Final Order 6

Order Details: Copy of Judgment
Pdf Text: MHMM180015822018 Received on : 22.12.2017
Registered on : 22.12.2017
Decided on : 29.08.2026.
Duration : Y. M. D.
08 - 08 - 07
PART 'A'
(Para 44(i) of Chapter VI of Criminal Manual)
IN THE COURT OF JUDICIAL MAGISTRATE (FIRST CLASS)
58th COURT, BANDRA, MUMBAI
(Presided over by:- B.S. Sankpal)
EXHIBIT No.32
Case No.3287/SS/2017
PROSECUTION/
COMPLAINANT
:- Shri Ajinkya Ashok Ganage
AGE – YEARS OCCU : BUSINESS
43/D, Chapel Road, Bandra West, Mumbai
400050
REPRESENTED BY :- Learned Adv. Mr. P. S. Padwal
ACCUSED :- 1. Pauravi Enterprises
Pauravi Mahatma Phule Soc., Nr. Carmel
School, Badlapur East, Dist – Thane
2. Shri Santosh Rajaram Patel
Godavari Heights, 3rd and 4th Floor, Room
No.304 and 404, Vijaya Bank Bldg, Vadavali
Section, Ambernath, Dist – Thane
REPRESENTED BY :- Learned Adv. Mr. Dattaram Dindikar
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PART 'B'
(Para 44(ii) of Chapter VI of Criminal Manual)
Date of Offence :- 23.11.2017
Date of filing Complaint :- 22.12.2017
Date of Registration of Complaint :- 22.12.2017
Date of Recording Plea :- 24.09.2024
Date of commencement of evidence :- 20.12.2024
Date on which case reserved for Judgment :- 17.08.2026
Date of the Judgment :- 29.08.2026
Date of the Sentencing Order, if any :- 29.08.2026
Accused Details
Rank of
accused
Name of the
accused
Date of
arrest
Date of
release on
bail
Offence
charged
with
Whether
acquitted
or
convicte
d
Sentence
imposed
Period of
Detentio
n
Undergo
ne
during
trial for
purpose
of
Section
428,
Cr.P.C.
1. Pauravi
Enterprises
-- 24.09.2024 Under
Section 138
of the N.I.
Act, 1881
acquitted -- --
2. Shri
Santosh
Rajaram
Patel
-- 24.09.2024 Under
Section 138
of the N.I.
Act, 1881
acquitted -- --
PART 'C'
(Para 44(iii) of Chapter VI of Criminal Manual)
LIST OF PROSECUTION / DEFENCE / COURT WITNESSES
A. Prosecution/Complainant’s Witnesses:-
RANK
(CW)
EXHIBIT NAME NATURE OF
EVIDENCE
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CW-1 Exhibit- 13 Ajinkya Ashok Ganage Complainant.
B. Defence witnesses, if any :
RANK
(DW)
EXHIBIT NAME NATURE OF
EVIDENCE
Nil
C. Court witnesses , if any :
RANK
(CW)
EXHIBIT NAME NATURE OF
EVIDENCE
Nil
LIST OF PROSECUTION / DEFENCE / COURT EXHIBITS
A. Prosecution/Complainant:
Sr. No. Exhibit Number Description
1. Exhibit-15 Cheque issued by Accused dated
28.06.2017
2. Exhibit-15 - A Cheque Bounce Memo 28.09.2019
received on 03.10.2017
3. Exhibit-16 Notice to the Accused and Postal
Receipt
4. Exhibit-17 Exh-
18 & Exh-19
Postal Delivery Memo Showing
delivered on 07.11.2017
B. Defence :
Sr. No. Exhibit Number Description
1 Exhibit - 37 Certified copy of Agreement for sell
dated 21.12.2022
C. Court Exhibits :
Sr. No. Exhibit Number Description
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1. Exhibit - 12 Particulars of the offence and plea of
the accused
2. Exhibit -28 Statement of accused No.2 under
section 313 of the Code of Criminal
Procedure.
