Order 2

Order Details: Order Below EX 1
Pdf Text: MHMM180045042024 Summary Cases/5800165/2024
Sunil Seth Huf Through Its Karta Mr Sunil
Seth Vs. Shree Samarth Construction
IN THE COURT OF JUDICIAL MAGISTRATE(FIRST CLASS),
58TH COURT, BANDRA, MUMBAI
ORDER BELOW APPLICATION EXH.44
This is an application filed for granting interim compensation
u/sec.143-A of the Negotiable Instrument Act.
2. It is contended of behalf of the complainant that complainant has
advanced Rs.75 lakhs as investment to the accused. Complainant was
promised to make partner of accused No.1 firm. Accused have broken
the promise. For returning the investment made by complainant,
accused has issued subject cheques in discharge of said liability.
Accused have pleaded not guilty. Hence, this application.
3. Accused strongly objected the interim application vide detailed
reply Exh.47 contending that for final adjudication both parties will
have to lead evidence. Presumption under section 118(a) and 139 of
the Act are rebuttable presumption. Case of complainant is weak
having less chances of success during the trial etc. Accordingly, prayed
for rejecting the application.
4. Heard both sides.
5. Admittedly, presumption under section 118(a) and 139 are not
conclusive and same are rebuttable. However, for determining
application under section 143-A, Court has to see prima facie evidence
on record with probable chances of succeeding the trial. The accused
have not denied receiving the payment under investment made by the
complainant. Said payment is made by RTGS transfer to the accused.
The same is more than sufficient for inferring about existence of legal
liability which is sine qua non for attributing criminal liability under
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Order below Exh.44
section 138 of the Negotiable Instrument Act.
6. In that context, second question crops up for determination
whether accused have replied the statutory demand notice to assume at
least some basic foundation for their defence? Needless to state that
accused have not replied the notice nor accepted the same. All the
postal envelops containing demand notices produced by the
complainant shows postal remark ‘Unclaimed’. The same is as good as
of good service of notice. The presumption under section 27 of the
General Clauses Act would come into play. Therefore, the submissions
made on behalf of the accused though appears somewhat legal are
indigestible considering the prima facie evidence on record.
7. Provisions under section 143-A itself made for giving a redressal
remedy to the holder of the instrument with an intention of fastest
remedy in civil nature. Though provision is not mandatory, the
intention of legislature behind enacting said provision will have to be
considered. Therefore, it can not be said that merely because the
provision is directory interim compensation can not be granted.
8. While balancing statutory right and right of defence, the
statutory right awarded to the complainant being holder of the
negotiable instrument will supersede. There is sufficient prima facie
material and evidence on record to follow presumption under section
118(a) and 139 of the Act in favur of the complainant. A cheque is not
mere piece of paper. Issuance of cheque not disputed. Therefore, this is
a fit case to invoke powers conferred upon this court under section
143-A of the Act to award interim compensation considering the future
time span for final adjudication. Hence, I pass following order.
O R D E R
1) The application is allowed.
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Order below Exh.44
2) Accused are directed to make payment of 20%
of cheque amount within 60 days from today to
the complainant as an interim compensation.
3) Order dictated and pronounced in open court.
4) Order be uploaded on Court Web Portal.
( M. P. Saraf )
Judicial Magistrate, First Class,
Date : 31.12.2025 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 : 31.12.2025
Transcribed and Typed on : 31.12.2025
Order printed and Signed on : 31.12.2025
Order Uploaded on : 31.12.2025
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