Final Order 2

Order Details: Copy of Judgment
Pdf Text: Summons Cases SS/5800768/2021
Old Summons Case no. 2081/SS/2014
Judgment Exh.79
MHMM180063072021
Filed on :15.11.2014
Registered on :28.10.2021
Decided on :31.01.2025
Duration :10-Y 02-M 16-D
IN THE COURT OF JUDICIAL MAGISTRATE (FIRST CLASS),
58TH COURT, BANDRA, MUMBAI.
(Presided over by M. P. Saraf)
Summons Cases SS/5800768/2021
Old Summons Case no. 2081/SS/2014
(CNR NO.MHMM180063072021)
Exh.79
Rafiq Naimuddin Khan
Age – Adult, Occupation – Nill,
R/O – Room no.9, Attarwali Chawl, Near fish
Market, Chirag Nagar, Ghatkopar (West),
Mumbai - 400086
…. Complainant.
Versus
Mrs. Rashida Yusuf Khan
Age – 51, Occupation – Housewife,
R/O – Room no.2, Amina Bi Chawl, Near Pankhe
Shah Baba Dargah, Ghatkopar (West), Mumbai -
400086
…. Accused.
Offence U/sec.138 of the Negotiable Instruments Act, 1881.
Mr. Laxmikant N. Shrimangale Advocate for the complainant.
Mr. N.R. Tiwari Advocate for the accused.
JUDGMENT
(Delivered on 31.01.2025)
This is the complaint filed under section 138 of The
Negotiable Instrument Act for the reason of dishonor of cheque alleged
to be issued for repayment of security deposit given to the accused
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before executing leave and license agreement for the room premises.
2. Complainant’s case is as follows:
That he was in need of residential premises after marriage.
He approached to the accused and her sister who was to rent out the
room premises. He paid Rs.2,10,000/- towards security deposit before
entering into agreement of leave and license with the accused.
However accused never handed over possession of the premises nor
executed leave and license agreement. On repeated demand to refund
the security deposit, accused requested him to treat said amount of
security deposit as a friendly loan. Accordingly executed and agreement
that is under Declaration cum Undertaking dated 18.06.2014 showing
that amount paid as a friendly loan to be repaid on or before
20.07.2014. Thereby accused handed over post dated cheque of
Rs.2,10,000/- dated 21.07.2014 to the complainant.
3. It is further contended that, complainant deposited subject
cheque with her banker Standard Chartered Bank, Bandra East,
Mumbai branch for realization. The same was dishonored and returned
unpaid vide bank memo dated 23.07.2014 with reason “Funds
Insufficient”. On 06.08.2014 his banker informed him that the accused
bank name on the cheque and dishonored memo is different. He
brought said fact to the notice of accused. Accused requested him again
to deposit the chqeue with assurance of making arrangement of fund.
Therefore, he again deposited subject cheque but the same was again
dishonor and returned unpaid vide cheque return memo dated
13.09.2014 for the reason “Funds Insufficient”. Statutory notice dated
04.10.2014 was sent to the accused by registered post. The accused
refused to accept the notice. The envelope of the notice returned back
with postal remark “Unclaimed” on 17.10.2014. The accused neglected
to make the payment of dishonored cheque. Hence, this complaint.
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4. The complaint was originally filed before Metropolitan
Magistrate Court at Vikhroli, Mumbai. The same was transferred to this
court on point of jurisdiction vide order dated 13.10.2021 passed by
M.M. 73rd Court, Vikhroli, Mumbai and renumbered as Summons Case
No. 5800768/SS/2021.
5. My Ld. Predecessor has already taken cognizance of the
complaint and issued process against the accused under section 138 of
Negotiable Instruments Act. The accused appeared before my Ld.
Predecessor who recorded plea of the accused at Exh.13. The matter
was transferred at a part heard stage of hearing. The accused claimed
to be tried. The case was tried as summons trial.
6. Heard, Advocate Mr. Laxmikant N. Shrimangale for the
complainant and Advocate Mr. N.R. Tiwari for the accused. The
accused and their advocate were absent.