D. Material Object:
Sr. No. Exhibit Number Description
Nil
J U D G M E N T
(Delivered on 29th Day of August 2026)
The accused are tried for the offence punishable under
section 138 read with section 141 of Negotiable Instruments Act,
1881 (in short the 'N.I. Act').
The case of the complainant in nutshell is as follows:-
02. The Complainant is proprietor of Ajinkya Shoes Trading
at Bandra (W) Mumbai. Accused No.2 is proprietor of accused No.1
company named and styled as “Pauravi Enterprises”. It is averred in
the complaint that accused No.2 represented the complainant as
partner of Pauravi Enterprises and also introduced Mr. Nitin Tayade
as a partner. Accused No.2 and Nitin Tayade represented themselves
as Builders and developers. They informed the complainant that they
are having two flats admeasuring total area of 958Sq.ft. situated at
Mahatma Jyotiba Phule Co.Hsg.So.Ltd., Village Belavali, Taluka
Ambarnath, Dist- Thane. As per their request the complainant agreed
to purchased both flats for consideration of Rs. 57,30,000/-.
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03. The complainant and accused No.2 entered into
registered agreement of sell of both flats on 14.06.2017. The
complainant obtained loan of Rs.44,60,000/- from Capital First Bank.
The said amount was paid in the account of accused No.2 through
RTGS. After payment of whole consideration amount accused No.2
and Nitin Tayade assured the complainant about the possession of the
flats after some minor repaires. When the complainant again visited
and requested for possession, the accused issued possession letter
and informed him to take possession of the flats after eight days.
Thereafter, on several occasions the complainant approached to the
accused, however, the accused avoided to handover the possession of
flats. When the complainant lastly went to accused No.2 in the month
of June 2017 and demanded possession, the accused neglected and
informed him that the complainant should cancel the deed and he
and Nitin Tayade agreed to repay the whole consideration amount
along with the interest paid to the bank. It is also averment of the
complainant that accused No.2 and Nitin Tayde obtained his
signature on some blank Stamp papers stating stat it is for the
cancellation of transaction.
04. It is further contention of the complainant that when he
demanded the money, accused No.2 issued the first cheque of Vijay
Bank, Ambarnath Branch bearing No.081226 dated 28.06.2017 for
Rs.22,50,000/- (the subject cheque) in favour of the complainant.
When the complainant deposited the said cheque for encashment
with his banker namely Yes Bank Ltd, Bandra Branch, the same was
dishonored and returned with the remark “Payment stopped by
Drawer”. The complainant has specifically mentioned that there was
no sufficient amount in the account of accused at the relevant point
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of time. Accused No.2 willfully and knowingly issued the subject
cheque to avoid the liability of repayment of agreed amount.
05. Thereafter, the complainant issued demand notice to the
accused on 26.10.2017. The said notice was duly received by the
accused on 07.11.2017. However, the accused neither replied to the
said notice nor paid the cheque amount. Hence, this complaint.
06. My Ld. Predecessor has recorded the plea of accused at
Exh.12. The particulars of the offence were read over and explained
to the accused. They pleaded not guilty and claimed to be tried.
07. The statement of accused No.2 under section 313 of the
Code of Criminal Procedure was recorded at Exh.28. The defence
revealed from the cross examination and statement of the accused
that the subject cheque was given by accused No.2 to Nitin Tayade
towards commission. The complainant with the joining hands of Nitin
Tayade missused the subject cheque. Moreover, the accused has not
received any notice.
08. Learned advocate representing the complainant has filed
written notes of arguments at Exh.30 and Ld. Defence advocate has
tendered his notes of arguments at Exh.31. Pondered over those
written notes of arguments.
09. Following points arise for my determination to which I
have recorded my findings with reasons thereto as follows:-
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Sr. No. POINTS FINDINGS
1) Whether the complainant has complied with
the provisions of section 138 (a) and (b) and
section142 (1) (a) and (b) of the N.I. Act ?
Yes.
2) Whether the subject cheque was drawn by the
accused for the discharge of a legally
enforceable debt or other liability ? No.
3) Whether the complainant has established that
the accused dishonoured the subject cheque? Yes.
4) What Order ? Accused are
acquitted.
