Final Order 3

Order Details: Copy of Judgment
Pdf Text: Summons Cases SS/1131/2018
Judgment Exh.30
MHMM180066242018
Filed on : 18.08.2018.
Decided on : 12.06.2024.
Duration : 05-Y 09-M 25 -D.
IN THE COURT OF METROPOLITAN MAGISTRATE,
58TH COURT, BANDRA, MUMBAI.
(Presided over by M. P. Saraf)
Summons Cases SS/1131/2018
(CNR NO.MHMM180066242018)
Exh.30
Mrs. Saeeda Naniyar,
Proprietor of ‘Sai Travels’
Age :45 years, Occ. Business,
R/o. Room No.202, Mashiha Society, 90 ft.
Road, Near Sai Hospital, Dharavi, Mumbai-
400 017.
…. Complainant.
Versus
Mohd. Abid
Proprietor of A.A.Tours & Travels
Age : Adult, Occ. Business,
R/o. Sukhdev Saroj Choudhary, Room No.119,
Kamla Nagar, Jasmin Mill Road, Dharavi,
Mumbai-400 017.
…. Accused.
Offence U/sec.138 of the Negotiable Instruments Act, 1881.
Mr. S. R. Sharma Advocate for the complainant.
Mr. Chandraprakash Yadav. Advocate for the accused.
JUDGMENT
(Delivered on 12.06.2024)
This is the complaint filed under section 138 of The
Negotiable Instrument Act for dishonour of cheque alleged to be issued
against repayment of hand loan by the accused.
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2. The case of the complainant in nut shell is as follows:
That she is the proprietor of Sai Travels running a business
of Tours and Travels. The accused is Proprietor of A.A.Tours & Travels.
Both are common friend of business. In the month of December 2017
accused was in urgent need of money of Rs.5 lakhs for short period.
Therefore, she had provided financial assistance of Rs.5 lakhs to the
accused. She had paid Rs.4 lakhs in cash to the accused on 12.12.2017.
The accused agreed to refound said amount in the month of February
2018 but failed to return the same. However, accused has paid
Rs.26,400/- to her. On 03.04.2018 accused gave subject cheque for
Rs.3,73,600/- in discharge of said legal liability. On depositing said
cheque, the same was returned unpaid vide cheque return memo dated
04.04.2018 for the reason ‘Payment Stopped by Drawer’. Secondly, she
had issued demand notice dated 25.04.2018 calling upon the accused
to pay the cheque amount. Said notice was sent to the accused by
registered post on 28.04.2018. Accused had received demand notice
on 29.04.2018 but neglected to make payment. Hence, this complaint.
3. My Ld. Predecessor has 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. The accused pleaded not guilty vide
plea Exh.10 and claimed to be tried.
4. The case was tried as a summons trial. Statement of
accused was recorded at Exh.26. The accused denied taking friendly
loan of Rs.4 lakhs. According to him he had taken only Rs.21,000/-
which was repaid by him. In short accused has taken defence of no
legal liability and giving blank signed cheque.
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5. Heard, advocate Mr. S.R.Sharma for the complainant and
Advocate Mr. Chandraprakash Yadav for the accused. Perused written
notes of arguments filed by both parties.
6. In order to prove averments made in the complaint, the
complainant has examined herself at Exh.5. Besides oral evidence she
has relied upon Cheque at Exh.12, cheque return memo at Exh.13,
office copy of demand Notice dated 25.04.2018 at Exh.14, Postal
acknowledgment card at Exh.16. The accused has not entered into
witness box or adduced evidence.
7. Following points arise for my determination to which I
have recorded my findings with reasons thereto as follows-
Sr. No. POINTS FINDINGS
1. Is it proved that the accused has issued subject
cheque bearing No.000116 dated 03.04.2018
for Rs.3,73,600/- drawn on J & K Bank,
Mahim(W) branch, Mumbai-400 016, in favour
of the complainant in discharge of the legal
debt or liability?
: No.