7. Following points arise for my determination to which I
have recorded my findings with reasons thereto as follows-
Sr.No. POINTS FINDINGS
1. Whether accused has drawn disputed
cheque bearing No.100018 for
Rs.2,10,000/- drawn on The Sahebrao
Deshmukh Co-Op. Bank Ltd Ghatkopar
(W), Mumbai branch, in favour of the
complainant in discharge of the legally
enforceable liability or other debt that is
refund of amount of security deposit or
alleged friendly loan?
: Yes.
2. Whether it is proved that cheque was
dishonored for the reason ‘Funds
insufficient’ by the accused? : Yes.
3. Whether it is proved that the accused
has received demand notice dated
04.10.2014, issued u/sec.138(b) of the
: Yes.
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Negotiable Instruments Act sent by the
complainant making demand of
payment of said cheque amount in
writing within one month of receipt of
information from the bank regarding
dishonour of cheque?
4. Whether it is proved that despite service
of demand notice, the accused failed to
pay the cheque amount within statutory
period of 15 days after receiving notice
and thereby committed an offence
punishable under section 138 of the
Negotiable Instruments Act?
: Yes.
5. What order? : Accused is held
guilty and
convicted.
REASONS
8. To substantiate the contentions raised in the complaint,
complainant has examined himself, as CW-01 at Exh.14, CW-02
Mohammed Shamim Shaikh at Exh.41, CW-03 Ravindra Bandu Chenke,
Branch Manager of SDC at Exh,48. Besides oral evidence complainant
has relied upon Declaration cum Undertaking at Exh.16, Cheque return
memo of complainant’s bank dated 13.09.2014 at Exh.17, disputed
cheque at Exh.18, cheque returned memo dated 06.08.2014 at Exh.19,
cheque returned memo dated 23.07.2014 at Exh.20, statutory notice
dated 04.10.2014 at Exh.21, Register post envelopes which returned
unclaimed at Exh.22 and Exh.23, Postal receipts collectively at Exh.24,
Form no.16 at Exh.33, Office copy of complaint made to Commissioner
of Police, Mumbai on 13.08.2014 at Exh.38, Account opening form of
accused at Exh.49 etc. and closed evidence vide pursis Exh.50. Per
contra, accused has also examined herself at Exh.53 as DW-01, DW-02
Zarina Shaikh Shamshuddin at Exh.57, DW-03 Mohhamad Yusuf Khan
at Exh.63 and closed evidence.
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9. Summery of arguments on behalf of complainant :-
Complainant has examined 3 witnesses and proved the
Declaration cum Undertaking, cheque etc. The defence of the accused
as to money laundering is not shaken the case of complainant. The
signature of the accused on Declaration cum Undertaking and subject
cheque are same. The same are admitted by CW-2. Therefore the
defence of the accused as to misuse of the cheque is false defence. CW-
3 Bank Manager has proved the reason for dishonored, signature of the
accused on the cheque. Accused has not replied the demand notice.
The presumption U/sec 139 of the Act is not rebutted by the accused.
10. Summery of arguments on behalf of accused :-
Complainant has not stated by which mode of payment he
has paid Rs.2,10,000/- to the accused. Accused was in need of financial
help of Rs.2,50,000/- in the year 2014. At the instants of her sister, she
approached to the complainant who used to lend loan on interest. The
blank cheque was given towards security of the loan. Accused handed
over original documents of her shop and blank cheque to the
complainant in presence of her sister and sister of the complainant. The
complainant kept on assuring payment of loan but did not pay any
amount to the accused. He did not return the cheque. She had agreed
to advance loan on interest of 3% per month. Complainant demanded
one year interest in advance. She paid Rs. 75,000/- towards one year
advance interest. Even then complainant has not lend money to her. In
short false complaint is filed against her.
AS TO POINT NO.1:-
11. Complainant has examined himself as well as CW-02, his
father in law and Branch Manager of SDC Bank, as CW-03 to prove the
alleged transaction of giving Rs.2,10,000/- to the accused, issuance of
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cheque by the accused to repay said amount, its dishonour and making
demand by issuing notice. As against it, accused has examined herself,
her sister Zarina as DW-02, her husband Mohd. Yusuf Khan at DW-03.
Besides oral evidence both parties have filed some documentary
evidence which is discussed as the relevant point of finding.