REASONS
10. In order to prove averments made in the complaint,
complainant has examined himself as CW-01 at Exh.13 and relied
upon documentary evidence described in Part-C of this Judgment.
AS TO POINT No.1:-
11. The subject cheque is dated 28.06.2017. The said cheque
was presented for encashment on 27.09.2017 and returned unpaid by
the drawee bank on 28.09.2017. Therefore, it is clear that, the
subject cheque was presented for encashment to the drawee Bank
within the validity period. Thus, the complainant has duly complied
with the provisions of section 138 (a) of the N. I. Act.
12. The complainant gave statutory notice (Exh. 16) dated
26.10.2017 to the accused. The notice Exh.16 coupled with RPAD
booking receipts at Exh.17 to Exh.19 go to show that, the notice was
dispatched by RPAD on 27.10.2017. As such, the statutory notice was
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given within the prescribed period. The complainant has not filed the
postal track report and acknowledgment. It is significant to note that,
the accused has not disputed the correctness of his address
mentioned in the statutory notice filed at Exh.16. In short, the
statutory notice was dispatched by RPAD on the correct address of
accused. Thus, in view of the general presumption under section 114
of the Indian Evidence Act and special presumption under section 27
of the General Clauses Act, there is deemed service of notice.
13. Here, reference is necessary to the decision of Three
Judges Bench of the Hon'ble Supreme Court in the case of C. C. Alavi
Haji V/s. Palapetty Muhamad (2007) 14 SCC 750. It was a reference
made by Hon'ble Two Judges Bench pertaining to the question of
service of notice in terms of section 138(b) of the N.I. Act. In para 17,
the Hon'ble Supreme Court has observed thus,
“It is also to be borne in mind that the requirement of
giving notice is a clear departure from the rule of
Criminal Law, where there is no stipulation of giving of a
notice before filing a complaint. Any drawer who claims
that he did not receive the notice sent by post, can,
within 15 days of receipt of summons from the Court in
respect of the complaint under section 138 of the Act,
make payment of the cheque amount and submit to the
Court that he had made payment within 15 days of
receipt of summons (by receiving a copy of complaint
with the summons) and, therefore, the complaint is
liable to be rejected. A person who does not pay within
15 days of receipt of the summons from the Court along
with the copy of the complaint under section 138 of the
Act, cannot obviously contend that there was no proper
service of notice as required under section 138, by
ignoring statutory presumption to the contrary under
section 27 of the General Clauses Act and section 114 of
the Indian Evidence Act. In our view, any other
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interpretation of the proviso would defeat the very object
of the legislation. As observed in Bhaskaran's case
(Supra), if the giving of notice in the context of clause
(b) of the proviso was the same as the receipt of notice a
trickster cheque drawer would get the premium to avoid
receiving the notice by adopting different strategies and
escape from legal consequences of section 138 of the
Act”.
14. The above quoted observations make it clear that, the
requirement under section 138(b) of the N.I. Act is giving of notice
and not its receipt. Moreover, in the present case, the accused has not
deposited the amount due under the subject cheques within 15 days
after service of summons of present case. As such, the complainant
has duly complied with the provisions of section 138 (b) of the N. I.
Act by giving notice to the accused in writing.
15. In the complaint it is averred that, the notice is issued to
the accused on 26.10.2017. The said statements have been reiterated
by the complainant on oath in his evidence affidavit. The RPAD
receipts filed at Exh.17 to 19 disclose that the notices were
dispatched on 27/10/2017. Thus, the complaint filed is well within
the prescribed period of limitation. As such, the complainant has duly
complied with the mandatory provisions of sections 138 (a) and (b)
and and section142 (1) (a) and (b) of the N.I. Act. Hence, point No.
1 is answered in the affirmative.
