Final Order 3

Order Details: Copy of Judgment
Pdf Text: Summons Cases SS/72/2018
Judgment Exh.45
MHMM180025682018
Filed on : 22.01.2018.
Decided on : 26.09.2024.
Duration : 06-Y 08-M 04-D.
IN THE COURT OF JUDICIAL MAGISTRATE (FIRST CLASS),
58TH COURT, BANDRA, MUMBAI.
(Presided over by M. P. Saraf)
Summons Cases SS/72/2018
(CNR NO.MHMM180025682018)
Exh.45
WAKIL AHMED s/o. KHALIL AHMED
Age : 54 years, Occ.: Business,
Owner of Alfa Chemical & Leather Co.
R/o. Room No.12, Shaffi Building, Ground
Floor, Dharavi Main Road, Mumbai-400 017.
…. Complainant.
Versus
AKBAR SHAIKH
Owner of M/s. Qamar Enterprises,
Age : 38 years, Occu. Business,
R/o. Room No.A/21-22, Ground Floor,
Kalyanwadi, U.M. Tevar Marg, M. Gandhi
Nagar, Dharavi Koliwada, Mahim(E), Mumbai-
400 017.
…. Accused.
Offence U/sec.138 of the Negotiable Instruments Act, 1881.
Mr. Ranjit Singh & Mr.Shivjeet Singh Advocate for the complainant.
Mr. K. C. Tiwari Advocate for the accused.
JUDGMENT
(Delivered on 26.09.2024)
This is the complaint filed by the complainant under
section 138 of The Negotiable Instrument Act for the reason of
dishonor of cheque alleged to be issued against the repayment of
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friendly loan of Rs. 20 lakhs given to the accused.
2. Complainant’s case in nut shell is as follows:
The accused is the owner of Qamar Enterprises. He was in
need of finance for Rs.20 lakhs to expand his business. Accordingly,
complainant paid him Rs.20 lakhs in parts during year 2015-2016. The
accused had promised to repay entire amount by December 2016. Later
on accused paid Rs.8 lakhs to the complainant. For returning remaining
amount, he gave subject cheque dated 20.10.2017 for Rs.10 lakhs and
promised to pay Rs.2 lakhs within 3 months. On depositing the cheque
with the banker of the complainant situated at Dharavi, Mumbai, the
cheque returned unpaid with remark, ‘Payment Stopped by the Drawer’
on 24.11.2017. The accused called upon to pay the cheque amount by
issuing statutory notice dated 08.12.2017 by registered post. The
accused received the notice but neglected to make payment. 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 accused, the particulars of offence
were stated to him in vernacular to which the accused pleaded not
guilty vide Plea Exh.20 and claimed to be tried. The case was tried as
summons trial.
4. The accused was given opportunity to exercise his right of
giving explanation to the incriminating substance found in the evidence
of the complainant against him but he failed by remaining absent.
Thereafter, statement of accused under section 313 of Code of Criminal
Procedure could not be recorded as accused remained absent.
Therefore, the same was dispensed with vide order dated 06.05.2024
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below Exh.42.
5. Heard, the accused in person. Heard advocate Mr. Ranjit
Singh for the complainant. Perused written notice of arguments filed
by the complainant at Exh.43 on 03.06.2024. The accused his advocate
failed to advance arguments. The application moved on the day of
Judgment to adjourn the matter by advocate K.C. Tiwari at Exh.44
rejected with speaking order.
6. To substantiate the contention, complainant has examined
himself at Exh.5, as PW-01. Besides oral evidence complainant has
relied upon cheque No.523395 at Exh.23, cheque return memo at
Exh.24, deposit slip at Exh.25, office copy of the demand notice at
Exh.26, Postal receipt at Exh.27, Postal Track Consignment report at
Exh.28 and closed evidence.
7. On hearing advocate for complainant 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.523395 of
Rs. 10,00,000/- dated 20.10.2017, drawn
on IndusInd Bank, Bandra(W) branch,
Mumbai in favour of the complainant in
discharge of the legal debt or liability?
: Yes.
2. Whether it is proved that cheque in question
was dishonored for the reason ‘Payment
Stopped by Drawer’?
: Yes.
3. Whether it is proved that the accused has
received demand notice dated 08.12.2017,
issued u/sec.138(b) of the Negotiable
Instruments Act sent by the complainant?
: Yes.
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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 is held
guilty and
convicted as per
final order.
REASONS
AS TO POINT NO.1:-
8. Oral evidence of the complainant depicts that he is running
a leather and chemical business since 20 years. He has helped various
persons by way of finance who are his closed friends and relatives. He
also admitted filing various cases under section 138 of Negotiable
Instrument Act against different persons by him. He has categorically
denied that he is lending money on interest and doing illegal money
lending business. Rest of the evidence states that he had given Rs.20
lakhs to the accused without executing any Agreement in goods faith to
expand the business by the accused. Out of said amount accused had
paid him Rs.8 lakhs on 24.10.2017 and 25.10.2017. The subject cheque
for Rs.10 lakhs was given on 20.10.2017 for part payment of said loan
amount. The same returned unpaid for the reason of ‘Payment Stopped
by the Drawer’. It also further states about issuing statutory notice of
demand under section 138(b) of the Act to the accused etc.
9. The accused has questioned the financial capacity of the
complainant to give such huge amount without any writing and by
denying entire transaction in cross examination. However, complainant
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has produced the certified copy of the bank account statement
summary of the account of his business. It shows withdrawal of Rs.20
lakhs on 27.11.2015 by the complainant. Further if complainant would
not have given said amount, the accused would not have deposited
Rs.8 lakhs in the account of complainant on 24.10.2017 and
25.10.2017. Therefore, the defence of the accused questioning financial
capacity of the complainant appears baseless and without proof. There
is reason to believe from the record and proceeding that complainant is
having sound economic status and financial capacity.