12. The oral evidence of complainant states that being newly
married he was in search of rental premises. In that context, he
approached to the accused. On demand of accused he paid
Rs.2,10,000/- to the accused prior to executing Leave and Licence
Agreement towards security deposit. However, he was neither given
room nor the accused repaid the amount of security deposit. Later on,
on 18.06.2014 the accused executed document of declaration cum
undertaking treating the amount as a friendly loan with assurance to
repay the same within one month. Accordingly, accused issued subject
cheque which was dishonoured and returned unpaid. His evidence
further discloses that accused failed and neglected to make the
payment despite sending notice under section 138(b) of the Act.
13. The evidence of CW-02 father in law of the complainant
unfolds that the transaction of making payment earlier towards security
deposit and subsequently executing document of declaration cum
undertaking took place in his presence. He has witnessed the
transaction dated 18.06.2014 as to executing the declaration cum
undertaking by the accused in favour of complainant assuring her to
repay the amount on or before 20.07.2014.
14. The evidence of CW-03 Branch Manager of Sahebrao
Deshmukh Co-operative Bank Ltd. depicts that the signature of the
accused on the cheque in Hindi language is same as of her signature on
account opening form Exh.49. The cheque Exh.18 belongs to the
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account of accused. The same was dishonoured for the reason ‘Funds
Insufficient’. He has confirmed said fact on the basis of statement of
account of accused maintained with the bank.
15. While going through the cross examination of all witnesses
of the complainant by the accused, it transpires that accused has taken
defence of no transaction of Leave and Licence and giving money on
interest. In short a defence of illegal Money Lending Business. The
advocate for accused submitted that there is no document of Leave and
Licence Agreement to accept the case of the complainant. However,
admittedly, complainant has came with a case of not executing Leave
and Licence Agreement by the accused at all. Therefore, no question
arises to doubt the version of CW-01 and his father in law CW-02 on the
basis of non production of Leave and Licence Agreement.
16. In fact, it is the case of the complainant that in failure of
executing Leave and Licence, renting room, the accused has executed
the further document of Declaration cum Undertaking to refund the
amount of security deposit of Rs.2,10,000/- taken from him. The
accused has denied execution of said document. Now let us see
whether complainant has proved the fact of execution of Declaration
cum Undertaking dated 18.06.2014.
17. The oral evidence of CW-01 and CW-02 who is the witness
to the document of Declaration cum Undertaking Exh.16 has proved
the execution of document by accused in favour of complainant. The
signature of the accused on said document is similar and identical with
her signature on the plea Exh.13, cheque Exh.18, her statement
recorded under section 313 of Code of Criminal Procedure Exh.51.
Secondly, CW-02 was the witness for the execution of said document
Exh.16. The accused has also examined herself, her sister DW-02 Zarina
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who is also witness to said document Exh.16. However, evidence of
accused and DW-02 appears untrustworthy. Man may speak lie but the
documents never. DW-02 being sister of accused, may have deposed out
of love and relations suppressing her signature over the document
Exh.16. The execution of Declaration cum Undertaking is duly proved
by the complainant and CW-02.
18. It is the defence of the accused that complainant is doing
an illegal Money Lending Business through his sister Afsana. She
approached to Afsana for providing loan. Complainant demanded
documents of house, shop, blank cheque and as such accused gave it.
However, to substantiate said defence, the oral evidence of accused,
DW-02 her sister and DW-03 her husband do not appears trustworthy. It
is the case of the accused that complainant did not return her
documents and blank cheque. However, in cross examination
complainant as well as her sister DW-02 and her husband DW-03 have
admitted that they have not taken any legal action against the
complainant for not returning the blank cheque or the documents or
keeping them with him without advancing loan.
19. On the contrary, complainant has produced a copy of Police
Complaint filed by him against the accused on 13.08.2014 at Exh.38.
The same shows that accused and her sister deceived him by obtaining
security deposit of Rs.2,10,000/- for renting room. The same also
shows contents as to execution of Agreement and fact of dishonor of
the cheque. The cheque is dated 21.07.2014. The Declaration cum
Undertaking Exh.16 was executed on 18.06.2014. Considering the
chronology of dates of above three referred documents, there is reason
to believe the oral and documentary evidence of the complainant. His
evidence appears more trustworthy than the oral evidence of DW-01 to
DW-03. The evidence of DW-03 states that he was unaware about the
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alleged act of his wife to approach for borrowing loan. The same also
appears suspicious and indigestible statement made with oblique
motive to suppress true facts.
