Final Order 3

Order Details: Copy of Judgment
Pdf Text: Summons Cases SS/5800096/2021
Judgment Exh.41
MHMM180007672021
Filed on : 04.02.2021
Registered on: 05.02.2021
Decided on : 22.01.2025
Duration : 03-Y 11-M 18-D
IN THE COURT OF JUDICIAL MAGISTRATE(FIRST CLASS),
58TH COURT, BANDRA, MUMBAI.
(Presided over by M. P. Saraf)
Summons Cases SS/5800096/2021
(CNR NO.MHMM180007672021)
Exh.41
MR.SALIM NOORALI UKANI
Age : 71 years, R/o.18/73, Samudra
Darshan, K.C.Marg, Bandra Reclamation,
Bandra(W), Mumbai-400 050.
…. Complainant.
Versus
MR.SHYAM PRABHAKAR BEKAL
Age : 56 years, Occ. Business,
R/o.18/73, Samudra Darshan, K.C.Marg,
Bandra Reclamation, Bandra(W), Mumbai-
400 050. also at 7, Galaxy Apartment, 3rd
Floor, B.J.Road, Bandra(W), Mumbai-400
050. also at 23/31, Sea View, 3rd Floor,
MHB Colony, Reclamation, Bandra(W),
Mumbai – 400 050.
…. Accused.
Offence U/sec.138 of the Negotiable Instruments Act, 1881.
Mr. Kaustubh Kishor Redkar Advocate for the complainant.
Mr. S.A.Wasid and Mr.Savio Viegas Advocate for the accused.
JUDGMENT
(Delivered on 22.01.2025)
This is the complaint filed under section 138 of The
Negotiable Instrument Act for the reason of dishonor of cheque alleged
to be issued against the payment of monthly rent and rent of furniture
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provided to the accused under Leave and Licence Agreement.
2. The case of the complainant in nut shell is that –
That complainant is owner of premises at 18/72, Samudra
Darshan, MHB Colony, Bandra(W), Mumbai. He had executed Leave
and Licence Agreement dated 02.01.2019 for the period of 24 months
and rented the premises to the accused. Accused was to pay monthly
rent of Rs.45,000/- coupled with furniture rent of Rs.5,000/- per
month. In discharge of said liability accused had issued subject cheque
in question in favour of the complainant. On depositing said cheque,
the same was dishonoured and returned unpaid with remark ‘Payment
Stopped by Drawer’ vide cheque return memo dated 03.12.2020.
Accused was called upon to make the payment vide statutory demand
notice dated 22.12.2020. Accused received the same on 23.12.2020.
However, accused neglected to make payment and gave false reply. The
notice reply was received by the complainant on 01.01.2021. Hence,
this complaint.
3. My Ld. Predecessor has taken cognizance of the complaint
and issued process against the accused under section 138 of Negotiable
Instruments Act. On appearance of accused, the particulars of offence
were stated to him in vernacular to which the accused pleaded not
guilty vide Plea Exh.9 and claimed to be tried. The case was tried as
summons trial.
4. The statement of accused under section 313 of Code of
Criminal Procedure was recorded at Exh.34. Accused has taken defence
that he had agreed to pay only rent of premises and not furniture rent.
Complainant is not owner of the premises. He had no authority to
sublet the premises on Leave and Licence. In short, he has questioned
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legal liability against him. He has also taken defence of issuing both
cheques towards loan and misuse of the same by the complainant.
According to him the complainant approached him in the month of
March 2020 for money by friendly loan for the sum of Rs.1,20,000/- to
take care of his gambling debts. He obtained both cheques for showing
the person who were threatening him and his family for money.
5. Heard advocate Mr. Kaustubh Kishor Redkar for the
complainant and advocate Mr. S.A.Vasid and Mr.Savio Viegas for the
accused.
