Final Order 4

Order Details: Copy of Judgment
Pdf Text: Summons Cases SS/1129/2018
Judgment Exh.52
MHMM180066182018
Filed on : 11.06.2018.
Decided on : 20.09.2024.
Duration : 06-Y 03-M 09-D.
IN THE COURT OF JUDICIAL MAGISTRATE (FIRST CLASS),
58TH COURT, BANDRA, MUMBAI.
(Presided over by M. P. Saraf)
Summons Cases SS/1129/2018
(CNR NO.MHMM180066182018)
Exh.52
MOHAN KUMAR ARORA
Through his constituted Attorney
Mr. Shadab Chowdhary
Age : 91 years, Occ. Retired,
R/o. C-5, Padamsee Apartment, 22/29, Union
Park, Khar(W), Mumbai-400 052.
…. Complainant.
Versus
SHYAMSUNDER B. JANGID
Age : 56 years, Occu. Business,
R/o.1402, Polaris, Hiranandani Estate,
Ghodbunder Road, Thane(W)-400 607. also
having his office at Balaji House, Shrushti
Complex, Inside Hiranandani Estate, Patilpada,
G.B.Road, Thane(W), Mumbai-400 607.
…. Accused.
Offence U/sec.138 of the Negotiable Instruments Act, 1881.
Mr. Mahesh Kukreja Advocate for the complainant.
Mr. Pradeep Juwale Advocate for the accused.
JUDGMENT
(Delivered on 20.09.2024)
This is the complaint filed by the constituted attorney of
the complainant under section 138 of The Negotiable Instrument Act
for the reason of dishonor of cheques alleged to be issued against the
repayment of friendly loan given to the accused.
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2. Complainant’s case in nut shell is as follows:
That complainant is a retired senior citizen suffering from
various medical ailments. The constituted attorney is aware of the
transaction taken place in between complainant and accused. He has
authorised him by issuing Power of Attorney dated 22.11.2017. That
accused was conducting business of car trading and allied activities. He
approached to the complainant for friendly loan for a temporary
period. Accordingly, he had given Rs.80 lakhs by cheques to the
accused towards friendly loan. The accused issued four letters cum
undertakings accepting the liability on 21.11.2017 and in discharge of
part liability has issued subject eight cheques. On presenting aforesaid
eight cheques for realization, all the cheques were dishonoured and
returned unpaid for the reasons “Funds Insufficient” on 12.04.2018.
Accordingly, accused was called upon to make the payment vide
demand notice dated 26.04.2018. Accused received the notice on
01.05.2018. He replied the same on 24.05.2018. Accused admitted the
liability but refused to pay the cheques amount on frivolous ground of
Income Tax. Hence, this complaint.
3. My Ld. Predecessor taken cognizance of the complaint and
issued process against the accused under section 138 of Negotiable
Instruments Act. On appearance of accused, the particulars of offence
were stated to him in vernacular to which the accused pleaded not
guilty vide Plea Exh.13 and claimed to be tried.
4. The accused was given opportunity to exercise his right of
cross examination twice but accused failed to conduct cross
examination of the complainant. Thereafter, statement of accused
under section 313 of Code of Criminal Procedure could not be recorded
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as accused remained absent. Therefore, the same was dispensed with
vide order dated 07.05.2024 below Exh.01.
5. Heard, Advocate Mr. Mahesh Kukreja for the complainant.
Perused written notes of arguments filed on behalf of the complainant
at Exh.50. Accused and his advocate failed to lead evidence in rebuttal
as well as advance arguments.
6. To substantiate the contention, complainant has examined
himself at Exh.6, as PW-01. Besides oral evidence complainant has
relied upon Original letters cum undertakings at Exh.18, cheques
Nos.141206 to 141213 at Exh.19 to 26, cheque return memos at
Exh.27 to 34, office copy of the demand notice at Exh.35, Receipt of
Speed post at Exh.36, Speed post A.D.Cards at Exh.37, copies of E-mail
and reply to the demand notice sent by the accused at Exh.38 and
closed evidence.
7. On hearing advocate for complainant following points
arise for my determination to which I have recorded my findings with
reasons thereto as follows-
Sr.No. POINTS FINDINGS
1. Whether it is proved that the accused has
issued subject cheques bearing No.141206
of Rs. 10,00,000/-, No.141207 of Rs.
1,35,000/-, No.141208 of Rs. 10,00,000/-,
Nos.141209 of Rs. 1,57,500/-, No.141210
of Rs. 10,00,000/-, No.141211 of Rs.