20. A prudent man would never keep mum and remain silent
years together if such a important document as like of blank signed
cheque is obtained and not returned despite not giving alleged loan.
Except oral evidence of DW-01 to DW-03, the accused has not adduced
any other cogent evidence to believe her contention that complainant is
engaged in illegal money lending business and the transaction was of
money lending.
21. Complainant has duly proved issuance of cheque Exh.18 by
the accused to him. The signature on the cheque is also proved. The act
of accused to execute the Declaration cum Undertaking Exh.16
treating the amount paid to her towards security deposit as hand loan
has falsified her defence. The case of complainant as to making
payment towards security deposit is not shaken during entire cross
examination. Therefore, question crops up why complainant should not
be believed when his evidence is corroborated by documentary
evidence in absence of cogent evidence of the accused on the point of
illegal money lending transaction.
22. Section 139 of Negotiable Instrument Act, 1988 draws a
legal presumption in favour of the holder of the cheque, which states,
“
It shall be presumed, unless the contrary is proved, that the holder of a
cheque received the cheque, of the nature referred to in section 138,
for the discharge, in whole or in part, of any debt or other liability.”
23. In the case of 'Bir Singh V/s.Mukesh Kumar' (2019) 4 SCC
197, Hon'ble Supreme Court held that,
“the presumption u/sec.139 of
the Negotiable Instruments Act is in favour of the complainant. It is the
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statutory presumption. The burden of rebuttal is on the accused. If the
ingredients are proved, the Court is bound to draw the presumption in
favour of the complainant”.
24. The ratio laid down by the Hon’ble Apex Court in catena of
Judgments states that once issuance of cheque is proved, the court has
to consider and follow the presumption of law under section 139 of the
Act in favour of complainant unless the same is rebutted by the
accused. Thereby, the burden shifts upon the accused to rebut the
presumption. In the case in hand the initial presumption which favour
the complainant that the cheque was issued in discharge of debt or
other liability is validly discharged by the complainant. For rebutting
said presumption the accused has measurably failed to adduce cogent
evidence. The defence of the accused do not appears probable and
trustworthy. Therefore, there is reason to believe issuing subject cheque
Exh.18 by the accused to refund the amount obtained for security
deposit and further treated as a hand loan by herself. The subsisting
liability is duly proved. Hence, I answer point No.1 in the affirmative.
AS TO POINT NO.2 :
25. The complainant has produced the cheque return memo
dated 13.09.2014 at Exh.17 which shows that the same was returned
unpaid for the reason ‘Funds Insufficient’ in the account of the accused.
The same is duly proved in the evidence CW-03. Accused has not came
with a defence that on the date of dishonour of cheque she was having
sufficient balance in her account. Question crops up when the cheque
was not issued in discharge of any liability, why accused has not
stopped the payment by giving instructions to her banker. The reason
for dishonour of cheque is duly proved in the evidence of CW-01 and
CW-03. Therefore, in view of presumption under section 146 of the
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Negotiable Instrument Act, I answer the point No.2 in the affirmative.
AS TO POINT NO.3 :
26. Complainant has produced office copy of the demand
notice dated 04.10.2014 at Exh.21. Complainant has also produced the
envelop notice sent by Registered Post to the accused at Exh.22 and 23.
the envelop containing notice returned with postal remark ‘Unclaimed’
by the accused. The accused has not came with a defence of incorrect
address. A General statement is made in defence that she has not
received the notice which has no legal value in the eye of law.
27. In the case of K. Bhaskaran Vs. Shankaran Balan, reported
in 1999, Cr.L.J.4606 and CC Alavi Haji Vs. Palapetty Muhammed and
Anr. reported in 2007(3) Crimes 120(SC) Hon’ble Apex Court has
elaborately discussed the scope of section 27 of General Clauses Act
and 114 of Indian Evidence Act. It has observed that, “Section 27 gives
rise to a presumption that service of notice has been effected when it is
sent to the correct address by Registered Post addressing the drawer of
the cheque.”
