Order 1

Order Details: Order Below EX 1
Pdf Text: MHMM180035422022
Summary Cases/5800265/2022
MS. PRANALI DILIP MANJAREKAR Vs. SHRI.
DIPENDRA DINESH KANADE
IN THE COURT OF JUDICIAL MAGISTRATE(FIRST CLASS),
58TH COURT, BANDRA, MUMBAI
ORDER BELOW APPLICATION EXH.35
This is the application for an interim compensation filed
u/sec.143-A of the Negotiable Instrument Act.
2. It is contended on behalf of the complainant that accused has
pleaded not guilty and claimed to be tried. He has issued the cheque
against legal liability. Hence this application.
3. Accused failed to file his reply despite more than sufficient
opportunity. Accordingly, order to proceed with the application without
reply of the accused came to be passed on 13.03.2025.
4. Heard advocate for complainant. Accused who himself is an
advocate and contesting the complaint in person absent though called out
repeatedly.
5. It is the contention of the complainant that she had paid
amount of Rs.10 lakhs to the accused as a part amount of consideration
price of room/flat to be provided in SRA Scheme approximately costing
worth Rs.25 lakhs. Accused introduced himself as a Proprietor of 21
Square Plus (Associates & Advocate Firm). Keeping trust on him, she
agreed to purchase the room in SRA Scheme between area of Jogeshwari
to Santacruz. Out of total consideration of Rs.25 lakhs she paid Rs.10
lakhs by cheques to the accused. Even she executed an affidavit at the
instance of accused to pay installment of Rs.5 lakhs for investing time by
the accused for said work. Later on accused failed to provide her
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room/flat in SRA Scheme. Accordingly, accused agreed to return the
amount of Rs.10 lakhs. He repaid Rs.1,50,000/- on various dates to the
complainant and issued subject cheque of Rs.8,50,000/- for remaining
payment which was dishonoured. Hence, this application.
6. On hearing advocate for the complainant it apprises that
complainant reposed the confidence and trust upon the accused looking
into his profession and assurance to provide her a room/flat in SRA
Scheme within the area of Jogeshwari to Santacruz. Believing upon him
and relying his promise complainant paid Rs.10 lakhs to the accused
towards said deal. So far as making payment of Rs.10 lakhs by the
complainant to the accused is concerned, the same is clearly reflected in
her bank account statement produced at Exh.21. It clearly shows that
cheque of Rs.5 lakhs was credited to the account of Square Plus on
20.03.2019. It further indicates entry dated 04.05.2019 pertaining to
amount of Rs.3 lakhs paid by the complainant to Square Plus. Next entry
dated 10.06.2019 shows that an amount of Rs.2 lakhs was credited into
account of Square Plus by cheque. Therefore, the statement of the
complainant as to making payment of Rs.10 lakhs to the accused who is
Proprietor of Square Plus firm of Advocate is prima facie established.
7. Secondly, accused has not disputed that he is not a Proprietor
of said legal firm, 21 Square Plus. The signatures of the accused on
affidavit Exh.22, 23, cheque Exh.25, adjournment application Exh.18, plea
of accused Exh.17 are similar and identical. Therefore, there is reason to
believe that subject cheque is issued by the accused in the capacity of
Proprietor of 21 Square Plus (Associates & Advocate Firm) in discharge of
legal liability to repay the remaining amount of Rs.8,50,000/- received
from the complainant.
8. So far as legality of the transaction, assurance given by the
advocate to provide a room/flat in SRA Scheme is concerned, the same
can be seen at the time of trial. It is a part of evidence. At this stage of the
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proceeding, it can not be said that there is no legal debt or liability in
existence on the date of issuance of the cheque by the accused.
9. The case of the complainant as to making payment of Rs.10
lakhs is supported by the documentary evidence of certified copy of bank
account statement Exh.24 and subject cheque Exh.25. In absence of any
denial and defence by the accused, there is reason to beleive that subject
cheque was issued by the accused in discharge of his legal liability to
repay the amount on failure of fulfilling his promise. Needless to state
that complainant a layman has trusted upon accused being an advocate
and reposed confidence on his words. Therefore also, the transaction can
not be said to be an illegal transaction excluding the same within the
ambit of proviso to section 138 of the Act. Assurance or dealing to assist
or provide room in SRA Scheme by the Advocate can not be termed to be
an illegal transaction. Therefore, the transaction in between parties get
sanctity of an Agreement may be oral. The same confers resultant legal
obligation to refund the part amount of consideration paid by the
complainant in absence of express condition of forfeiture in case of failure
to perform the Agreement. The right to receive said amount exists in
favour of complainant.
10. The documents on record are more than sufficient to
establish the contention of the complainant. In my view, this is a fit case
to invoke the powers conferred upon this court under section 143-A
considering long standing time span for conclusion of the trial. Hence, I
pass following order.
O R D E R
1) The application is allowed.
2) Accused is directed to make payment of 20% of
cheque amount within 60 days from today to the
complainant as an interim compensation.
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3) Order be uploaded on Court Web Portal for the
knowledge of the parties.
4) Order dictated and pronounced in open court.
( M. P. Saraf )
Judicial Magistrate, First Class,
Date : 22.04.2025 58th Court, Bandra, Mumbai.
J.O.Code: MH01362
CERTIFICATE
I affirm that the contents of this P.D.F. file Order are same, word to word as per the
original Order.
Name of Stenographer : Mrs. Aditi Ravikiran Dalvi
Court : Judicial Magistrate (First Class), 58th Court,
Bandra, Mumbai.
Dictated in open court on : 22.04.2025
Transcribed and Typed on : 22.04.2025
Order printed and Signed on : 22.04.2025
Order Uploaded on : 22.04.2025
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