Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 C.C.No.3061/SS/2017.
Filed on : 29.11.2017.
Decided on : 30.09.2019.
Duration : 01Y 10M 01D.
IN THE COURT OF METROPOLITAN MAGISTRATE,
58TH COURT, BANDRA, MUMBAI.
(Presided over by P.V. Bulbule)
C.C. No.3061/SS/2017.
(CNR NO.MHMM180009142018)
Exh.No.: 24.
Mr.VIJAY BAILUR.
Adult, Occu. : Retired.
Indian Inhabitant, Residing
at Flat No.903/904,
Tower – 3, 9th Floor,
Rustomjee Ozone,
Goregaon (West), Mumbai400 062. ....Complainant.
V/s.
Mr.VIVEK AGARWAL.
Adult, Occu. : Business,
Indian Inhabitant, presently
Residing at Flat No.701,
7th Floor, Sankalpita
Coop. Housing Society Ltd.,
16th Road, Bandra(West),
Mumbai – 400 050. ..... Accused.
Offence U/sec.138 of the Negotiable Instruments Act, 1881.
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Shri.Anil A.Shukla and
Adv.Veena B.Shukla.
Ld. advocate for the complainant.
Smt.Chandrakala R.Salunke. Ld. advocate for the accused.
JUDGMENT
(Delivered on 30/09/2019)
The accused is facing trial for commission of an offence
punishable under section 138 of the Negotiable Instruments Act
(hereinafter referred to as 'The Act' for the sake of brevity.)
2. Brief facts are as under:
The complainant is coowner of the flat No.701, 7 th floor,
Sankalpita Cooperative Housing Society, Bandra(West). As per leave
and license agreement dated 20.11.2014 and for furniture, hire
purchase agreement was entered into between the complainant and the
accused. Accordingly, the flat and the furniture was given on the basis
of leave and license and hire purchase agreement. To discharge the
said liability of payment, the accused issued the subject cheque bearing
No.000090 dated 24.10.2017 drawn on HDFC bank, Palakkad branch
for Rs.1,71,349/. The complainant deposited the subject cheque on
30.10.2017 in HDFC Bank, Santacruz(West) branch. Subject cheque is
dishobnoured on the same date for the reason “Funds Insufficient”. The
complainant issued the demand notice to the accused on 03.11.2017.
The demand notice is duly served to the accused on 06.11.2017. The
accused issued false reply and denied the liability. Hence, the
complainant is constrained to file the present complaint.
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3. My Ld. Predecessor pleased to issue process against the
accused for the offence punishable U/sec.138 of the Negotiable
Instruments Act on 14.02.2018. The accused appeared and plea of
accused is recorded at Exh.11. The particulars of the pleas are read over
and explained to him in vernacular to which he pleaded not guilty and
claimed to be tried.
4. The complainant led the evidence. The accused failed to
crossexamine the complainant. Hence, the crossexamination is closed.
The trial is summary in nature. The accused was absent. Hence,
statement of accused u/sec.313 of Cr.P.C. is dispensed with. The
accused also failed to lead the defence evidence. The complainant filed
the memorandum of arguments at Exh.21. The accused filed
Vakalatnama and memorandum of arguments on 10.06.2019.
5. From the above facts, following points arise for my
determination to which I have recorded my findings before them for the
reasons discussed there below.
POINTS FINDINGS
1. Does the complainant prove that the accused
issued the subject cheque bearing No.000090
dated 24.10.2017 for Rs.1,71,349/ drawn on
HDFC bank, Palakkad branch to discharge the
debt or liability and the cheque was dishonored
for the reason ‘Funds Insufficient’ ?
Proved.
2. Does the complainant prove that after service
of the demand notice under Sec.138(b) of the
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Negotiable Instruments Act the accused failed to
make the payment of cheque amount and thereby
committed the offence punishable under sec. 138
of the Negotiable Instruments Act ?
Proved.
3. What order? As per final order.
REASONS
6. To prove the case, the complainant examined himself Vijay
Bailur as P.W.1 at Exh.5. The complainant relied on the certified copy
of the leave and license agreement Exh.12, hire purchase agreement
Exh.13, subject cheque Exh.14, bank memo Exh.15, office copy of the
demand notice Exh.16, postal slip along with acknowledgement card
Exh.17 and 18. He has produced the xerox copy of the reply with list
Exh.6.
As to point Nos.1 and 2.
7. It is the case of the complainant that as per hire purchase
agreement and the leave license agreement, the accused is liable to pay
the amount. To discharge the said liability, the accused issued the sub
ject cheque and it is dishonoured.
8. In the case of 'Rangappa V/s. Mohan 2010 Law Suit
(S.C.) 277', the Hon'ble Apex Court has held that there is initial pre
sumption which favours the complainant that the cheque was issued to
discharge of debt or other liability. It is further held that once the
cheque in question is issued and signature thereon is admitted to be of
the accused, it has to be presumed that the cheque is issued to dis
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charge of debt or other liability. Presumption is rebuttable by the ac
cused by leading probable evidence.
