Final Order 3

Order Details: Copy of Judgment
Pdf Text: Summons Cases SS/378/2018
Judgment Exh.41
MHMM180025882018
Filed on : 06.03.2018.
Decided on : 24.05.2024.
Duration : 06-Y 02-M 18-D.
IN THE COURT OF METROPOLITAN MAGISTRATE,
58TH COURT, BANDRA, MUMBAI.
(Presided over by M. P. Saraf)
C.C. No.378/SS/2018
(CNR NO.MHMM180025882018)
Exh.41
Balbir Rolling Mills Pvt. Ltd.,
(Unit -II) A private Limited Company,
Represented through Authorized signatory
Mr. Saurabh Jain
having its address at 423, Nav Vyapar Bhavan,
P De’mello Road, Carnac Bander, Masjid(E),
Mumbai 400009.
…. Complainant.
Versus
Mr. Dhanpat Hansraj Baid @ Paid
Proprietor of M/s. Image Enterprises,
Age : 44 years, Occ. Business,
having office address at office No.26, 3rd floor,
146 B Chikal House Princess Street, Mumbai
also at M/s.Image Enterprises, 29/32, Surat
Street, Near Surat Sadan, Masjid Bandar East,
Mumbai 400009.
…. Accused.
Offence U/sec.138 of the Negotiable Instruments Act, 1881.
Mr. Ramjit Sharma Advocate for the complainant.
Mr. Ramchandra Pande Advocate for the accused.
JUDGMENT
(Delivered on 24.05.2024)
This is the complaint filed by the authorized representative
of the complainant company under section 138 of The Negotiable
Instrument Act against the accused for the reason of dishonor of
cheques alleged to be issued against the goods supplied by the
complainant.
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2. It is the case of the complainant in nut shell is as follows:
That the complainant company is a Private Limited
Company duly registered under the provisions of Indian Companies
Act. Mr. Saurabh Jain, Manager of the complainant company is its
Authorized Representative. He is authorized by Board Resolution dated
19.02.2018. In said legal capacity he has filed present complaint.
3. That the complainant has supplied the steel goods as per
order placed by the accused to be delivered to the consignee at
Rajasthan. Accordingly, the Tax Invoices for Rs.3,81,152/- and
Rs.3,80,972/- dated 09.10.2017 were raised against the accused who is
Proprietor of Image Enterprises. The goods were delivered to the
consignee. The accused has issued subject two cheques against the
payment of price of said goods to the complainant. Both cheques were
deposited on 09.01.2018 with the banker of the complainant situated
within the jurisdiction of this court. The same were dishonoured and
returned unpaid with remark, ‘Funds Insufficient’ on 11.01.2018.
Accordingly, complainant called upon the accused to make cheque
payment vide demand notice dated 05.02.2018. The same was
received by the accused on 07.02.2018. However, accused neglected to
make payment and comply the notice. Hence, this complaint.
4. 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.11 and claimed to be tried.
5. The statement of accused under section 313 of Code of
Criminal Procedure was recorded at Exh.25. The accused has taken
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defence of giving two blank signed cheques for providing material.
According to him neither material was supplied nor cheques were
returned. In short, the defence of the accused is misuse of the cheques,
not receiving demand notice and no legal liability etc.
6. Heard, Advocate Ramji Sharma for the complainant and
advocate Ramchandra Pande for the accused.
7. To substantiate the contention, complainant has examined
himself at Exh.5. Besides oral evidence complainant has filed the
certified copy of extract of the Board Resolution at Exh.12, Tax
Invoices dated 09.10.2017 at Exh.13 and 14, Consignor copy of Lorry
Receipt at Exh.15, subject cheques at Exh.16 and 17, cheque return
memos at Exh.18 and 19, office copy of the demand notice at Exh.20,
postal receipts at Exh.21, Acknowledgment Card at Exh.22, the not
claimed envelop at Exh.23 and closed evidence. As against this accused
has examined himself at Exh.33.
8. 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.058529
dated 13.10.2017 for Rs.3,81,152/- and
No.058530 dated 31.10.2017 for
Rs.3,80,972/- drawn on Oriental Bank of
Commerce in favour of the complainant in
discharge of the legal debt or liability to pay
the price of steel iron rods delivered at Pali,
Rajasthan?
: Yes.
2. Whether it is proved that cheques in
question were dishonored for the reason
‘Funds Insufficient’ ? : Yes.
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3. Whether it is proved that the accused has
received demand notice dated 05.02.2018
issued u/sec.138(b) of the Negotiable
Instruments Act sent by the complainant?
: 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 is
convicted as per
final order.