10. The accused has taken defence of material alteration over
the cheque Exh.23 coupled with a bold defence of not issuing said
cheque by the accused to the complainant in the cross examination. On
perusal of cheque Exh.23 there appears no material alteration or
difference of ink or hand writing over the cheque Exh.23. If as per the
case of the accused the cheque was not issued to the complainant,
question crops up how the same came into custody of the complainant
and what evidence is placed on record to accept the contention as
probable and trustworthy. The cheque was dishonored on 24.11.2017.
The reason for dishonor is making stop payment by the accused.
However, neither statutory notice Exh.26 is replied nor any legal action
seems to be taken by the accused against the complainant to believe his
defence. No prudent man would keep mum even after knowing alleged
misuse of his cheque and that too presented for a amount of Rs.10
lakhs. In this context looking into the oral evidence of the complainant
as to depositing Rs.8 lakhs by the accused in the account of
complainant, the evidence of complainant appears more trustworthy
than the defence of the accused. The accused has not came with a case
of issuing subject cheque towards security of the transaction. The
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defence of misplacing the cheque or alleged to be stolen by the
complainant is without evidence. Therefore, the contention of the
accused appears illegal and baseless.
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. Complainant being holder in due course of the cheque
Exh.23, the presumption of law under section 139 would follow in
favour of complainant. Therefore, in absence of any contrary evidence,
there is reason to believe that the cheque was issued by the accused
against and in discharge of legal liability of repayment of Rs.10 lakhs
towards the part payment of loan amount. Hence, I answer the point
No.1 in the affirmative.
AS TO POINT NO.2 :
14. The complainant has produced the cheque return memo at
Exh.24. The accused himself has came with a case of making stop
payment. The cheque return memo also shows reason for dishonour of
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the cheque for the reason of making stop payment by the accused.
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 :
15. Complainant has produced office copy of the demand
notice dated 08.12.2017 at Exh.26 alongwith postal receipt Exh.27,
and Postal Track Consignment Report at Exh.28. The postal Track
consignment report shows that article that is the notice sent by
registered post vide postal receipt Exh.27 dated 08.12.2017 having
consignment No.EM854477736IN was delivered to the addressee on
12.12.2017. Therefore, there is reason to believe the oral evidence of
the complainant that he had posted the notice Exh.26 by registered
post to the accused vide postal receipt Exh.27. 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 :
16. For proving the guilt of the accused u/sec.138 of the
Negotiable Instrument Act, first of all the complainant must prove
existence of legal liability or debt, issuing of cheque in discharge of
legal debt or legally enforceable liability, dishonour of the cheque,
issuing statutory notice etc. Though the accused has taken stand of not
issuing subject cheque to the complainant, his defence is without
evidence. The signature of the accused on his plea Exh.20 is identical
and similar to the signature on cheque Exh.23. Therefore, it is proved
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conclusively that subject cheque is issued by the accused against and in
discharge of legal liability of making repayment of friendly loan. The
accused would not have issued subject cheque if he was not liable to
make repayment of amount of friendly loan given by the complainant.
There is no evidence in rebuttal by the side of the accused.
17. The complainant has proved the existence of legal liability
on the date of cheque. The cheque was dishonored for the reason
‘Payment Stopped by the Drawer’. 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 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.
18. 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.
19. Complainant and advocate were present in morning
session. Complainant and his advocate absent in second session.
Accused and his advocate also absent.
20. 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
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instruments. All the contentions of the accused are without evidence.
The accused is liable to make payment of Rs.10 lakhs as claimed
against disputed cheque to the complainant towards friendly loan. The
amount is utilized by the accused for more than six years. The accused
has deliberately protracted the litigation since year 2018. The same has
compelled this court to deliver Judgment in absence of accused for
doing justice and follow the mandate of law to conclude the hearing of
the case within six months. Showing leniency will pass a wrong
message in the society. It will encourage the defrauders to use the
negotiable instruments as a protracting tool. However, the relationship
between complainant and accused as a friends will have to be taken
into consideration while awarding punishment. It may be possible that
due to lack of funds accused might not appearing for the proceeding.
Therefore, it would not be just and proper to award maximum
punishment according to law. Hence, I pass following order.
ORDER
1. Accused Akbar Shaikh, Age : 38 years, R/o. Room No.A/21-22,
Ground Floor, Kalyanwadi, U.M. Tevar Marg, M. Gandhi Nagar,
Dharavi Koliwada, Mahim(E), Mumbai-400 017, is hereby
convicted vide section 255(2) r/w. section 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 03 (Three)
months and to pay fine of Rs.10,00,000/- (Rupees Ten Lakhs
only), in default of payment of fine shall suffer further simple
imprisonment for further 6 (Six) months.
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2. If fine is paid by the accused, the complainant shall be given
compensation of Rs.10,00,000/- (Rupees Ten Lakhs only), out
of the same u/sec.357(1)(b) of Code of Criminal Procedure.
3. The bail bonds of accused stands cancelled.
4. Issue warrant for arrest u/sec.418(2) of Code of Criminal
Procedure against the accused for the purpose of forwarding the
accused 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 : 26.09.2024 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 : 26.09.2024.
Transcribed and Typed on : 26.09.2024.
Judgment printed and Signed on : 26.09.2024.
Judgment Uploaded on : 26.09.2024.
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