Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 C.C.No.847/SS/2018.
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MHMM180047312018
Filed on : 16/04/2018
Decided on : 14/03/2022
Duration : 03Y 10M 27D
IN THE COURT OF METROPOLITAN MAGISTRATE,
58TH COURT, BANDRA, MUMBAI.
(Presided over by M.Y.Wagh)
Exh. 23
Particulars of offence:
a. The serial number of the
case
: C.C. No.847/SS/2018
(CNR NO.MHMM180047312018)
b. The date of commission of
the offence
: 23.03.2018
c. The name of the
complainant
: Mr. Pradeep Gogia,
Age 61 years, R/o.Uma Sadan, 4th
Floor, 10th Road, Near Guru
Gangeshwar Mandir,
Khar(W),Mumbai 400052.
d. The names of the accused
persons, and their
parentage and residence
: Rupesh Modi,
The Proprietor of
M/s.Aashi Creations,
Add.: Flat No.406, Pee
Dee Society, Ram Nagar,
Borivali (W),Mumbai – 400 092.
e. The offence complained of
or proved
: Section 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 : 14032022
Mrs. Neha S. Choudhary : Ld. advocate for the complainant.
Accused in person
J U D G M E N T
( Delivered on 14/03/2022)
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. Is it proved that, in order to discharge the
legally enforceable debt or liability, the
accused had issued cheque bearing
No.159535 dated 16.02.2018 of Rs.3,00,000/
drawn on SVC Bank, Borivali, Mumbai, in
favour of the complainant?
Proved.
2. Is it proved that cheque in question was
dishonored for the reason 'Funds Insufficient'
and despite service of demand notice the
accused failed to pay the cheque amount to
the complainant and thereby committed the
offence punishable under section 138 of the
Negotiable Instruments Act?
Proved.
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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 knows the accused through
Finance Broker Mrs. Reshma Nandgiri. He gave an amount of
Rs.3,00,000/ by cheque No.000233 drawn on HDFC Bank, Khar
branch, dated 25.09.2017 to the accused as the accused is in urgent
need of finance and he shall return the same. The accused executed and
accepted a bill of exchange of Rs.3,00,000/ dated 25.09.2017.
Lateron, in discharge of legally enforceable liability accused issued a
cheque bearing No.159535 of Rs.3,00,000/ dated 16.02.2018 drawn
on SVC Bank, Borivali, Mumbai in favour of the complainant. The
complainant filed the disputed cheque at Exh.13. The complainant
presented the subject cheque within stipulated period and it is
dishonored as per bank memo at Exh.14 for the reason 'Funds
Insufficient'. The complainant has filed Bills of Exchange executed
between him and the accused, at Exh.17 in which accused admitted the
liability of repayment to the complainant. The complainant issued the
demand notice on 01.03.2018 through his advocate. The office copy of
demand notice is filed at Exh.15. The Postal track report and receipt is
filed at Exh.16. Though, demand notice is returned with remarks
“unclaimed”, it is sent on correct address of the accused. Thus, it can be
presumed that notice is duly served upon the accused. Therefore, the
oral evidence of the complainant is corroborated with 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
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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 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
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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 Rupesh Modi 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.4,50,000/ (Rupees Four Lakhs Fifty Thousand),
in default of payment of fine he shall suffer simple
imprisonment for 3(Three) months.
2. The compensation of Rs.4,40,000/ (Rupees Four Lakhs Forty
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 : 14/03/2022. 58th Court, Bandra, Mumbai.
ard/
Dictated on : 14/03/2022.
Typed on : 14/03/2022.
Signed on : 14/03/2022.
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