Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 C.C.No.839/SS/2018
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MHMM180046172018
Filed on : 13/04/2018.
Decided on : 09/03/2022.
Duration : 03Y 10M 14D .
IN THE COURT OF METROPOLITAN MAGISTRATE,
58TH COURT, BANDRA, MUMBAI.
(Presided over by M. Y. Wagh)
Particulars of offence: Exh.26
A. The serial number of the
case
: C.C. No.839/SS/2018
(CNR NO.MHMM180046172018)
B. The date of commission of
the offence
: 31.03.2018
C. The name of the
complainant (if any)
: B.N.Jagdishwala HUF
Through its Karta
Bhupendra N. Jagdishwala
Age : 72 years, having address at B
1002, Satellite Tower, GEN. A.K.
Vaidya Marg, Goregaon(E), Mumbai
400 063.
D. The names of the accused
persons, and their
parentage and residence
: Huzaifa Shabbir Kapasi
Age : Adult, having address at 304,
Chandmal Nagar, Mahavir Mahal,
Near Police Station, Uttan Road,
Bhyander(W).
E. The offence complained of
or proved
: U/sec.138 of the Negotiable
Instrument Act, 1881.
F. The plea of the accused
and their examination (if
any)
: The accused pleaded not guilty.
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G. The final order : The accused is convicted.
H. The date of such order : 09.03.2022
Adv. Kunjal Sanghavi : For the complainant.
Adv. Satish Pandey : For the accused.
J U D G M E N T
( Delivered on 09.03.2022)
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 cheque bearing
No.457873 of Rs.5,00,000/ dated
24.02.2018 drawn on ICICI Bank, Mind
Space Branch, Malad(W), Mumbai, in favour
of the complainant to discharge the debt or
liability and the cheque was dishonored for
the reason “Funds Insufficient”?
Affirmative
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
cheque amount and thereby committed the
offence punishable under sec. 138 of the
Negotiable Instruments Act?
Affirmative
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3. What order? As per final order.
REASONS
As to point Nos.1 and 2.
2. The complainant stated that he is an HUF and Mr. Bhupendra
N. Jagdishwala is its Karta. The complainant advanced a sum of
Rs.5,00,000/ as a friendly loan to the accused for a period of one year.
Lateron, in discharge of legally enforceable liability accused issued one
cheque bearing No.457873 of Rs.5,00,000/ dated 24.02.2018 drawn on
ICICI Bank, Mind Space Branch, Mumbai in favour of the complainant.
The complainant filed the disputed cheque at Exh.17. The complainant
presented the subject cheque within stipulated period and it is dishonored
as per bank memo at Exh.18 for the reason 'Funds Insufficient'. The
complainant has filed Bills of Exchange executed between him and the
accused, at Exh.16 in which accused admitted the liability of repayment to
the complainant. The disputed cheque is issued by the accused to the
complainant in view of said agreement. The complainant issued the
demand notice on 12.03.2018 through his advocate. The office copy of
demand notice with RPAD Acknowledgment card is filed at Exh.19. The
demand notice was duly served upon the accused on 15.03.2018.
Therefore, the oral evidence of the complainant is corroborated to his
documents. 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.
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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
crossexamined 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
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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 Huzaifa Shabbir Kapasi 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.8,00,000/ (Rupees Eight Lakhs) , in
default of payment of fine he shall suffer simple imprisonment for
3(Three) Months.
2. The compensation of Rs. 7,90,000/ (Rupees Seven Lakhs Ninety
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.
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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 : 09/03/2022. 58th Court, Bandra, Mumbai.
ard/
Dictated on : 09/03/2022.
Typed on : 09/03/2022.
Signed on : 09/03/2022.
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