Final Order 3

Order Details: Copy of Judgment
Pdf Text: Summons Cases SS/3308/2017
Judgment Exh.26
MHMM180021292018
Filed on : 28.12.2017.
Decided on : 15.10.2024.
Duration : 06-Y 09-M 17-D.
IN THE COURT OF JUDICIAL MAGISTRATE (FIRST CLASS),
58TH COURT, BANDRA, MUMBAI.
(Presided over by M. P. Saraf)
Summons Cases SS/3308/2017
(CNR NO.MHMM180021292018)
Exh.26
Mr. Jaswant Singh Riyat
Age : Adult, R/o. At Jankalyan B-Wing, Building
No.2, Flat No.510, Shantinagar Dongri,
Dahisar(E), Mumbai-400068.
…. Complainant.
Versus
Mr. Deepak Chandrkant More
Age : 53 years, Occ. Service,
R/o. Sai Sadam Chawl, Room No.4, Jai
Maharashtra Nagar, Near Sai Baba Mandir,
Borivali(E), Mumbai-400 068.
…. Accused.
Offence U/sec.138 of the Negotiable Instruments Act, 1881.
Mr. J. P. Jayswal. Advocate for the complainant.
Mrs. Varsha Mahajan. Advocate for the accused.
JUDGMENT
(Delivered on 15.10.2024)
This is the complaint filed under section 138 of The
Negotiable Instrument Act for the reason of dishonor of cheques
alleged to be issued against repayment of consideration amount paid to
the accused for purchasing flat in MHADA.
2. Complainant’s case in nut shell is as follows:
That complainant was in search ownership basis house.
The accused shown him some documents of flat Allotment letter issued
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by the MHADA. After meeting accused offered the complainant to sell
said flat for consideration amount of Rs.24 lakhs. In that context
accused was given part payment of Rs.6 lakhs by the complainant.
Accused assured to hand over the possession after full payment by the
complainant. Thereafter, complainant enquired with the documents
given by the accused and found that said documents are forged and
bogus documents. Therefore, he approached to the accused for
returning back the amount paid to him. Accordingly, accused has issued
subject two cheques dated 25.10.2017 for total amount of
Rs.3,13,000/- drawn on Mahanagar Co-operative Bank Ltd. Borivali
(E), Mumbai. On presentation of said cheques with the banker of the
complainant that is Karnataka Bank Ltd. Santacruz (W), Mumbai, the
same returned unpaid for ‘insufficient funds’ in the account of accused
on 30.10.2017. Accused was issued statutory demand notice dated
18.11.2017 which was received by him on 21.11.2017. Despite of
service of notice accused neglected to make payment of the
dishonoured cheques. 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.7 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 came to be dispensed with vide order dated
27.06.2024 considering long standing absence.
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5. Heard, Advocate Mr.J. P. Jaiswal for the complainant.
Perused notes of argument filed by complainant. Advocate Mrs.Versha
Mahajan and accused were absent when called out.
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 cheques bearing
No.100027 of Rs.3,00,000/- and cheque
No.100068 of Rs.13,000/- dated
25.10.2017 drawn on Mahanagar Co-
operative Bank Ltd., Borivali (E) Mumbai
in favour of the complainant in discharge
of the legal debt or liability to repay the
amount of part consideration against sell
of flat in MHADA building?
: Yes.
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 has
received statutory demand notice dated
18.11.2017 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 cheques 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. Besides oral evidence
complainant has relied upon disputed cheques at Exh.9 and 11,
respective cheque return memos at Exh.10 and 12, office copy of
demand notice dated 18.11.2017 at Exh.14, Postal receipt at Exh.15,
Track consignment report Exh.16 and closed evidence.
AS TO POINT NO.1:-
8. The evidence of complainant unfolds that he was residing
with family on leave and licence basis. He was searching ownership
basis house. Accused shown him some documents pertaining to flat in
MHADA Building. He shown him a allotment letter issued by MHADA.
Thereafter, accused arranged meeting with owner of said flat. Accused
offered him to sell said flat for Rs.24 lakhs. Accordingly, he gave Rs.6
lakhs in cash collecting from some relatives and friends to the accused.
Later on, he came to know that said documents are false and bogus.
Therefore, he approached to the accused for returning the part
consideration amount of Rs.6 lakhs paid by him. Accused gave him
subject two cheques for returning said amount which were dishonoured
and returned unpaid. Despite issuing statutory notice accused neglected
to make the payment.