AS TO POINT No.2:-
16. It is the case of complainant that, accused No.2 and Nitin
Tayade represented themselves as Builders and developers. They
informed the complainant that they are having two flats admeasuring
total area of 958Sq.ft. Situated at Mahatma Jyotiba Phule
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Co.Hsg.So.Ltd., Village Belavali, Taluka Ambarnath, Dist- Thane. As
per their request, the complainant agreed to purchased both flats for
consideration of Rs. 57,30,000/-. Accordingly, they entered into the
registered agreement of sell on 14.06.2017. The complainant
obtained loan of Rs.44,60,000/- from Capital First Bank. Thereafter,
on several occasions the complainant approached to the accused for
seeking possession of the flats. However, the accused avoided. In
June 2017, the accused informed the complainant that he should
cancel the deed and agreed to repay the whole consideration amount
along with the interest paid to the bank. The subject is given for
repayment of the said amount.
17. It is the defence of the accused that the agreement was
not cancelled. The complainant had taken the possession of both flats
and infact sold the said property to another person in the year 2022.
He issued the subject cheque to Nitin Tayade towards commission.
The complainant and Nitin Tayade has misused the subject cheque
with the joining hands of Nitin Tayade. The subject cheque was not
issued for legally enforceable liability.
18. Accused No. 2 has not disputed his signature over the
subject cheque. Thus, the presumptions under section 118(a) and
139 of the N.I. Act would come into play. In the case of Rangappa Vs.
Sri Mohan, (2010) 11 SCC 441 , the Hon'ble Supreme Court has held
that, the presumption mandated by section 139 of the Act does
indeed include the existence of a legally enforceable debt or liability.
In the written notes of argument, the learned advocate represented
the complainant also pointed out the same observations of Hon’ble
Supreme Court in the case of T. Vasantha Kumar V/s. Vijayakumari
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(2015) 8 SCC 378. It is observed in the said case that though
presumption is rebuttable, the initial presumption is in favour of the
complainant. He also relied on the case of T. P. Murugan Vs. Bojan,
(2018) 8 SCC 469. In this case, the Hon’ble Apex Court held that
once the accused admitted the cheque and pronote was issued by
him, presumption under section 139 of the Negotiable Instruments
Act came into operation.
19. In case of Basalingappa V.s Mudibasappa, (2019) DGLS
(SC) 532 Hon’ble Supreme Court held that standard of proof for
rebutting presumption is preponderance of probabilities and
inference of preponderance of probabilities can be drawn from
material brought on record by the parties and also by reference to
circumstances upon which they relied, it is not necessary for the
accused to come in the witness box. In the absence of compelling
justifications, reverse onus clauses usually impose an evidentiary
burden and not a persuasive burden. Keeping this in view, it is a
settled position that, when an accused has to rebut the presumption
under section 139, the standard of proof for doing so is that of
preponderance of probabilities. Therefore, if the accused is able to
raise a probable defence which creates doubts about the existence of
a legally enforceable debt or liability, the prosecution can fail. As per
the observations laid down by Hon’ble Supreme Court in case of
Kumar Exports V/s Sharma Carpets (2008) DGLS (Supreme Court)
1666, to disprove the presumptions, the accused should bring on
record such facts and circumstances upon consideration of which, the
Court may either believe that the consideration and debt did not
exists or their non existence was so probable that a prudent man
would under the circumstances of the case, act upon the plea that
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they did not exists.
20. Bearing in mind the aforesaid principles, it is now
necessary to find out as to whether the complainant has discharged
the initial burden of proving the fact that, the subject cheques were
issued in discharge of a liability and whether the accused has
rebutted the statutory presumptions under sections 118(a) and 139
of the N.I. Act.
21. In the present case, in order to discharge the initial
burden, the complainant is relying upon his own evidence wherein he
deposed as per the case put up in the complaint. The complainant
deposed that accused No.2 entered with him in the agreement of sale
of the two flats situated at Mahatma Jyotiba Phule Co.opeative
Society at Badlapur. He agreed to purchase those flats for
consideration of Rs.57,30,000/-. The whole consideration amount
paid to accused No.2. However, for one or more reasons accused
No.2 avoided to give possession of the said flats. Lastly, accused No.2
told the complainant that he should cancel the agreement and took
his signature on the blank stamp paper. In order to repay the said
consideration amount, accused No.2 issued the subject cheque to
him. Therefore, the said cheque was issued for legally enforceable
liability.