REASONS
AS TO POINT NO.1:-
9. It is the case of the complainant that subject cheques
Exh.16 and 17 are issued by the accused against the Steel Rods
supplied to different consignees at Rajasthan as per the order of the
accused vide Tax Invoices dated 09.10.2017. The authorization of the
complainant is not in dispute. The delivery of the goods is disputed by
the accused. Even the accused has not disputed issuing subject cheques
to the complainant except the defence of issuing blank signed cheques
or obtaining it forcibly. In the light of said facts let us see whether the
complainant had proved issuing subject cheques against existing legal
liability on the part of the accused.
10. The oral evidence of the complainant PW-01, Manager of
the complainant company unfolds that as per the order given by the
accused 22 matrix ton iron rods worth Rs.7,60,000/- were supplied and
delivered to J.C. Steel Rajasthan and Image Enterprises at Rajasthan.
After one week to fifteen days of delivery of goods complainant has
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received the cheques in question from the accused. The material was
supplied through the truck provided by the accused etc. In cross
examination, he has admitted that the Lorry Receipt Exh.15 does not
bear the signature in tocken of delivery of goods. Except this admission
rest of the evidence of PW-01 in cross examination has not shaken the
entire testimony on the point of alleged transaction, issuance of
cheques, its dishonour etc.
11. The advocate for the accused submitted that the Tax
Invoices are bogus. Lorry receipt is also bogus. It nowhere discloses
delivery of goods to the accused. After perusal of Tax Invoices Exh.13
and 14, it indicates that goods were purchased by Image Enterprises of
which the accused is Proprietor. Said goods were delivered at Pali,
Rajasthan as per the instructions of the accused. The delivery of the
goods was ex-factory that is the same was to be carried by the accused
at his costs to the destination after removing from the factory. The
Lorry receipt pertaining to Delhi-Rajasthan Transport Company
produced at Exh.15 shows that the goods were dispatched through
Truck No.GJ-12-Z-4366 which is corresponding to the Truck number
mentioned in invoices Exh.13 and 14. The name of buyer shows Image
Enterprises, Mumbai. It is quite clear from the carbon copy of the Lorry
receipt that goods worth Rs.7,50,751/- were dispatched and delivered
as per the order of the accused at Rajasthan.
12. No question crops up to disbelieve the oral evidence of PW-
01 coupled with the documentary evidence of Lorry receipt which is
copy of consignor. Furthermore, the goods are carried out by the
accused to the destination after getting out of factory. There is no police
complaint or any legal action taken by the accused for non supplying
goods or non delivery of the goods as alleged in defence. Therefore, I
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do not found any legal substance in the submission of the advocate for
accused that there is no signature of receiver of goods on Lorry receipt
and therefore the goods were not at all supplied as averred.
13. It is defence of the accused that he had issued subject
cheques for purchasing material that is Steel Rods to Mr. N.K. Mishra
who forcibly obtained said cheques. In oral evidence of accused he
deposed giving two blank signed cheques to said N.K.Mishra who
assured him to supply the material within 10 days. He further states
that he had not received any material from complainant company.
Around a month’s period he tried to contact the complainant company
for not sending the material but later on said N.K.Mishra threatened
him and did not return blank cheques.
14. In this contest, if oral evidence of the accused is minutely
scrutinized, it appears clearly false. Because the accused states that he
had given blank signed cheques in evidence. On the contrary, if the
cheques Exh.16 and 17 are perused, it shows the cheques written and
signed by one and the same person with same pen and ink. There is no
room to take doubt about the cheques. Both cheques are of different
dates. Therefore, there is reason to believe that accused has deposed
false and taken false defence of giving blank cheques to the
complainant or said N.K.Mishra. The post conduct of the accused is also
questionable. A prudent man if goes through said unbearable situation
will immediately approach to the police or take legal action for alleged
forcible act of obtaining cheques and threatening to kill. There is
nothing placed on record by the accused to substantiate his contention
as probable and trustworthy defence.
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15. While comparing and scrutinizing oral as well as
documentary evidence, complainant’s evidence appears more
trustworthy than the false defence and oral evidence of accused. It is
crystal clear from the evidence on record that accused has ordered the
Steel goods to be supplied at Rajasthan at his instance and accordingly
had given subject cheques in discharge of said legal liability.
Complainant is holder in due course of subject cheques. Obviously
presumption under section 139 and 118(a) will follow and its benefit
will go to the complainant in absence of trustworthy and probable
defence of the accused.
16. The accused has even not received or replied the demand
notice under section 138(b) sent to him on his correct address. He has
not disputed as to the correctness of the address. Therefore, there is
reason to believe that even after getting intimation of Registered Post,
he has deliberately not claimed the Registered Post Parcel by which the
demand notice was sent to him. This is another incriminating substance
appears against him. In the facts and circumstances, I hold that subject
cheques were issued towards and in discharge of legal liability to pay
the Steel goods supplied to the accused or at his instance to his parties
at Rajasthan. Hence, I answer the point No.1 in the affirmative.
