Final Order 2

Order Details: Copy of Judgment
Pdf Text: Summons Cases SS/318/2018
Judgment Exh.23
MHMM180019702018
Filed on : 23.02.2018.
Decided on : 19.11.2024.
Duration : 06-Y 08-M 27-D.
IN THE COURT OF JUDICIAL MAGISTRATE (FIRST CLASS),
58TH COURT, BANDRA, MUMBAI.
(Presided over by M. P. Saraf)
Summons Cases SS/318/2018
(CNR NO.MHMM180019702018)
Exh.23
MAMTA RAJA
Age : 53 years, R/o. 102, Hill n Sea, 72 Pali Hill,
Bandra(W), Mumbai- 400 050. …. Complainant.
Versus
GOPAL RATHI
Age : 86 years, R/o. Red Stone House, Plot
No.22, Gulmohar Road No.5, J.V.P.D. Scheme,
Bombay- 400 054.
…. Accused.
Offence U/sec.138 of the Negotiable Instruments Act, 1881.
Mr. Ravish Zamindar Advocate for the complainant.
Mr. Niraj Mishra Advocate for the accused.
JUDGMENT
(Delivered on 19.11.2024)
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 services such as assistance in managerial,
clerical work with respect to pending litigation rendered to the accused
by the complainant.
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2. Complainant’s case in nut shell is as follows:
She met the accused through a common acquaintance of
Mr. Sharad Rathi. The accused orally represented her his desire to
engage her services for assistance in certain managerial, clerical, and
general work with respect to pending litigation of the accused in Debt
Recovery Tribunal Mumbai. The accused promised to pay remuneration
of Rs.3 lakhs in exchange of said services vide three cheques of Rs.1
lakh each. Accordingly, she provided assistance to the accused with
respect to said pending litigation during the period from 12.08.2017 to
30.10.2017. Accused issued subject cheque dated 25.12.2017 in
furtherance of said oral agreement. On depositing said cheque with the
banker Union Bank India, Dr. Ambedkar Road branch, Bandra(W), the
same returned unpaid for the reason ‘Insufficient Funds’ to the
complainant on 05.01.2018. Complainant sent statutory notice to the
accused on 08.01.2018 by registered post. The same was delivered to
the accused on 09.10.2018. But the accused failed to pay the cheque
amount on or before 23.01.2018. Hence, this complaint.
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.11 and claimed to be tried. The case was tried as
summons trial.
4. The statement of accused to be recorded under section 313
of Code of Criminal Procedure was dispensed with vide order dated
10.10.2024. The evidence of accused was also closed on same day.
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5. Heard advocate Mr. Ravish Zamindar for the complainant.
The accused and his advocate Mr. Niraj Mishra failed to make
submissions.
6. Following points arise for my determination to which I
have recorded my findings with reasons thereto as follows-
Sr.No. POINTS FINDINGS
1. Whether it is proved that the accused has
issued subject cheque bearing No.000193
of Rs.1,00,000/- dated 25.12.2017 drawn
on H.D.F.C., J.V.P.D. Scheme Branch,
Mumbai in favour of the complainant in
discharge of the legal debt or liability?
: Yes.
2. Whether it is proved that cheque was
dishonored for the reason ‘Insufficient
Funds’ in the account of accused? : Yes.
3. Whether it is proved that the accused has
received statutory demand notice under
Section 138(b) of the Negotiable
Instruments Act? : 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 held guilty
and convicted.
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REASONS
7. To substantiate the contention raised in the complaint,
complainant has examined himself at Exh.5 as PW-01. Besides oral
evidence complainant has relied upon cheque bearing No.000193 dated
25.12.2017 of Rs.1 lakh at Exh.13, cheque return memo at Exh.14,
office copy of demand notice dated 08.01.2018 at Exh.15, Postal
receipt at Exh.16, copy of Indian Postal Track Consignment Report at
Exh.17 Acknowledgment Card at Exh.16 and closed evidence.
AS TO POINT NO.1:-
8. The evidence of complainant unfolds that she was engaged
by the accused being senior citizen to assist him for the work related to
the pending litigation in the court of Debt Recovery Tribunal. By virtue
of an oral agreement, complainant accepted the request of the accused.
Accused agreed to pay Rs.3 lakhs towards remuneration against the
charges, services to be rendered by the complainant. Accordingly,
complainant rendered services as to giving assistance, doing clerical
work related to the litigation of accused pending before DRT. Her
evidence further discloses that accused issued subject cheque for the
services charges to the complainant. The same returned unpaid for the
reason ‘Funds Insufficient’ in the account of accused. Accused failed to
pay the cheque amount despite making demand by issuing statutory
notice. The same compelled her to filed present complaint.
9. The evidence of complainant has gone unchallenged by the
side of accused. Her oral evidence corresponds to the documentary
evidence of issuing cheque Exh.13 by the accused. She had also placed
on record a letter sent to accused by registered post claiming demand
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of cheque amount. The notice cum letter Exh.15 sent by the
complainant to the accused is delivered to the accused on 10.01.2018.
Accused has not replied the statutory notice nor taken any defence to
that effect. The letter Exh.15 satisfies all the necessary ingredients
required under section 138(b) for considering the valid demand.
10. Complainant is holder in due course of the subject cheque
Exh.13. Accused has not denied issuance of cheque Exh.13 to the
complainant. Accused has also not denied the transaction of rendering
services by the complainant.
11. 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.”
12. Section 118(a) of the Negotiable Instrument Act also
draws a presumption in favour of holder of the Negotiable Instrument.