22. During the cross-examination, the defence has brought
on record that the complainant opted possession by braking locks on
failure of handing over keys by the accused. One important fact is
also came before the Court in the cross examination of the
complainant that the complainant has entered into an agreement for
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sale of the flats on 21.12.2022 with Mr.Sujit Jaiswal. The said
agreements are at Exh.27 and Exh.28. The complainant candidly
admitted in the cross examination that he has sold both flats in the
year 2022. It has also come in the further cross examination of the
complainant that the first installment of the loan was commenced
from the month of August, 2017.
23. While discharging the initial burden, the complainant
has to prove that the agreement between him and accused No.2 was
cancelled and accused No.2 issued the subject cheque for repayment
of consideration. The admissions given by the complainant in the
cross examination clearly indicates that after issuance of subject
cheque the complainant was in possession of two flats situated at
Badlapur. Interestingly, in the year 2022 he sold both flats to Mr.Sujit
Jaiswal. At one hand, the complainant states that the agreement
dt.14.06.2017 was canceled and on the other hand he admitted that
he obtained the possession by braking locks. Even he started to pay
the installments from the month of August, 2017 in order to repay
the loan obtained from the bank. If as per the contention of the
complainant, the agreement was cancelled, he should have
communicated this fact to the bank. However, the conduct of the
complainant is absolutely against his case. Not only this, in the year
2022 he sold both flats which he claimed in the complaint and
examination-in-chief that the transaction regarding both flats was
canceled in the year 2017 to another person namely Sujit Jaiswal.
Once the agreement was canceled, then how the complainant took
the possession of the flats and how he sold those flats to third person
is remained explained by the complainant. In fact, the complainant
has suppressed from this Court both facts that he had taken the
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possession of the flats and later on sold it to Mr.Sujit Jaiswal.
24. From the cross examination of the complainant it clearly
reveals that the agreement dt.14.06.2017 was acted upon and in
view of that agreement the complainant was in possession of both
flats and later on the complainant sold both flats to third person. The
said admissions given by the complainant totally washed out his own
theory that the agreement executed by accused No.2 in his favour
was cancelled and in order to repay the consideration amount the
subject cheque was issued by accused No.2. Thus, the complainant
has failed to discharge the primary burden. Moreover, the defence
side has successfully rebutted the presumptions available in favour of
the complainant by way of cross examination without entering into
the witness box. Therefore, it is clear that the cheque was not issued
for discharging any debt or other liability. Hence, I answer point No.2
in the negative.
AS TO POINT No.3:-
25. Section 146 of the N.I. Act provides for a presumption to
the effect that, on production of bank's slip or memo having thereon
the official mark denoting that the cheque has been dishonoured, the
Court shall presume the fact of dishonour such cheque, unless and
until such fact is disproved.
26. In the present case, the complainant has produced
cheque return memo at Exh.15A. The said cheque return memo bear
signature of the bank official of the Yes Bank. The reason for
dishonour is “Payment stopped by the Drawer”. Thus, in view of
section 146 of the N.I. Act, a presumption of dishonour would arise in
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favour of the complainant. The accused has not adduced rebuttal
evidence to prove the contrary. Thus, it is duly proved that, the
accused has dishonoured the subject cheque. Hence, point No. 3 is
answered in the affirmative.
AS TO POINT No.4 :-
27. In view of the findings on points Nos. 1 to 3, the accused
are entitled for acquittal. With this, I proceed to pass the following
Order.
ORDER
1. Accused No.1 Pauravi Enterprises and Accused No.2
Santosh Rajaram Patel are acquitted of the offence
punishable under section 138 of the Negotiable
Instruments Act, 1881 vide section 255(1) of the Code of
Criminal Procedure.
2. Bail bonds of the accused stand cancelled.
3. The accused No.2 is hereby directed to furnish P.R. Bond
of Rs.10,000/- (Rupees Ten Thousand Only) and surety
of like amount as per Section 437 (A) of the Code of
Criminal Procedure.
(The Judgment is dictated and pronounced in open Court).
(B. S. Sankpal)
Judicial Magistrate (First Class),
Date: 29.08.2026. 58th Court, Bandra, Mumbai.
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