Order 1

Order Details: Order Below EX 1
Pdf Text: 1 C.C.No.525/SS/2021
Exh.13
MHMM180039672021
C.C.No.525/SS/2021
MRS. RUBY AMIN MERCHANT
Vs. MR. MOEZ AKBAR
MUSCATWALA
IN THE COURT OF METROPOLITAN MAGISTRATE, 58TH COURT,
BANDRA, MUMBAI
ORDER BELOW APPLICATION EXH.13
1. This is an application filed by the complainant for seeking
interim compensation vide section 143(A) of The Negotiable
Instrument Act.
2. It is contended on behalf of the complainant that the
disputed cheque is issued by the accused towards transaction in
between complainant and accused for managing the transaction of
stock exchange. The accused carried various transactions from the
account of the complainant during the period of 01.04.2019 to
31.03.2020. The profit and loss was to be shared in equal proportion
after deducting tax. Unfortunately, during the said period accused
incurred total loss of Rs.16,50,970/. As such the disputed cheque is
given over 50% share of the complainant. Hence this application.
3. The accused objected the application vide reply at Exh.16
on several grounds. The accused had denied any transaction or dealing
with the stocks of the complainant. According to the accused the
complainant has forged and fabricated disputed cheque of more than
10 years old. Accordingly, prayed for rejecting the application.
4. Heard, Advocate Shakir Qureshi for the complainant and
advocate Guarav Yadav for the accused.
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2 C.C.No.525/SS/2021
Exh.13
5. On hearing both sides, it is not in dispute that the disputed
cheque belongs to the account of accused. The accused is not denying
the signature over cheque at Exh.18. However, according to the
defence of the accused the disputed cheque is of 10 years back and the
same is forged or misused by the complainant in present transaction.
The accused has also denied any agreement in between him and the
complainant in respect of sharing profit and loss or maintaining the
stocks belonging to the complainant.
6. In the light of such disputed facts, it is incumbent on the
court to see whether interim compensation can be granted as of right
or simply statute provides the remedy. The law is very settled and
clear that the provision is not mandatory. The same is directory. There
is nothing on record placed in support of the contention of the
complainant to show any agreement of sharing profit and loss in
between the complainant and accused. The complainant and his
advocate submitted that there was oral agreement in between the
complainant and accused during the period of 01.04.2019 to
31.03.2020. The oral agreement could be accepted, if the complainant
would have filed any supporting transaction slip or other documents
relating to his bank account or exchange of stocks. In absence of clear
and cogent evidence, it would not be safe, rather just and proper to
invoke powers conferred upon this court to grant an interim
compensation. The amount of cheque is also huge. As per the
contention of the complainant the 50% share of loss comes to
Rs.53,25,485/ and cheque is for Rs.30,00,000/. Therefore,
considering the rival pleas of the parties and substantial grounds of
defence, I deem fit to go for the trial instead of granting interim
compensation to the complainant. Hence, I pass following order.
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3 C.C.No.525/SS/2021
Exh.13
O R D E R
1) The application is rejected.
2) The accused to finish the crossexamination of
the complainant as early as possible.
3) Both parties and advocates are requested to co
operate the court to finish the trial as early as
possible.
4) Order dictated and pronounced in open court.
( M. P. Saraf )
Metropolitan Magistrate,
Date : 06.07.2023 58th Court, Bandra, Mumbai.
J.O.Code: MH01362
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