AS TO POINT NO.2 :
17. The complainant has produced the cheque return memos
at Exh.18 and 19 dated 10.06.2018. It bears signature of the
authorized signatory of Kotak Mahindra Bank Ltd. alongwith with the
seal of the bank which shows that said cheques were dishonoured for
the reason ‘Funds Insufficient’ in the account of accused. Section 146
draws a presumption as to the bank slips. The accused has not disputed
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reason for dishonor of above cheques. He has not produced any
evidence to show that on the date of presentation of said cheques for
realization, there was sufficient balance in his account. Therefore, I
answer the point No.2 in the affirmative.
AS TO POINT NO.3 :
18. Complainant has produced office copy of the demand
notice dated 05.02.2018 at Exh.20 alongwith postal receipt Exh.21,
Acknowledgment at Exh.22 and not claimed envelop at Exh.23. As
stated above accused has not disputed the correctness of the addresses
mentioned on the notice. Therefore, in view of presumption under
section 27 of General Clauses Act, it will have to be held that accused
was duly served with the demand notice under section 138(b) by the
complainant. The defence of the accused that he has not received any
notice appears false. Hence, I answer point No.3 in the affirmative.
AS TO POINT NOS.4 AND 5 :
19. For proving the guilt of the accused u/sec.138 of the
Negotiable Instrument Act, first of all the complainant has to prove
existence of legal liability or debt, issuing of cheque in discharge of
legal debt or legally enforceable liability. The complainant has proved
the existence of legal liability to pay the price of the Steel goods sold to
the accused on the date of cheques. Complainant’s oral and
documentary evidence has proved existence of legal debt on the date of
subject cheques towards the accused.
20. Complainant has also proved that cheques Exh.16 and 17
were issued by the accused against said legal liability. The cheques
were dishonored for the reason ‘Funds Insufficient’ in the account of
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the accused. Thereon, complainant has proved service of demand
notice under section 138(b) upon the accused within statutory period.
Accused has not replied the demand notice nor made payment as called
for. The same has given cause of action for the complainant to present
the complaint. The complaint is also filed by authorized person within
statutory period of 30 days after arising cause of action. The
authorization of PW-01 to represent the complainant is not challenged
by the accused.
21. Now coming to the defence of the accused. The defence of
the accused is not trustworthy. Mere denial of transaction or an
omnibus denial of the entire transaction could not consider as a tenable
defence. Obtaining cheques under threat is not proved by the accused
nor any such suspicious circumstances are brought on record. By
disobeying the demand notice Exh.20, the accused has committed an
offence punishable under section 138 of Negotiable Instrument Act.
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.
22. 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.
23. Heard accused on the point of sentence. There seems no
repentance on the face of the accused. Advocate for the accused
submitted that minimum punishment be granted. Heard advocate for
complainant. He prayed for maximum punishment.
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24. 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 defences taken by the accused are without evidence.
The transaction between parties is commercial transaction. The accused
has not paid the legal dues towards him. It is crystal clear that accused
has misused the negotiable instruments allotted by his banker to him
for defrauding the genuine creditors in commercial transactions. In
short, he has used the valuable negotiable instruments to defraud his
creditors. Therefore, this court do not deem fit to show leniency in
awarding punishment to the accused by way of substantive sentence as
well as compensation. Showing leniency will pass a wrong message in
the society rather it will encourage the defrauders to use the negotiable
instruments as a protracting tool.
25. While sentencing and determining the quantum of
punishment, justice also need to be done with the complainant. If
accused would have paid the price of goods supplied at his instance to
the complainant at relevant time, the complainant could have utilized
said amount in his business. Therefore, complainant needs to be
compensated in addition to substantive sentence to the accused. Hence,
I pass following order.
ORDER
1. Accused Dhanpat Hansraj Baid@ Paid, Age 44 years, R/o
Byculla, Mumbai is hereby convicted vide section 255(2) 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 02 (two) years
and to pay fine of Rs.10,000/- (Rupees Ten Thousand only), in
default of payment of fine shall suffer further simple
imprisonment for further period of 15 (fifteen) days.
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2. In addition to substantive sentence, the accused shall pay
compensation of Rs.10,00,000/- (Rupees Ten Lakhs only) to the
complainant u/sec.357(1)(b) of Code of Criminal Procedure.
3. Fine if recovered be credited to Government.
4. Bail bond of accused stands forfeited and cancelled.
5. The copy of Judgment be supplied to the accused free of cost.
(Judgment is dictated and pronounced in the open Court).
( M. P. Saraf )
Metropolitan Magistrate,
Date : 24.05.2024 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 : Metropolitan Magistrate, 58th Court, Bandra,
Mumbai.
Dictated in open court on : 24.05.2024.
Transcribed and Typed on : 24.05.2024.
Judgment printed and Signed on : 24.05.2024.
Judgment Uploaded on : 24.05.2024.
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