Final Order 5

Order Details: Copy of Judgment
Pdf Text: Summons Cases SS/5800454/2020
Judgment Exh.174
MHMM180010572020
Filed on :25.02.2020
Registered on :03.03.2020
Decided on :11.03.2025
Duration :04-Y 11-M 14-D
IN THE COURT OF JUDICIAL MAGISTRATE (FIRST CLASS),
58TH COURT, BANDRA, MUMBAI.
(Presided over by M. P. Saraf)
Summons Cases SS/5800454/2020
(CNR NO.MHMM180010572020)
Exh.174
Mr. AJAY K. SHARMA,
(Partner of M/s.Comfort Caterers)
Age : 53 years, Occ. Business,
having his office address at 116, Bilwada Road,
Kherwadi, Bandra(E), Mumbai-51.
…. Complainant.
Versus
1)M/S. AGASTYA GROUP INC
2)Sameer Ramesh Rajgor (Partner)
Age : 32 years, Occ. Business,
3)Usha R. Rajgor (Partner)
Age : 57 years, Occ. Business,
4)Ekta R. Ajugia (Partner)
Age : 30 years, Occ. Business,
All having office at Flat No.301, Glorious Arc.
Apartment 3rd Cross Road, Behind Models Co-op.
Bank I. C. Colony, Borivali(W), Mumbai-400 103.
And R/o. At C/209, Samruddhi Apartment, Opp.
Orchid International School, Near Garden Court,
Marve Road, Malad(W), Mumbai-400 064.
…. Accused.
Offence U/sec.138 of the Negotiable Instruments Act, 1881.
Mr. Nilesh B. Ambede Advocate for the complainant.
Mr. Hrishikesh Bhattacharya Advocate for the accused.
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JUDGMENT
(Delivered on 11.03.2025)
Accused are facing this trial for the offence punishable
under section 138 of the Negotiable Instrument Act for the reason of
dishonour of the cheque alleged to be given against the legal liability of
charges of various food items supplied to the accused.
2. Complainant’s case is as follows:
That the complainant is partner of M/s.Comfort Caterers
doing business of supplying Breakfast, Snacks, Lunch etc. Accused
Nos.2 to 4 are partners of accused No.1. The accused were making film
‘Panga’ at said studio. They were in need of supplying breakfast, lunch
and dinner to their staff. Accused No.2 approached the complainant for
placing an order of supplying food. Accordingly, complainant supplied
food material worth Rs.58,81,708/- including transport charges etc. to
the accused during 14.06.2019 till 16.09.2019. On repeated demand
accused No.2 to 4 made payment of Rs.5 lakhs and assured to make
remaining payment within one week. Thereafter, accused No.1 issued
subject three cheques dated 03.10.2019, 15.10.2019 and 26.11.2019 in
favour of the complainant. On depositing said cheques for realization
all three cheques were returned unpaid for the reason ‘Funds
Insufficient’ vide cheque return memo’s dated 20.12.2019. Out of total
balance amount of Rs.52,78,000/-, on 13.01.2020 accused transferred
Rs.2,50,000/- in the complainant’s account. However, thereafter, failed
to make payment of remaining amount. Accordingly, they were issued
demand notice dated 13.01.2020. The accused had received the
statutory notice on 18.01.2020. In failure of compliance of statutory
notice, complainant was constrained to file present complaint.
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3. My Ld. Predecessor taken cognizance of the complaint and
issued process against the accused under section 138 of Negotiable
Instruments Act. On appearance of the accused, particulars of offence
were stated to him in vernacular to which the accused pleaded not
guilty vide Plea Exh.23 and claimed to be tried. The case was tried as
summons trial.
4. The statements of accused Nos.2 to 4 under section 313 of
Code of Criminal Procedure were recorded at Exh.143, Exh.144 and
Exh.145. The accused have denied supplying food material worth
Rs.58,81,708/-. They have also denied any legal liability to pay said
amount by them.