6. On hearing both sides following points arise for my
determination to which I have recorded my findings with reasons
thereto as follows-
Sr.No. POINTS FINDINGS
1. Whether the accused has drawn subject
cheque bearing No.340970 dated 04.09.2020
drawn on IDBI Bank, Bandra(W), Mumbai in
favour of the complainant in discharge of the
legally enforceable debt or other liability? : No.
2. Whether it is proved that cheque in question
were dishonored for the reason ‘Payment
Stopped By Drawer’ and returned unpaid to
the complainant?
: Yes.
3. Is it proved that the accused has received
demand notice dated 22.12.2020 issued
u/sec.138(b) of the Negotiable Instruments
Act sent by the complainant making demand
of payment of said cheque amount in writing
within one month of receipt of information
from the bank regarding dishonour of
cheque?
: Yes.
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4. Whether it is proved that despite service of
demand notice, the accused failed to pay the
cheque amount within statutory period of 15
days after receiving notice and thereby
committed an offence punishable under
section 138 of the Negotiable Instruments
Act?
: No.
5. What order? : Accused is held
not guilty and
acquitted.
REASONS
7. In support of averments made in the complaint,
complainant has examined himself at Exh.11. Besides oral evidence
complainant has relied upon the disputed cheque bearing No.340970
dated 04.09.2020 at Exh.13, cheque return memo dated 03.12.2020 at
Exh.14, office copy of demand notice dated 22.12.2020 at Exh.15,
Registered Post Postal Receipts at Exh.16 and 17, A.D.Card at Exh.19,
returned envelop at Exh.18, reply to the demand notice dated
29.12.2020 at Exh.20 etc. and closed evidence. Accused has not
examined himself but produced letter dated 18.11.2004 issued by
Housing Development Board under RTI, Copy of undertaking given by
the wife of the complainant on 11.11.2004 at Exh.29 and photo copies
of letter issued by the accused to complainant on 17.12.2020 etc.
AS TO POINT NO.1:-
8. The evidence of the complainant in affidavit in lieu of
examination in chief is replica of his complaint. His evidence discloses
that the rented premises is not recorded in his name with the record of
Co-operative Housing Society. The flat is still in the name of D.C.Shah
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with the Society record. Rs.18 lakhs are due towards maintenance
against said flat. He had not obtained permission of the society to rent
out the flat to the accused.
9. Mainly his evidence unfolds that he had executed Leave
and Licence Agreement with the accused on 02.01.2019 for period of
24 months and received security deposit of Rs.2 lakhs from the
accused. The flat is owned by his wife to whom the housing board has
allotted the flat. His wife has not executed in Power of Attorney in his
favour to execute Leave and Licence Agreement in favour of the
accused. His wife has not obtained permission of Maharashtra Housing
Board for executing Leave and Licence Agreement in favour of the
accused. His evidence further discloses that his wife has given
undertaking to Maharashtra Housing Board not to keep tenant in said
flat. Their dispute went upto Bandra Police station etc.
10. Complainant has not produced the Leave and Licence
Agreement alleged to be executed by him in favour of the accused in
regards the rented premises. Except oral evidence of complainant there
is nothing on record to accept the monthly compensation of
Rs.45,000/- per month and Rs.5,000/- towards monthly furniture rent.
The complainant has came with a case of issuing subject cheque Exh.13
towards furniture rent. As execution of Leave and Licence Agreement
being admitted, the photo copy of it can be relied. The photo copy of
Leave and Licence Agreement shows monthly compensation of
Rs.45,000/- per month. It also shows receiving security deposit of Rs.2
lakhs by the complainant from the accused.
11. Now question crops up even if it is assumed for the sake of
arguments that there was an Oral Agreement in between complainant
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and accused as to making payment of furniture rent @ Rs.5,000/- per
month in addition to monthly compensation of Rs.45,000/-, whether
the Leave and Licence Agreement is legal and valid? Can it be enforced
for consideration of existence of legal debt or liability within the
meaning of explanation to section 138 of the Act?