It states that,
“Until the contrary is proved, that every negotiable
instrument was made or drawn for consideration, and that every such
instrument, when it has been accepted, indorsed, negotiated or
transferred, was accepted, indorsed, negotiated or transferred for
consideration.”
13. Needless to state that the presumption under section 139
and 118(a) of the Act are rebuttal presumption. Said presumption can
be rebutted by the accused by obtaining admissions in cross
examination of the complainant or producing oral or documentary
evidence or by examining himself or by creating doubt on the
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trustworthiness of the case of the complainant. It is also settled law
that for the said rebuttal of presumption accused need not want to
examine himself or witnesses.
14. In the case in hand, as stated above the evidence of
complainant on the point of alleged transaction appears trustworthy.
Secondly, the accused has not challenged the oral and documentary
evidence of complainant. Accused has not came with a case of
maintaining sufficient balance in his bank account on the day of cheque
or even at the time of presenting said cheque. There is no evidence
either in defence or in rebuttal of presumption of law under section 139
of the Act. It is evident that cheque was issued by the accused against
and in discharge of legal liability to repay the amount given by the
complainant. The legal liability against the accused is duly proved.
Hence, I answer point No.1 in the affirmative.
AS TO POINT NO.2 :
15. The complainant has produced the cheque return memo at
Exh.14. The cheque return memo also shows that the cheque returned
unpaid for the reason, ‘Funds Insufficient’ in the account of the
accused. The accused has not came with a defence of having sufficient
balance on the date of cheque in his account. Further, the reason of
dishonour of cheque is not disputed. 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 :
16. Complainant has produced office copy of the demand
notice cum letter dated 08.01.2018 at Exh.15 alongwith postal receipt
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Exh.16. The complainant has also produced Postal Track Consignment
Report at Exh.17. The postal Track consignment report shows that
article that is the notice sent by registered post vide postal receipt
Exh.16 dated 08.01.2018 having consignment No.EM002762835IN was
delivered to the addressee on 10.01.2018. Therefore, there is reason to
believe the oral evidence of the complainant that she had posted the
notice cum letter Exh.15 by registered post to the accused vide postal
receipt Exh.16. The accused has 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. Hence, I answer point No.3 in the
affirmative.
AS TO POINT NOS.4 AND 5 :
17. 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 etc.
Complainant has proved that accused had issued the cheque against the
legal liability of paying the charges against the services rendered to the
accused. The same was dishonored on presentation with her banker.
Despite issuing statutory demand notice, accused neglected to make the
payment. The same gave cause of action to file present complaint.
18. The complainant has proved the existence of legal liability
on the date of cheque by her oral evidence corroborated by the cheque.
The cheque was dishonored for the reason ‘Funds Insufficient’ in the
account of the accused. The demand by statutory notice and filing
complaint within statutory period is also proved. Therefore, it is crystal
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clear that accused has committed an offence punishable under section
138 of Negotiable Instrument Act by not honoring said cheque and
making payment within stipulated period after receiving demand
notice. The complainant has proved all the five essential ingredients to
attract criminal liability under section 138 of Negotiable Instrument Act
against the accused beyond all reasonable doubts. Hence, I answer
point No.4 in the affirmative.
19. The act of the accused is an offence punishable under
section 138 of The Negotiable Instrument Act. Therefore, the accused is
liable for punishment. The accused is held guilty of the offence
punishable under section 138 of The Negotiable Instrument Act. The
accused is absconding. Therefore, considering the mandate of law
under section 143(3) of the Act, the Judgment will have to be delivered
in absence of accused taking recourse to section 353(6) of the Code of
Criminal Procedure.
20. Heard advocate for complainant on the point of sentence.
She prayed for awarding maximum punishment by law.
21. 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. In the case of
M/s. New Win Export and another Vs. A.
Subramaniam, Hon’ble Supreme Court has observed that, “
the purpose
of making cheque bounce an offence was to ensure reliability of
cheques, and compensatory aspect of remedy under the Negotiable
Instrument Act, 1881 has priority over the punitive aspect in such
cases.”
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22. The cheque is issued against the payment of the services
such as assistance in managerial, clerical work with respect to pending
litigation rendered to the accused by the complainant. The services was
rendered looking into age of the accused with respect to pending
litigation before the Hon’ble Debt Recovery Tribunal against him.
Therefore, considering the nature of oral agreement in between parties,
age, financial status of the accused, it would not be just and proper to
pass order of maximum substantive sentence as envisaged under
section 138 of the Act. Instead of awarding maximum substantive
punishment to the accused, it will be just and proper to award
compensation to the complainant against the amount of the cheque out
of fine. Hence, I pass following order.
ORDER
1. Accused Gopal Rathi, age : 86 years, R/o. J.V.P.D. Scheme,
Mumbai- 400 054, is 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
he is sentenced to undergo simple imprisonment for 01 (One)
month and to pay fine of Rs.2,00,000/- (Rupees Two Lakhs
only) in default of payment of fine shall suffer further simple
imprisonment for 15 (fifteen)days.
2. If fine is paid, the complainant shall be given compensation of
Rs.2,00,000/- (Rupees Two Lakhs only), out of the same
u/sec.357(1)(b) of Code of Criminal Procedure.
3. The bail bond of accused stands cancelled.
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4. Issue warrant for arrest u/sec.418(2) of Code of Criminal
Procedure against the accused for the purpose of forwarding
him to the jail.
5. The copy of Judgment be supplied to the accused 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 : 19.11.2024 58th Court, Bandra, Mumbai.
J.O.Code: MH01362
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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 : 19.11.2024.
Transcribed and Typed on : 19.11.2024.
Judgment printed and Signed on : 19.11.2024.
Judgment Uploaded on : 19.11.2024.
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