5. Heard, Advocate Mr. Nilesh B. Ambede for the
complainant and advocate Mr. Hrishikesh Bhattacharya for the
accused. Perused notes of arguments and citations filed by both
parties.
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 have drawn disputed
cheques bearing Nos.1) 000993 of
Rs.10,95,000/- dated 03.10.2019, 2)
000994 of Rs.15,00,000/- dated 15.10.2019
and 3) 000998 of Rs.26,83,000/- dated
26.11.2019 drawn on The ICICI Bank,
Vileparle(W) branch, Mumbai, in favour of
the complainant in discharge of the legally
enforceable liability or other debt?
: Yes.
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2. Whether it is proved that cheques were
dishonored for the reason ‘Funds
Insufficient’ in the account of accused? : Yes.
3. Whether it is proved that the accused have
received demand notice dated 13.01.2020,
issued u/sec.138(b) of the Negotiable
Instruments Act sent by the complainant
making demand of payment of said cheques
amount in writing within one month of
receipt of information from the bank
regarding dishonour of cheques?
: Yes.
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?
: Yes.
5. What order? : Accused are held
guilty and
convicted.
REASONS
7. To substantiate the averments made in the complaint,
complainant has examined himself at Exh.28 as PW-01. Besides oral
evidence complainant has relied upon Authority letter dated
10.01.2020 at Exh.31, Carbon copies of Food Bills at Exh.32 to
Exh.117, subject three cheques bearing Nos.000993, 000994 and
000998 at Exh.118, Exh.119 and Exh.120, three cheque return memo’s
at Exh.121, Exh.122 and Exh.123, office copy of demand notice dated
13.01.2020 at Exh.124, postal receipts at Exh.125 to Exh.132, Postal
Track consignment Reports at Exh.133 to Exh.136, certificate under
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section 65(b) of the Indian Evidence Act, the registered post envelops,
at Exh.138 to 141, GST payment receipts at Exh.167 to 172 and closed
evidence.
8. The accused have examined accused No.2 Sameer Rajgor
as DW-01 at Exh.155. Besides oral evidence has produced several
invoices issued by complainant at Exh.157 to 161, Photo copy of Ledger
extract of the account of Complainant Firm at Exh.166, copy of account
statement at Exh.162, 163 and 164.
AS TO POINT NO.1:-
9. To substantiate averments of alleged food supply
transaction and outstanding amount of Rs.58,81,708/-, complainant
himself has deposed as per the averments made in the complaint. His
evidence on the point of alleged transaction as narrated by him is duly
proved during his cross examination considering the line of cross
examination and various suggestions given to the complainant on said
point of transaction. The entire cross examination nowhere indicates
denial of supply of food by the complainant. It indicates that
complainant was given order for catering by accused No.2. He
delivered food at ‘Chitrarath’ studio. The bills bears signature of
accused No.2.
10. On the point of outstanding amount towards said food
supply, it indicates that the amount of Rs.58,81,708/- was including
transport charges. The same includes supply of food by tempo at
destination as per the order of accused No.1 and 2. His evidence
further discloses that accused No.3 is mother of accused No.2.
However, accused No.3 and 4 never placed the order or never present
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at the site where the production of film was carried out. No doubt
complainant has admitted receiving Rs.6 lakhs from the accused but he
has denied further suggestion of receiving Rs.10 lakhs. In nut shell the
oral evidence of the complainant narrates about the transaction and
outstanding amount of Rs.58,81,708/-. From the suggestions given in
his cross examination on behalf of the accused shows that accused No.2
has indirectly admitted the transaction and outstanding amount.
However, he has tried to relieve the accused No.3 and 4 out of said
transaction and legal liability.
