of the
accused that he has replied statutory notice Exh.28 issued by the
complainant. As per the submissions of advocate for accused, accused is
director of said company. The case would have been different, if the
accused would have replied the statutory notice and made concrete
base for his defence, so as to accept it probable even at the earlier stage
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of the proceeding.
8. There is prima facie evidence on record to hold the legal
transaction in between the parties coupled with issuing subject cheques
towards the legally enforceable liability or other debt by the accused in
favour of complainant. The trial will take its own time to finalize the
rights of the parties. In comparison to prima facie evidence on record, I
do not found any legal substance in the defence of accused. The
technical grounds raised by the accused are not going to the root of the
case resulting into termination of trial by the defence of the accused.
While equating the statutory rights of the parties, the needle of balance
goes towards the complainant. The intention of statute is to protect the
genuine creditors and not to defrauders. Therefore, this is a fit case to
invoke the powers conferred upon this court under section 143-A of the
Negotiable Instrument Act, to grant an ad interim compensation.
Hence, I pass following order.
O R D E R
1) The application is allowed.
2) The accused is directed to make payment of 20%
of cheque amount within 60 days from today to
the complainant as an interim compensation.
3) Order be uploaded forthwith on CIS, so as to
enable the accused to challenge the order before
the Hon’ble Sessions Court.
4) Order dictated and pronounced in open court.
( M. P. Saraf )
Judicial Magistrate, First Class,
Date : 13.12.2024 58th Court, Bandra, Mumbai.
J.O.Code: MH01362
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CERTIFICATE
I affirm that the contents of this P.D.F. file Order are same, word to word as per the
original Order.
Name of Stenographer : Mrs. Aditi Ravikiran Dalvi
Court : Judicial Magistrate (First Class), 58th Court,
Bandra, Mumbai.
Dictated in open court on : 13.12.2024
Transcribed and Typed on : 13.12.2024
Order printed and Signed on : 13.12.2024
Order Uploaded on : 13.12.2024
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