2. Is it proved that cheque in question was
dishonored for the reason ‘Payment Stopped by
Drawer’?
: No.
3. Is it proved that the accused has received
demand notice dated 25.04.2018 issued
u/sec.138(b) of the Negotiable Instruments
Act?
: Yes.
4. Is it 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 the
offence punishable under section 138 of the
Negotiable Instruments Act?
: No.
5. What order? : Accused is
acquitted.
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REASONS
AS TO POINT NO.1:-
8. It is the case of the complainant that accused was in urgent
need of Rs.5 lakhs. Therefore, on 12.12.2017 she had paid Rs.4 lakhs
in cash to the accused and accused has issued subject cheque in
discharge of said legal liability. Per contra accused has taken defence of
no legal liability and issuing blank signed cheque for earlier smaller
transaction of Rs.21,000/- and misuse of the same.
9. Evidence of PW-01 unfolds that she is running a Tours and
Travels business. Accused was her business friend. Therefore, she had
provided final assistance of Rs.4 lakhs to him. Out of said amount
accused refunded an amount of Rs.26,400/- to her and given subject
cheque towards remaining outstanding amount.
10. Her evidence in cross examination depicts that she had
obtained blank cheque towards security at the time of giving
Rs.21,000/- on 07.03.2017 from the accused. She has also admitted
returning amount of Rs.26,400/- by the accused. She had not obtained
acknowledgment or receipt of giving Rs.4 lakhs to the accused. Her
statement on the point of possessing amount of Rs.4 lakhs in cash for
giving to the accused appears self contradictory. She stated that she had
not taken money from any other person for giving the same to the
accused but her para No.2 of Examination in Chief indicates that she
had taken money by her associate for giving it to the accused.
11. In complaint, she had averred taking some money from her
associate for giving it to the accused. On the contrary, the statement
makes her evidence untrustworthy on the point of possessing said
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amount of Rs.4 lakhs with her and further act of giving it to the
accused towards final assistance. Secondly, even though both are
business friends, nobody will give such a big amount without executing
any agreement or acknowledgment or receipt.
12. Her evidence depicts that there was earlier money
transaction in between complainant and accused. In consonance to said
transaction she admitted obtaining blank signed cheque from the
accused at the time of giving only amount of Rs.21,000/-. If she is
obtaining blank signed cheque of such a meager amount, why she
should be believed for giving cash of Rs.4 lakhs without obtaining any
document only out of friendship. On the contrary there is sufficient
room to draw an inference that she had misused the earlier blank
signed cheque with her by putting the amount and rest of the contents.
13. If cheque Exh.12 is seen, it shows that the amount of
cheque in figures is written in different ink than the ink of the rest of
the contents of the cheque. Therefore, there is reason to believe the
defence of the accused which states giving blank signed cheque at the
time of earlier transaction of Rs.21,000/-. No doubt section 20 of the
Act empowers the holder in due course of the cheque to believe
inchoate negotiable instrument but that does not give any right to put
any amount which is not agreed in between parties. Therefore, the
difference in hand writing as to the name and amount and figure put
on cheque Exh.12 is sufficient for drawing inference of material
alterations rendering the cheque void under section 87 of the Act.
14. Complainant has not examined any other witnesses to
corroborate her version. In fact, the testimony of the complainant on
the point of possessing such amount with her for giving it to the
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accused and resultant aspect of issuing subject cheque by the accused
in discharge of said liability does not appears trustworthy. Her evidence
to that effect appears insufficient for drawing a firm conclusion.
15. Mere existence of the cheque Exh.12 is not sufficient to
draw inference that subject cheque was given for consideration. In
absence of cogent proof of making payment of Rs.4 lakhs in cash or
kind to the accused, there would not be existence of any legal debt or
legally enforceable liability on the part of accused. Complainant has
failed to prove alleged friendly hand loan transaction coupled with
existence of legal debt and enforceable liability on the part of the
accused on the date of the cheque.