12. Admittedly, the flat belongs to the wife of complainant.
The same was allotted to her to occupy the same for herself and not to
let out it to third party by the Maharashtra Housing Board. The
undertaking given by the wife of complainant on 11.11.2004 to the
Housing Board to that effect shows that in case of breach of this
undertaking, the wife of complainant is liable for eviction from the
tenement that is rented premises. Secondly, wife of complainant has
not issued any Power of Attorney in favour of her husband that is
complainant to execute Leave and Licence Agreement dated
02.01.2019. Therefore, considering this legal aspect, the Leave and
Licence Agreement in between parties itself appears illegal and
void ab
initio. The same can not be enforced for the consideration of existence
of legal debt or liability in the eyes of law.
13. As stated above, there is no cogent evidence to accept Oral
Agreement for giving furniture rent of Rs.5,000/- per month in addition
to monthly compensation. The complainant has executed the Leave and
Licence Agreement without legal authority. Even if the owner might be
his wife but that does not authorize him to execute Leave and Licence
Agreement as the same was allotted to her with a specific purpose of
staying in said premises. Complainant’s own oral evidence fails to
establish said fact of Oral Agreement for additional Furniture rent and
issuing subject cheque in discharge of said liability.
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14. It is the defence of the accused that he had paid security
deposit of Rs.2 lakhs to the complainant. He demanded the security
deposit before vacating premises but complainant has not refunded the
same. During cross examination complainant has admitted payment of
security deposit by the accused. The cheque is dated 04.09.2020 for
Rs.60,000/- towards alleged unproved additional furniture rent. If it is
taken into consideration, Rs.1,50,000/- is still with the complainant
towards said security deposit. Therefore, no legal liability exist on the
date of issuance of cheque towards the accused. On the contrary, the
complainant would be indebted to the accused for not returning the
security deposit with him.
15. It is settled law by virtue of Judgment of Hon’ble Supreme
Court In the case of
M/s. Kumar Exports Vs. M/s. Sharma Carpets
(Criminal Appeal No.2045 of 2008), Hon'ble Supreme Court has held
that,
“
The use of phrase “until the contrary is proved” in section
118 of the Act and use of the words “unless the contrary is
proved” in section 139 of the Act read with definitions of
“may presume” and “shall presume” as given in Section 4
of the Evidence Act, makes it at once clear that
presumption to be raised under both the provisions are
rebuttable. When a presumption is rebuttable, it only
points out that the party on whom lies the duty of going
forward with evidence, on the fact presumed and when
that party has produced evidence fairly and reasonably
tending to show that the real fact is not as presumed, the
purpose of the presumption is over. The accused in a trial
under section 138 of the Act has two options. He can
either show that consideration and debt did not exist or
that under the particular circumstances of the case the non-
existence of consideration and debt is so probable that a
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prudent man ought to suppose that no consideration and
debt existed. To rebut the statutory presumptions an
accused is not expected to prove his defence beyond
reasonable doubt as is expected of the complainant in a
criminal trial.”
16. The accused has obtained various admissions in cross
examination of the complainant. The same are more than sufficient to
rebut the presumption under section 139 of the Act. By seeking said
admissions accused has brought on record the illegality committed on
the part of complainant resulting into no subsisting legal debt or
enforceable liability. Therefore, even though accused has not entered
into witness box, he has successfully rebutted the presumption of law.
17. For the commission of an offence under section 138, the
dishonoured cheque must represent a legally enforceable debt on the
date of maturity or presentation. As stated above complainant has
failed to prove the alleged oral agreement for furniture rent and issuing
cheque in discharge of such liability by the accused. In fact, the entire
transaction of subletting the premises allotted by Maharashtra Housing
Board itself is illegal in the eyes of law. In addition to that the Leave
and Licence Agreement executed by the complainant is also illegal and
void ab initio. Furthermore, the complainant is already withheld the
security deposit of Rs.1,50,000/- without paying the same before the
end of the licence period. Resultant to the same no liability or
obligation remains on the part of the accused to honour the cheque for
Rs.60,000/- when his money is already with the complainant. Proving
legally enforceable liability or legal debt to draw the presumption
under section 139 of the Act is
sine qua non. Complainant has
miserably failed to said legal aspects. Therefore, the cheque can not be
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said to be issued in discharge of legal liability. Hence, I answer the
point No.1 in the negative.