11. It is the case of the accused that he has paid entire
outstanding amount towards the supply of food. The evidence of
accused No.2 shows that the cheque of Rs.10,95,000/- was issued to
the complainant in the first week of October 2019. The same was
dishonoured. Therefore, he again gave second cheque for
Rs.14,00,000/- to the complainant in the month of October, 2019. The
same was also dishonored. Therefore, he issued the third cheque of
Rs.26,83,000/-. He had not taken earlier two cheques from the
complainant and complainant misused the same. Complainant has
agreed to settle the dispute against Rs.36 lakhs. In short, according to
him only Rs.26 lakhs is outstanding towards him.
12. His evidence in cross examination falsified his contention
of settlement for Rs.36 lakhs. It indicates that accused No.2 has made
breach of consent term Exh.25 and had not issued remaining three
cheques. It clearly shows that complainant had agreed to settle the
dispute on condition to make payment of Rs.36 lakhs within three
months by the accused. All this cheques were dishonored.
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13. Considering the case of accused that he has paid entire
outstanding amount, the same appears without proof and evidence. His
own oral evidence shows that he had committed breach of consent
terms. He has neither paid the outstanding amount towards him and
accused No.1 nor honoured the cheques. There is reason to believe the
subsisting liability on the part of accused No.1 to 4.
14. In comparison to untrustworthy oral evidence of accused
No.2 DW-1, oral evidence of complainant appears more trustworthy to
believe his contention. So also the oral evidence of the complainant is
supported by the documentary evidence of Bills produced by the
complainant at Exh.32 to 117. Oral evidence of DW-01 nowhere states
that it was duty of the complainant to provide the food at the
destination at his cost without charging transporting charges.
Therefore, in absence of denial of Bills and specific defence, the oral
evidence which is corroborated by the documentary evidence of
complainant will prevail. The same will have to be accepted as a truth.
The contention of the accused that he did not take back the cheques
Exh.118 and 119 and issued the third cheque for Rs.26,83,000/- in
place of earlier two cheques also appears unbelievable. His post
conduct of keeping mum without taking any action is absolutely
doubtful if compared to the conduct of a prudent man and a
businessman. The same is indigestible.
15. Complainant is holder of the cheques drawn on account of
accused No.1. Accused No.2 to 4 had not denied issuance of cheques
Exh.118 to 120 to the complainant. All cheques bears signature of
accused No.3 who is mother of accused No.2. The cheques are issued as
a partner of accused No.1. If there was no concerned of accused No.3
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and 4 with the transaction in question, why would have accused No.3
issued cheques Exh.118 to 120 for accused No.1.
16. Section 139 of Negotiable Instrument Act, 1988 draws a
legal presumption in favour of the holder of the cheque, which states,
“
It shall be presumed, unless the contrary is proved, that the holder of
a cheque received the cheque, of the nature referred to in section 138,
for the discharge, in whole or in part, of any debt or other liability.”
17. In the case of 'Bir Singh V/s.Mukesh Kumar' (2019) 4 SCC
197, Hon'ble Supreme Court held that,
“the presumption u/sec.139 of
the Negotiable Instruments Act is in favour of the complainant. It is the
statutory presumption. The burden of rebuttal is on the accused. If the
ingredients are proved, the Court is bound to draw the presumption in
favour of the complainant”.
18. The ratio laid down by the Hon’ble Apex Court in catena of
Judgments states that once issuance of cheque is proved, the court has
to consider and follow the presumption of law under section 139 of the
Act in favour of complainant unless the same is rebutted by the
accused. Thereby, the burden shifts upon the accused to rebut the
presumption. In the case in hand the initial presumption which favours
the complainant that the cheques were issued in discharge of debt or
other liability is validly discharged by the complainant. The evidence of
accused is untrustworthy to accept his defence of making entire
payment and no subsisting legal liability on the date of cheque as
probable. The accused have failed to rebut said presumption.
Therefore, there is reason to believe issuing subject cheques Exh.118 to
120 by the accused to pay the outstanding amount of food charges
came to be supplied to the accused by the complainant.
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19. The subsisting liability is duly proved against the accused.