1,57,500/-, No.141212 of Rs. 20,00,000/-,
and No.141213 of Rs. 2,70,000/- all dated
28.03.2018, drawn on Yes Bank Ltd. Thane
branch in favour of the complainant in
discharge of the legal debt or liability?
: Yes.
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2. Whether it is proved that cheques in
question were dishonored for the reason
‘Funds Insufficient’? : Yes.
3. Whether it is proved that the accused has
received demand notice dated 26.04.2018,
issued u/sec.138(b) of the Negotiable
Instruments Act sent by the complainant?
: Yes.
4. Whether it is proved that despite service of
demand notice, the accused failed to pay
the cheques 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 as per
final order.
REASONS
AS TO POINT NO.1:-
8. Complainant’s witness that is Constituted Attorney PW-01
has deposed at Exh.6. His evidence has gone unchallenged despite
giving sufficient opportunity to take cross examination by the accused.
His affidavit of evidence is replica of averments made in the complaint.
9. In short his evidence unfolds that he is authorised to
represent 91 years old complainant. The accused was conducting
business of car trading. He was knowing the accused and had friendly
relations. Both had some business dealings and as such the relation
developed between them. After gaining faith accused approached him
to advance friendly loan of Rs.80 lakhs. Accordingly, complainant gave
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Rs.80 lakhs to the accused by account payee cheques through his
personal account. In turn accused had issued subject cheques for
repayment of said friendly loan. It further discloses that accused has
admitted the liability and issued the cheques vide letters cum
undertakings dated 21.11.2017 placed at Exh.18 consolidated. All the
cheques were returned unpaid for the reason ‘Funds Insufficient’ in the
account of the accused. Accused was issued statutory notice dated
26.04.2018 Exh.35. Accused had admitted the liability but refused to
pay the cheques amount on frivolous ground of Income Tax reasons
vide notice reply 07.05.2018 Exh.38. However, accused failed to make
the payment which constrained him to file present case.
10. The contention of complainant that he had paid Rs.80
lakhs to the accused by account payee cheques of his account has
remained unchallenged. The cheques Exh.19 to 26 produced on record
shows that the same are issued by the accused. The signature of the
accused on the cheques and his plea Exh.13 matches with each other.
The next contention of admitting liability by the accused is supported
by documentary evidence of four letters dated 21.11.2017 commonly
marked Exh.18. The signature of the accused on said letters is also
similar and identical with the signatures over disputed cheques at
Exh.19 to 26. Therefore, the complainant has proved issuance of
cheques and signature of accused over the said cheques beyond all
reasonable doubt.
11. Now coming to the aspect of the legal liability. The accused
has acknowledged the liability towards repayment of said friendly loan
by issuing the four letters dated 21.11.2017 placed at Exh.18. The
notice reply given by accused Exh.38 also shows lending money by the
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complainant to the accused. Rest of the contents of notice reply seems
to be drafted cleverly to eschew the legal liability for repayment of said
amount of friendly loan taken from the complainant. The reason for not
honouring the cheques or making repayment is without evidence.
Furthermore, in view of presumption under section 139 and 118(a) of
the Negotiable Instrument Act, there is reason to believe that
complainant has proved the legal aspect of legally enforceable liability
and legal debt towards the accused by way of subject cheques.
12. Complainant has produced the photo copy of the Power of
Attorney issued by the original complainant. The issue of legal
authority to represent the complainant by the PW-01 is not disputed.
On perusal of photo copy of General Power of Attorney dated
22.11.2017 it is crystal clear that PW-01 has powers to represent the
complainant and depose on his behalf. The averments made in the
complaint can be proved either by documentary evidence or oral
evidence of witness or the principal. Therefore, I have no hesitation to
held that complainant has proved the averments made in the complaint
by the oral evidence of PW-01 as well as documentary evidence of
subject cheques, the letters placed at Exh.18.
13. 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.”
14. Section 118(a) of the Negotiable Instrument Act also
draws a presumption in favour of holder of the Negotiable Instrument.
It states that,
“Until the contrary is proved, that every negotiable
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instrument was made or drawn for consideration, and that every such
instrument, when it has been accepted, indorsed, negotiated or
transferred, was accepted, indorsed, negotiated or transferred for
consideration.”
15. The complainant has proved his case of legal liability
against the accused. Therefore, complainant has proved that subject
cheques are issued by the accused against repayment of part amount of
said friendly loan. The presumptions of law are not rebutted by putting
valid probable defence by the accused. Accused has not raised the
defence of an illegal money lending business by way of foundation
made vide notice reply Exh.38. Therefore, even if it is assumed that
accused has given post dated cheques, the same are valid considering
existence of legally enforceable liability on the date of cheques against
the accused. Hence, I answer the point No.1 in the affirmative.