9. His evidence in cross examination shows that he was
knowing the accused since year 2017. Accused had shown the flat to
him in the year 2019. There is no written contract between them about
the transaction.
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10. From the cross examination, it appears that accused has
taken defence of total denial of transaction, receiving said amount of
part consideration. In this context, if complainant’s oral evidence is
taken into consideration, it appears trustworthy. There may not be a
written contract in between parties but that would not be sufficient
ground to disbelieve the version of the complainant considering the
cheques of the account of accused in the custody of the complainant.
Accused has not taken defence of not issuing subject cheques.
Therefore, mere denial of transaction will not take place of proof to
doubt the testimony of the complainant.
11. Complainant is holder in due course of the subject cheques
Exh.9 and 11. The cheques are drawn from the account of accused with
his signature which is identical and similar to the signature of the
accused on the plea Exh.7. If there would not be any transaction as
stated by the complainant, the accused would not have issued the
cheques to the complainant. There is no defence on the part of accused
as to issuing blank cheques or against security of transaction.
Therefore, there is reason to believe the testimony of the complainant
on the point of making payment of Rs.6 lakhs towards part
consideration against purchase of said flat came to be allotted in
building of MHADA.
12. 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.”
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13. 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.”
14. 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
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.
15. 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 obtained any fatal admission in the cross
examination of the complainant which would raise doubt on the case of
the complainant. He has not examined himself to rebut the
presumption of law. In short, accused has miserably failed to rebut the
presumption of the law under section 139 of the Act, cast upon him as
per legal theory of reverse burden of proof. It is evident that both
cheques were issued by the accused against and in discharge of legal
liability to repay the amount of part consideration given by the
complainant. The legal liability against the accused is duly proved.
Hence, I answer point No.1 in the affirmative.
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AS TO POINT NO.2 :
16. The complainant has produced the cheque return memos
at Exh.10 & 12. The cheque return memos also shows reason for
dishonour of the cheques 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 cheques in his account. Further,
the reason of dishonour of cheques 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 :
17. Complainant has produced office copy of the demand
notice dated 18.11.2017 at Exh.14 alongwith postal receipt Exh.15.
The complainant has also produced Postal Track Consignment Report at
Exh.16. The postal Track consignment report shows that article that is
the notice sent by registered post vide postal receipt Exh.19 dated
18.11.2017 having consignment No.RM095263680IN was delivered to
the addressee on 21.11.2017. Therefore, there is reason to believe the
oral evidence of the complainant that he had posted the notice Exh.14
by registered post to the accused vide postal receipt Exh.15. 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 :
18. For proving the guilt of the accused u/sec.138 of the
Negotiable Instrument Act, first of all the complainant must prove
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issuing of cheques in discharge of legal debt or legally enforceable
liability, dishonour of the cheques, issuing statutory notice etc.
Complainant has proved that accused had issued the cheques against
the legal liability of repayment. The same were dishonored on
presentation with his banker. Despite issuing statutory demand notice,
accused neglected to make the payment.
19. The complainant has proved the existence of legal liability
on the date of cheques. The cheques were 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 clear that accused has 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 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.
20. 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.
21. Heard complainant on the point of sentence. He prayed for
awarding maximum punishment by law.
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22. 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. The accused has accepted the payment of part
consideration for the flat owned by another party and thereby cheated
the complainant. The cheques are issued against repayment of said
amount. The amount is utilized by the accused for more than six 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. Hence, I pass
following order.
ORDER
1. Accused Deepak Chandrkant More, Age : 53 years, Occ. Service,
R/o.Borivali(E), Mumbai-400 068, 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) year and to pay fine of
Rs.6,26,000/- (Rupees Six Lakhs Twenty Six Thousand only).
2. If fine is paid, the complainant shall be given compensation of
Rs.6,26,000/- (Rupees Six Lakhs Twenty Six Thousand only),
out of the same u/sec.357(1)(b) of Code of Criminal Procedure.
3. The bail bond of accused stands cancelled.
5. 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.
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6. 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 : 15.10.2024 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 : 15.10.2024.
Transcribed and Typed on : 15.10.2024.
Judgment printed and Signed on : 15.10.2024.
Judgment Uploaded on : 15.10.2024.
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