Had it been not so, the accused would not have issued the cheques and
kept mum even after receiving the statutory demand notice. Accused
have not replied the statutory notice which is also sufficient to draw an
adverse inference against them. Nothing could be brought on record
during cross examination of PW-01 making complainant’s case doubtful
to believe the stand of part payment. It is the not the case of the
accused that the services as stated by the complainant are not at all
rendered or the food was of inferior quality to dispute the invoices.
Hence, I answer the point No.1 in the affirmative.
AS TO POINT NO.2 :
20. The complainant has produced the cheque return memos
at Exh.121 to 123. All the cheque return memos of disputed cheques
shows reason for dishonour of the cheques, ‘Funds Insufficient’ in the
account of accused. The cheque return memos bears seal of the Bharat
Co-operative Bank (Mumbai) Ltd. that is bank of the complainant.
Accused has not adduced any evidence to show that he had sufficient
balance on the date of cheques. On the contrary his evidence states
about dishonour of cheques Exh.118 and 119 and again issuing third
cheque Exh.120. Needless to state that the evidence of accused is not
trustworthy to accept that third cheque Exh.120 for Rs.26,83,000/- was
issued in place of earlier two cheques at Exh.118 and 119. Therefore, in
view of presumption under section 146 of the Negotiable Instrument
Act, I answer the point No.2 in the affirmative.
AS TO POINT NO.3 :
21. Complainant has produced office copy of the demand
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notice dated 13.01.2020 at Exh.124 alongwith postal receipts at
Exh.125 to 132, Postal Track Consignment Reports at Exh.133 to 136.
Accused No.2 has accepted receiving statutory notice. Rest of the
accused No.3 and 4 have not disputed correctness of their addresses
nor led evidence. The envelops containing notice for accused No.3 and
4 placed at Exh.138 and 139 shows Postal Remark ‘Unclaimed’. The
same is sufficient to accept due service of notice upon the accused
No.1, 3 and 4. In absence of any defence and cogent evidence on the
part of accused, there is reason to believe the oral evidence of the
complainant that he had posted the notices by registered post to the
accused persons. The accused have not disputed the correctness of the
address mentioned in the notice. In view of presumption under section
27 of General Clauses Act, there is reason to believe the valid service of
demand notice upon the accused persons. The notice shows legal and
valid demand of the amount of dishonoured cheques from the accused.
Hence, I answer point No.3 in the affirmative.
AS TO POINT NOS.4 AND 5 :
22. For proving the guilt of the accused u/sec.138 of the
Negotiable Instrument Act, first of all the complainant must prove
issuing of cheque in discharge of legal debt or legally enforceable
liability, dishonour of the cheque, issuing statutory notice within 30
days of receiving intimation of dishonour of cheque, filing complaint
within 30 days of accrual of cause of action etc.
23. In the case in hand, the accused has failed to establish his
defence of no legal liability. They have failed to establish that they have
paid all the charges against the food supplied by the complainant. They
have also failed to create doubt or bring such suspicious circumstances
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on record leading to establish his defence as probable and trustworthy.
24. On the contrary the complainant has proved that accused
had issued the cheques against the legal liability. The same were
dishonored on presentation with his banker within the jurisdiction of
court. Despite issuing statutory demand notice, accused neglected to
make the payment which constrained him to file present complaint.
The complaint is also filed within statutory period. Complainant has
proved all the five essential ingredients required to prove an offence
under section 138 of Negotiable Instrument Act beyond all reasonable
doubt by leading cogent evidence.
