Order 1

Order Details: Order Below EX 1
Pdf Text: MHMM180007022022
Summary Cases/5800073/2022
Sandeep Chandrasen Murjani Vs. Nitin Mehta
IN THE COURT OF JUDICIAL MAGISTRATE(FIRST CLASS),
58TH COURT, BANDRA, MUMBAI
ORDER BELOW APPLICATION EXH.38
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 he had
purchased flat from the accused. His father had paid the part
consideration amount towards purchasing flat to the accused. Accordingly
an Agreement for Sale was also registered on 17.10.1997. After
completion of project accused sold the flat behind back of his father to
third party. He came to know that accused had committed fraud.
Subsequently MOU was entered into in between parties. Thereby accused
agreed to pay a lumpsum amount of Rs.53 lakhs as a final amount of
settlement to the complainant with understanding to pay the total loss of
amount suffered by them and not the lumpsum amount of settlement. In
discharge of said promise, accused has issued subject two cheques which
were dishonored. Accused has pleaded not guilty and claimed to be tried.
Hence, this application.
3. Accused objected the application vide detailed reply Exh.41
on following important grounds:
(1) The transaction was only for Rs.50,000/-.
(2) The transaction taken place in the year 1994.
(3) The debt is time barred debt.
(4) Lastly, the accused has misused the cheques.
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4. Heard advocate Mr. Jilesh Snaghavi for the complainant and
advocate Mrs. Kavita Saha for the accused.
5. Admittedly, the flat purchase transaction in between
complainant or his father and accused had taken place. Complainant’s
father might have paid whatever amount for part consideration,
subsequently, Agreement for sale is executed and registered in between
them on 17.10.1997. Apart from the Agreement for Sale which is
registered one, the subsequent development in the parties was resulted
into execution of MOU dated 05.02.2021. On going through the Notary
Agreement of MOU there is reason to believe that accused is Proprietor of
M/s. Sidhivinayak Builders, who had agreed to pay Rs.53 lakhs in
installments to the complainant. Though the Agreement indicates issuing
cheques towards security, the accused had promised and expressly agreed
to honor both cheques in default of failure of two installments of
consecutive payments. Thereby he had given blanket authority to deposit
both cheques for entire balance amount. There is no evidence on record
adduced by the accused to show that he has acted upon the terms and
conditions of the payment schedule given in MOU dated 05.02.2021. In
that context, the argument advanced on behalf of accused as to the time
barred debt appears baseless and illegal. The argument of advancing
cheques towards security can not be accepted in the instance of breach of
terms and conditions.
6. The cheques Exh.25 and Exh.26 dated 15.11.2021 appears to
be drawn on account of M/s. Sidhivinayak Builders under signature of
accused. A cheque is not a mere piece of paper to presume it worthless
only on bald allegation of issuing towards security. The same becomes
legal and valid as on existence of legal obligation. In legal language the
cheque is deemed to be an acknowledgment of the existence of legal debt
or legal liability by the accused whatever it may be out of transaction in
the year 1994. Therefore, considering the cheques on record, there is
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Order below Exh.38
strong prima facie evidence to accept presumption of law under section
139 to hold existence of legal liability towards the accused.
7. Considering the prima facie evidence on record, this is a fit
case to invoke the discretionary powers conferred upon this court under
section 143A of the Negotiable Instrument Act, as law provides fastest
remedy for the transaction carried on the basis of negotiable instruments.
No prejudice will be caused to the accused considering increasing value of
the property in comparison to the rates of the property in the year 1994
with the rates in the year 2025. The accused has sold the flat under
Agreement without adopting legal steps. The legal obligations still
continues on the part of accused in absence of cancellation of Agreement
of sale executed in the year 1997. It is sweet choice of the parties whether
to approach before Civil Court or Criminal Court for either seeking relief
of specific performance or to knock the doors of Criminal Court for
dishonor of the cheque. Both being independent legal remedies available
to the parties, I deem fit to grant an interim compensation considering
further time span for conclusion of the rial. Hence, I pass following order.
O R D E R
1) The application is allowed.
2) Accused is directed to make payment of 20% of
cheques amount within 60 days from today to the
complainant as an interim compensation.
3) Order dictated and pronounced in open court.
( M. P. Saraf )
Judicial Magistrate, First Class,
Date : 09.04.2025 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 : 09.04.2025
Transcribed and Typed on : 09.04.2025
Order printed and Signed on : 09.04.2025
Order Uploaded on : 09.04.2025
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