AS TO POINT NO.2 :
16. The complainant has produced the cheque return memos
at Exh.27 to 34. The bank slips or reason for dishonour of the cheques
is not disputed. In view of presumption under section 146 of the
Negotiable Instrument Act, I answer the point No.2 in the affirmative.
AS TO POINT NO.3 :
17. Complainant has produced office copy of the demand
notice dated 26.04.2018 at Exh.35 alongwith postal receipts Exh.36,
Acknowledgment at Exh.37. The accused has replied the demand
notice vide notice reply dated 07.05.2018 Exh.38. The point of
receiving statutory notice by the accused is not in dispute. Therefore, it
will have to be held that accused was duly served with the demand
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notice under section 138(b) by the complainant. Hence, I answer point
No.3 in the affirmative.
AS TO POINT NOS.4 AND 5 :
18. For proving the guilt of the accused u/sec.138 of the
Negotiable Instrument Act, first of all the complainant must prove
existence of legal liability or debt, issuing of cheques in discharge of
legal debt or legally enforceable liability, dishonour of the cheques,
issuing statutory notice etc. The accused would not have issued subject
cheques if he was not liable to make repayment of amount of friendly
loan given by the complainant. The reason given in notice reply is
without evidence and baseless.
19. The complainant has proved the existence of legal liability
on the date of cheques. The cheques were dishonored for the reason
‘Funds Insufficient’. The demand by statutory notice and filing
complaint within statutory period is also proved. There is no specific
trustworthy defence raised on behalf of accused. Therefore, it is crystal
clear that accused has committed an offence punishable under section
138 of Negotiable Instrument Act by not honoring said cheques and
making payment within stipulated period after receiving demand
notice. The complainant has proved all the five essential ingredients to
attract criminal liability under section 138 of Negotiable Instrument Act
against the accused beyond all reasonable doubts. Hence, I answer
point No.4 in the affirmative.
20. 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 the offence
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punishable under section 138 of The Negotiable Instrument Act.
21. Complainant and advocate present. Accused absent. His
advocate also absent. Exemption application given on behalf of the
accused rejected. Heard advocate for complainant on the point of
sentence. Both submitted to pass appropriate order.
22. 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. All the contentions of the accused are without evidence.
The accused is liable to make payment of Rs.57,20,000/- as claimed
against disputed cheques to the complainant towards friendly loan. The
amount is utilized by the accused for more than six years. The accused
has deliberately protracted the litigation since year 2018. The same
has compelled this court to deliver Judgment in absence of accused for
doing justice with the senior citizen complainant and follow the
mandate of law to conclude the hearing of the case within six months.
On reposing confidence and faith upon him he had given friendly loan
to the accused. Showing leniency would encourage the defrauders to
use the negotiable instruments as a protracting tool. Hence, I pass
following order.
ORDER
1. Accused Shyamsunder B. Jangid, Age : 56 years, Occu.
Business, R/o.1402, Polaris, Hiranandani Estate, Ghodbunder
Road, Thane(W)-400 607, is hereby convicted vide section
255(2) r/w. section 353(6) of The Criminal Procedure Code, for
the offence punishable under section 138 of the Negotiable
Instrument Act, 1881 and he is sentenced to undergo simple
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imprisonment for 01 (One) year and to pay fine of
Rs.1,14,40,000/- (Rupees One Crore Fourteen Lakhs Forty
Thousand only), in default of payment of fine shall suffer
further simple imprisonment for further 6 (Six) months.
2. If fine is paid by the accused, the complainant shall be given
compensation of Rs.1,14,40,000/- (Rupees One Crore Fourteen
Lakhs Forty Thousand only) out of the same u/sec.357(1)(b) of
Code of Criminal Procedure.
3. The bail bonds of accused stands cancelled.
4. Issue warrant for arrest u/sec.418(2) of Code of Criminal
Procedure against the accused for the purpose of forwarding the
accused to the jail.
5. The copy of Judgment be supplied to the accused free of cost as
and when arrested and brought before this Court.
(Judgment is dictated and pronounced in the open Court).
( M. P. Saraf )
Judicial Magistrate, First Class,
Date : 20.09.2024 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 : 20.09.2024.
Transcribed and Typed on : 20.09.2024.
Judgment printed and Signed on : 20.09.2024.
Judgment Uploaded on : 20.09.2024.
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