25. It is crystal clear that accused have committed an offence
punishable under section 138 of Negotiable Instrument Act by not
honoring said cheques and making payment within stipulated period
after receiving demand notice. The accused No.3 and 4 have taken
stand of not knowing anything about the transaction. However, they
are the partners of accused No.1 Partnership Firm to whom the
complainant has provided service of supplying food. Therefore, even
though the cheque is signed only by accused No.3 for an on behalf of
accused No.1, in view of section 141 of the Negotiable Instrument Act
all the accused are equally responsible for the conduct of the business
of accused No.1 Partnership Firm. Therefore, it is safe to say that all the
Partners in common have committed an act of offence under section
138 of the Negotiable Instrument Act. They can not be absolved merely
on the bare words that they are not aware of the transaction. Hence, I
answer point No.4 in the affirmative.
26. The act of the accused Nos.1 to 4 is an offence punishable
under section 138 of The Negotiable Instrument Act. Therefore, the
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accused are liable for punishment. The accused are held guilty of
committing an offence punishable under section 138 of The Negotiable
Instrument Act. Hence, I deem fit to hear the accused on the point of
sentence.
27. Out of three accused only accused No.2 is present. Accused
No.3 and 4 are absent. Heard accused No.2 on the point of sentence.
He prayed for showing leniency and give chance to make payment. His
advocate absent. Heard complainant who submitted that the cheques
given by the accused at every time were dishonoured. He prayed for
passing legitimate orders as per law. Advocate for complainant also
absent.
28. While passing sentence, the court has to see the object of
the Act, effect of the punishment on the entire society. The main object
of the act is to raise faith in the transactions done by way of negotiable
instruments. Accused have utilized the amount for more than five
years. Showing leniency will pass a wrong message in the society. It will
encourage the defrauders to use the negotiable instruments as a
protracting tool. Therefore, it would not be just and proper to show
leniency in awarding punishment to the accused. Accused No.3 and 4
are absent knowing well that matter is kept for Judgment. Hence,
Judgment delivered in their absence taking recourse to section 353(6)
of Code of Criminal Procedure to follow mandate of law under section
143(3) of The Negotiable Instrument Act. Hence, I pass following
order.
ORDER
1. Accused 1)M/S. AGASTYA GROUP INC, 2)Sameer Ramesh
Rajgor (Partner), 3)Usha R. Rajgor (Partner) and 4) Ekta R.
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Ajugia (Partner), having office at Flat No.301, Glorious Arc.
Apartment 3rd Cross Road, Behind Models Co-op. Bank I. C.
Colony, Borivali(W), Mumbai-400 103. And R/o. At C/209,
Samruddhi Apartment, Opp. Orchid International School, Near
Garden Court, Marve Road, Malad(W), Mumbai-400 064, are
held guilty of committing an offence under section 138 of the
Negotiable Instrument Act.
2. Accused Nos.2 to 4 are convicted vide section 255(2)r/w.
353(6) of The Criminal Procedure Code, for the offence
punishable under section 138 of the Negotiable Instrument Act,
1881 and they are sentenced to undergo simple imprisonment
for 01 (One) year and to pay fine of Rs.52,78,000/- (Rupees
Fifty Two Lakhs Seventy Eight Thousand only) in default of
payment of fine to suffer further simple imprisonment of
01(one)year by each accused.
3. If fine is paid, the complainant shall be given compensation of
Rs.52,78,000/- (Rupees Fifty Two Lakhs Seventy Eight
Thousand only), out of the same u/sec.357(1)(b) of Code of
Criminal Procedure.
4. The bail bonds of all accused stands cancelled.
5. The copy of Judgment be supplied to the accused No.2 free of
cost forthwith.
6. Issue warrant for arrest u/sec.418(2) of Code of Criminal
Procedure against the accused Nos.3 and 4 for the purpose of
forwarding them to the jail.
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7. The copy of Judgment be supplied to accused Nos.3 and 4 free
of cost as and when arrested and brought before this Court.
(Judgment is dictated and pronounced in the open Court).
( M. P. Saraf )
Judicial Magistrate(First Class),
Date : 11.03.2025 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 : 11.03.2025.
Transcribed and Typed on : 11.03.2025.
Judgment printed and Signed on : 11.03.2025.
Judgment Uploaded on : 11.03.2025.
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