28. The mandatory requirement of issue of notice under
section 138 (b) of the Act stands complied as and when the notice is
sent by Registered Post on correct address. Even if it is assumed that
accused has not received the notice, she had an option and opportunity
to pay the cheque amount within 15 days of receipt of summons of the
case. At least she would have taken her whatever stand at earlier stage
of the proceeding. Therefore, in view of presumption under section 27
of General Clauses Act, there is reason to believe the valid service of
demand notice upon the accused. The defence of the accused as to not
receiving the notice is falsified by the documentary evidence of
Registered Post envelop Exh.22 which returned back as unclaimed by
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the accused. Hence, I answer point No.3 in the affirmative.
AS TO POINT NOS.4 AND 5 :
29. For proving the guilt of the accused u/sec.138 of the
Negotiable Instrument Act, first of all the complainant must prove
issuing of cheque in discharge of legal debt or legally enforceable
liability, dishonour of the cheque, issuing statutory notice, filing
complaint within 30 days of accrual of cause of action and legal
authorization to file complaint etc.
30. In the case in hand, the accused has failed to establish her
defence of custody of her cheque with complainant on account of
money lending transaction. She has failed to establish that there was
no transaction in between her and the complainant. She has also failed
to create doubt or bring such suspicious circumstances on record
leading to establish her defence as probable and trustworthy.
31. Complainant has proved that accused had issued the
cheque against the legal liability. The same was dishonored on
presentation with her banker. Despite issuing statutory demand notice,
accused neglected to make the payment which constrained him to file
present complaint. The complaint is also filed within statutory period.
Complainant has proved all the five essential ingredients required to
prove an offence under section 138 of Negotiable Instrument Act
beyond all reasonable doubt. Therefore, it is crystal clear that accused
has committed an offence punishable under section 138 of Negotiable
Instrument Act by not honoring said cheque and making payment
within stipulated period after receiving demand notice. Hence, I answer
point No.4 in the affirmative.
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32. The act of the accused is an offence punishable under
section 138 of The Negotiable Instrument Act. Therefore, the accused is
liable for punishment. The accused is held guilty of committing an
offence punishable under section 138 of The Negotiable Instrument
Act. Hence, I deem fit to hear the accused on the point of sentence.
33. Heard accused on the point of sentence. Accused prayed
for showing leniency in awarding punishment. Heard advocate for
accused. She also prayed for showing leniency.
34. Complainant and his advocate are absent. However, wife of
complainant is present. She submitted that complainant is paralyzed
and she could not bring him in the court. She prayed for awarding
maximum punishment by law.
35. While passing sentence, the court has to see the object of
the Act, effect of the punishment on the entire society. The main object
of the act is to raise faith in the transactions done by way of negotiable
instruments. The amount is utilized by the accused for more than ten
years. Showing leniency will pass a wrong message in the society. It will
encourage the defrauders to use the negotiable instruments as a
protracting tool. Therefore, it would not be just and proper to show
leniency in awarding punishment to the accused. Hence, I pass
following order.
ORDER
1. Accused Rashida Yusuf Khan, Age – 51, Occupation –
Housewife, R/o – Ghatkopar (West), Mumbai, is convicted vide
section 255(2) of The Criminal Procedure Code, for the offence
punishable under section 138 of the Negotiable Instrument Act,
1881 and she is sentenced to undergo simple imprisonment for
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01 (One) year and to pay fine of Rs.4,20,000/- (Rupees Four
Lakhs Twenty Thousand only) in default of payment of fine to
suffer further simple imprisonment of 06(six)months.
2. If fine is paid, the complainant shall be given compensation of
Rs.4,20,000/- (Rupees Four Lakhs Twenty Thousand only), out
of the same u/sec.357(1)(b) of Code of Criminal Procedure.
3. The bail bond of accused stands cancelled.
4. The copy of Judgment be supplied to the accused free of cost.
(Judgment is dictated and pronounced in the open Court).
( M. P. Saraf )
Judicial Magistrate(First Class),
Date : 31.01.2025 58th Court, Bandra, Mumbai.
J.O.Code: MH01362
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CERTIFICATE
I affirm that the contents of this P.D.F. file Judgment are same, word to word as per
the original Judgment.
Name of Stenographer : Mrs.Aditi Ravikiran Dalvi
Court : Judicial Magistrate(First Class), 58th Court,
Bandra, Mumbai.
Dictated in open court on : 31.01.2025.
Transcribed and Typed on : 31.01.2025.
Judgment printed and Signed on : 31.01.2025.
Judgment Uploaded on : 31.01.2025.
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