9. I have perused the evidence of Vijay(P.W.1). He has reiter
ated all the contents of the complaint. He has claimed that he is co
owner of the flat No.701, 7th floor, Sankalpita Cooperative Housing So
ciety, Bandra(West). As per leave and license agreement and hire pur
chase agreement dated 20.11.2014 the flat and the furniture in the flat
is given to the accused for 36 months. The accused is liable to pay the
leave and license fees and charges of hire purchase agreement. To dis
charge the said liability, the accused issued the subject cheque. The
subject cheque is at Exh.14. It is dated 24.10.2017. The witness has
presented the subject cheque in the Santacruz(W.) branch on
30.10.2017 and it is dishonoured for the reason “Funds Insufficient”.
The bank memo is at Exh.15. He has issued the demand notice, office
copy of the demand notice Exh.16. It is duly served as per acknowl
edgement card Exh.17. He has produced the reply of the accused along
with list Exh.6. The witness also produced the certified copy of the leave
and license agreement and the hire purchase agreement Exh.12 and 13.
These agreements are collateral to the subject cheque as u/sec.118 of
the Negotiable Instruments Act it is presumed that the subject cheque is
issued for the consideration amount. The accused is liable to rebut the
presumption U/sec.139 of the Negotiable Instruments Act by crossex
amining the witness but he failed to do so. Likewise, the accused also
failed to give the rebuttal evidence and defence. The documentary evi
dence and the oral evidence is consistent to each other.
10. In the reply of the demand notice the accused alleged that
the complainant misused the subject cheque which was given for secu
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rity purpose. It is also claimed that the complainant granted the exten
sion to leave and license agreement. In the memorandum of arguments
the complainant denied this fact and claimed that as per the order of
the Competent Authority he has got the possession of the flat on 8th
June, 2018. He has denied the fact that the cheque is issued for the se
curity purpose.
11. As per reply of the accused, the cheque is issued for secu
rity purpose. He has admitted the issuance of the cheque and the signa
ture on the cheque. Therefore, the accused is liable to rebut the pre
sumption U/sec.139 of the Negotiable Instruments Act. The accused
failed to do so.
12. The case is tried summarily. As per Judgment in Indian
Bank Association V/s. Union of India [Reported in (2014) 5 SCC
590]. After filing the evidence under section 145 of the N.I. Act by the
complainant the accused is required to recall the complainant for cross
examination if he wishes to do so, otherwise the matter is required to be
posted for the defence evidence.
13. In the case of Delhi High Court in Rajesh Agrawal V/s.
State and another decided by Delhi High Court on 28.01.2010 it is
held that, “if there is any application under sec. 145(2) of the N.I. Act., of
recalling, the Court shall decide the same, otherwise, it will proceed to take
the defence evidence on record and allow crossexamination of the defence
witness by the complainant. Thereafter, to hear the arguments of the
parties, decide and to pass the order/Judgment”. Hence, there is no need
to statement under sec. 313 of the Code of Criminal Procedure.
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14. In view of my above findings, the accused failed to rebut
the presumption. The cheque is issued for discharge of the liability of
the leave and license and hire purchase agreement. The complainant is
interested to get his amount back. The liability is quasi civil. Hence, it
is just to impose fine/compensation and interest on the cheque amount
in default the accused is liable to suffer the imprisonment. In the case
of 'Harisingh V/s. Sukhbirsingh 1988 (4) SCC 551', Hon’ble Apex
Court has held that the court may impose order of compensation by
imposing sentence in default. Likewise, in the case of 'R. Vijayan V/s.
Baby & Anr. 2012 ALL MR (Cri.) 1325 (S.C.)', the Hon'ble Apex Court
has held that the court can grant an interest on the cheque amount.
Hence, I answer point Nos.1 and 2 in the affirmative and proceed to
pass the following order
ORDER
1. The accused Mr.VIVEK AGARWAL, Adult, Occu. : Business, Indian
Inhabitant, presently residing at Flat No.701, 7th Floor, Sankalpita
Coop. Housing Society Ltd., 16 th Road, Bandra(West), Mumbai –
400 050 is hereby held guilty under section 255(2) of the Criminal
Procedure Code and convicted for the offence punishable under
section 138 of the Negotiable Instruments Act, 1881.
2. The accused is ordered to pay the compensation/ fine of
Rs.1,71,349/ (Rupees One Lakh Seventy One Thousand Three
Hundred Forty Nine) to the complainant along with interest @ 6%
per annum from the date of cheque to date of Judgment. In default,
the accused to suffer simple imprisonment for period of Two (02)
months, vide section 357(3) of the Code of Criminal Procedure.
3. The accused to surrender his bail bond.
4. The accused is absent, issue NBW against him.
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5. Copy of Judgment shall be given to the accused free of cost.
(Judgment pronounced in the open Court).
(P. V. Bulbule)
Mumbai, Metropolitan Magistrate,
Date : 30/09/2019. 58th Court, Bandra, Mumbai.
kdc
Dictated on : 30/09/2019.
Transcribed on : 30/09/2019.
Signed on : 30/09/2019.
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