AS TO POINT NO.2 :
18. The accused himself has came with a defecne of making
stop payment for the disputed cheque on account of alleged illegal
activity of the complainant turning the cheque into alleged furniture
rent. The reason of dishonour of cheque is not in dispute. Hence, I
answer the point No.2 in the affirmative.
AS TO POINT NO.3 :
19. Receipt of the notice by the accused is also not in dispute.
Accused has categorically replied the statutory notice sent by the
complainant vide his notice reply dated 29.12.2020 placed at Exh.20.
The contentions raised by the accused vide his notice reply are not
denied by the complainant by issuing reply to notice reply in rejoinder.
For issuing statutory notice under section 138(b) of the Act, the debt
must be the legal debt. The point of receipt of notice by the accused not
being in dispute, I answer point No.3 in the affirmative.
AS TO POINT NOS.4 AND 5:
20. For proving the guilt of the accused under section 138 of
the Act, the complainant has to prove contents of complaint, existence
of legal debt or enforceable liability, issuance of cheque in discharge of
such legal liability. The complainant has failed to prove existence of
legal liability or debt towards accused on the date of cheque.
Complainant has also failed to prove issuance of cheque in discharge of
such legal liability attracting section 138 of the Negotiable Instrument
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Act. Therefore, the penal liability under section 138 would not arose at
all against the accused.
21. The letter dated 17.12.2020 issued by the accused to the
complainant clearly shows his demand of refundable security deposit of
Rs.1,50,000/-. All these aspects including police complaints done by
both parties are not reflected in the statutory notice given by the
complainant. The suppression of material facts also creates doubt as to
the case of the complainant. When the basic transaction of subletting
the premises allotted by Maharashtra Housing Board with a specific
purpose itself is violated by an illegal agreement of Leave and Licence,
the question can not arose for attracting the criminal liability under
section 138 merely on the basis of custody of cheque of the accused.
Hence, I answer point No.4 in the negative.
22. Section 138 creates a deeming offence. The provisos
prescribed stipulations to safeguard the drawer of the cheque by
providing them the opportunity of responding to the notice and an
opportunity to repay the cheque amount. Accused has replied the
notice shifting the burden of proof upon the complainant to prove legal
transaction as well as existence of legal debt or liability on the date of
cheque. Complainant has failed to discharge said burden upon him.
Therefore, accused can not be held guilty under section 138 of the
Negotiable Instrument Act. In view of above findings and evidence on
record, I pass following order.
ORDER
1. The accused is acquitted of the offence punishable under
section 138 of the Negotiable Instruments Act, 1881 vide
section 255(1) of The Criminal Procedure Code.
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2. Bail bond of accused stands cancelled.
3. The accused to comply sec.437(A) of Cr.P.C. and furnish
surety for further period of six months from today.
(Judgment dictated and pronounced in open Court).
( M. P. Saraf )
Judicial Magistrate(First Class),
Date : 22.01.2025 58th Court, Bandra, Mumbai.
J.O.Code: MH01362
CERTIFICATE
I affirm that the contents of this P.D.F. file Judgment are same, word to word as per
the original Judgment.
Name of Stenographer : Mrs.Aditi Ravikiran Dalvi
Court : Judicial Magistrate(First Class), 58th Court,
Bandra, Mumbai.
Dictated in open court on : 22.01.2025.
Transcribed and Typed on : 22.01.2025.
Judgment printed and Signed on : 22.01.2025.
Judgment Uploaded on : 22.01.2025.
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