Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 C.C.No.117/SS/2018
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MHMM180026502018
Filed on : 13/04/2018.
Decided on : 23/03/2022.
Duration : 03Y 11M 11D .
IN THE COURT OF METROPOLITAN MAGISTRATE,
58TH COURT, BANDRA, MUMBAI.
(Presided over by M. Y. Wagh)
Particulars of offence: Exh.24
A. The serial number of the
case
: C.C. No.117/SS/2018
(CNR NO.MHMM180026502018)
B. The date of commission of
the offence
: 13.01.2018
C. The name of the
complainant (if any)
: Afridi Shahid Shaikh
Age : 33 years, Occ.Business,
R/o.Room No.01, Ground Floor,
Bismillah Building, Bypass Hill Road,
Almas Colony, Sainik Nagar, Kausa,
Thane – 400 612.
D. The names of the accused
persons, and their
parentage and residence
: Mohammed Yusuf Ayub Khan
Age : 33 years, Occ. Business,
Proprietor of Khan Travels,
R/o.Room No.909, KGN Chawl Pella
Bungalow, ONGC Rajiv Gandhi
Nagar, U.M. Thevar Marg, Dharavi,
Sion, Mumbai – 400 017.
Also having address at Ground Floor,
Rajiv Gandhi Nagar, U.M.Thevar
Marg.
E. The offence complained of
or proved
: U/sec.138 of the Negotiable
Instrument Act, 1881.
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F. The plea of the accused
and their examination (if
any)
: The accused pleaded not guilty.
G. The final order : The accused is convicted.
H. The date of such order : 23.03.2022
Mr. M.H. Mulla : Advocate for the complainant.
Mr. C. P. Yadav : Advocate for the accused.
J U D G M E N T
( Delivered on 23.03.2022)
1. The following points arise for my determination to which I
have recorded my findings before them for the reasons discussed there
below
POINTS FINDINGS
1. Does the complainant prove that the
accused has issued disputed cheques 1)
bearing No.167219 of Rs.50,000/ dated
16.09.2017, 2) bearing No.167220 of
Rs.40,000/ dated 30.09.2017 and 3) bearing
No.167221 of Rs.40,000/ dated 15.10.2017,
drawn on Canara Bank, Dharavi Micro
Finance Branch, Mumbai, in favour of the
complainant to discharge the debt or liability
and the cheques were dishonored for the
reason “Funds Insufficient”?
Affirmative
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2. Does the complainant prove that after
service of the demand notice under
Sec.138(b) of the Negotiable Instruments Act
the accused failed to make the payment of
cheques amount and thereby committed the
offence punishable under sec. 138 of the
Negotiable Instruments Act?
Affirmative
3. What order? As per final order.
REASONS
As to point Nos.1 and 2.
2. The complainant stated that the accused is his friend since
two years. As per the need of the accused for his travel business, the
complainant gave friendly loan in cash of Rs.40,000/ on 24.01.2017,
Rs.40,000/ on 27.01.2017 and Rs.50,000/ on 01.02.2017, in presence of
their common friend. Lateron, in discharge of legal liability accused issued
three cheques 1) bearing No.167219 of Rs.50,000/ dated 16.09.2017,
2) bearing No.167220 of Rs.40,000/ dated 30.09.2017 and 3) bearing
No.167221 of Rs.40,000/ dated 15.10.2017, drawn on Canara Bank,
Dharavi Micro Finance Branch, Mumbai, in favour of the complainant and
handed over cash of Rs.20,000/ the complainant. The complainant filed
three disputed cheques at Exh.12 colly. The complainant presented the
subject cheques within stipulated period and it is dishonored as per bank
memo at Exh.13 colly. for the reason 'Funds Insufficient'. The
complainant issued the demand notice on 22.12.2017 through his
advocate. The office copy of demand notice is filed at Exh.14 and two
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postal receipts are filed at Exh.15 colly. Two envelops containing demand
notice were returned with remark 'unclaimed' are filed at Exh.16 colly.
Though, notice were returned with remark unclaimed, the accused has not
challenged his address. Notices are sent on correct address of the accused.
Thus, it can be presumed that notices are duly served. In such
circumstances presumption under section 139 of the Negotiable
Instruments Act is applicable to the case. The onus shifted to the accused.
The accused has not disputed the liability. All the essential ingredients are
established. The accused has not given rebuttal evidence.
3. The complainant has to prove essential ingredients under
section 138 of the Negotiable Instruments Act. Once ingredients are
proved, initial presumption under section 139 of the Negotiable
Instruments Act is established. Onus shifted on the accused to rebut it. In
the case of Rangappa V/s. Mohan 2010 Law Suit (S.C.) 277, the Hon'ble
Apex Court has held that there is initial presumption which favours the
complainant that the cheque was issued to discharge of debt or other
liability. It is further held that once the cheque in question is issued and
signature thereon is admitted to be of the accused, it has to be presumed
that the cheque is issued to discharge of debt or other liability.
Presumption is rebuttable by the accused by leading probable evidence.
4. In view of judgment in Indian Bank Association V/s. Union
of India, (2014)5 SCC 590, it is held that the accused should file an
application under section 145(2) of the N.I. Act for recalling a witness of
complainant. In this case the accused failed to recall the complainant for
cross examination. The present case is for the offence under section 138 of
the N.I. Act and tried as summarily. In the present case, opportunity to
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crossexamine to the complainant had been given to the accused, but he
failed to crossexamine the witness. In Rajesh Agarwal V/s. State and
another (decided by Hon’ble Delhi H.C. on 2872010), it is held that if
there is an application under section 145(2) of N.I. Act for recalling a
witness of complainant, the court shall decide the same, otherwise, it shall
proceed to take defence evidence on record and allow cross examination
of defence witnesses by the complainant. Thereafter, to hear arguments of
both sides and to pass order/judgment. Hence, there is no need to take
statement of accused under section 313 of the Code of Criminal
Procedure. Hence, the accused committed the offence punishable under
section 138 of the Negotiable Instruments Act. Therefore, I answer to
point Nos.1 and 2 in the affirmative.
5. The case is tried as summarily. Hence, there is no need to
hear the accused on the quantum of sentence. The accused and his Ld.
Counsel continuously remained absent. The case is more than 03 years
old. Therefore, the complainant is entitled for compensation under
section 357 (1) of the Criminal Procedure Code. Accordingly, I proceed to
pass following order.
ORDER
1. Accused Mohammed Yusuf Ayub Khan is convicted for the offence
punishable under section 138 of the Negotiable Instruments Act,
1881, in view of the section 255(2) of The Criminal Procedure
Code. He shall suffer rigorous imprisonment for 2(Two) months
and pay the fine of Rs.1,60,000/ (Rupees One Lakh Sixty
Thousand), in default of payment of fine he shall suffer simple
imprisonment for 3(Three) Months.
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2. The compensation of Rs. 1,50,000/ (Rupees One Lakh Fifty
Thousand) is awarded to the complainant out of the fine; if
recovered, in view of section 357(1) of The Criminal Procedure
Code.
3. The accused shall surrender his bail bond.
4. The original documents filed by complainant be returned to him
after the appeal period.
5. Issue nonbailable warrant against the accused for execution of
sentence.
6. The copy of Judgment be delivered to the accused free of cost.
(Judgment is dictated and pronounced in the open Court).
(M.Y.Wagh)
Mumbai, Metropolitan Magistrate,
Date : 23/03/2022. 58th Court, Bandra, Mumbai.
ard/
Dictated on : 23/03/2022.
Typed on : 23/03/2022.
Signed on : 23/03/2022.
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