16. Advocate for complainant submitted that she is holder in
due course of negotiable instrument. Once the acc used admitted
signing and issuing cheque, the presumption under section 139 and
118(a) would follow in favour of the complainant.
17. 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.”
18. 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
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.”
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19. Needless to state that the presumptions of law under both
sections are rebuttable presumption. The accused has to rebut the
presumption by either examining himself or witness or seeking
admissions in the evidence of the complainant or bringing such
suspicious circumstances on record which would make his defence
probable and trustworthy.
20. The presumption under above referred both sections are
rebuttable presumption. The reverse burden theory shifts the onus of
proof upon the accused for that purpose accused has to examine
himself or any witness or he may seeking admissions in the cross
examination of the complainant so as to make his defence proper on
creating suspicious circumstances. Herein in the case in hand accused
has obtained admission in the cross examination of the complainant on
the point of earlier transaction of Rs.21,000/- in between complainant
and accused, obtaining blank signed cheque from him at that time.
Herein the case, the accused has rebutted said lawful presumptions
under section 139 and 118(a) of Negotiable Instrument Act by getting
admissions in the cross examination of the complainant as well as
bringing the suspicious circumstances on the record. Thereby his
defence of misuse of blank signed cheque obtained at previous
transaction appears probable and trustworthy.
21. So also, oral evidence of the complainant is not satisfactory
and trustworthy to except her contention of giving cash amount of Rs.4
lakhs to the accused. The probability of misuse of blank signed cheque
of the accused with the complainant is clearly established from the
admissions in cross examination of the complainant. The accused has
succeeded to establish doubt on the truthfulness of the complainant
and thereby had rebutted the presumption of law under section 139
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and 118(a). The burden of proving said transaction coupled with fact
of giving such a huge amount in cash to the accused was again shifted
on the complainant in which she has failed to discharge said burden by
adducing further cogent evidence. Therefore, there is reason to believe
that subject cheque is misused, by material alteration rendering it void.
There is sufficient reason for drawing an inference that said cheque was
not given in discharge of any legally enforceable liability but it was
obtained towards security for earlier hand loan transaction. Hence, I
answer the point No.1 in the negative.
AS TO POINT NO.2 :-
22. Complainant has produced photo copy of the cheque
return memo at Exh.13 but has not examined bank witness to prove the
reason of dishonour, signature of the accused on the cheque. The
presumption under section 146 of the Act applies only in the case of
bank slip which bears seal of the bank and signature of issuing
authority. Therefore, in absence of primary evidence, I answer the
point No.2 in the negative.
AS TO POINT NO.3 :-
23. Complainant has produced photo copy of the demand
notice dated 25.04.2012 sent under section 138 (b) of the Act to the
accused. The accused has not denied receiving the notice. Needless to
state that accused has not replied the demand notice but that will not
take place of proof of existence of legal liability against the accused.
Even though accused has not replied the notice, he has succeeded in
bringing suspicious circumstances on record in the cross examination of
the complainant. Receipt of notice is not in dispute. Hence, I answer
point No.3 in the affirmative.
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AS TO POINT NO.4 :-
24. For proving the guilt of the accused under section 138 of
the Act, the complainant has to prove existence of legal debt or
enforceable liability towards the accused. The complainant has failed to
prove existence of legal debt or enforceable liability to pay the cheque
amount against alleged unproved friendly loan transactions of Rs.4
lakhs. Therefore, even though accused has not replied notice, he can
not said to have committed any offence as conferred under section 138
of Negotiable Instrument Act. For proving the guilt under section 138,
the complainant has to prove all the 5 essential ingredients. The
defence of accused as to misuse of the blank signed cheque by the
complainant appears trustworthy and probable one. Complainant has
failed to prove the contents of complaint giving rise to criminal liability
of accused beyond all reasonable doubts. Hence, I answer point No.4 in
the nagative and pass following order.
ORDER
1. The accused is acquitted of the offence punishable under
section 138 of the Negotiable Instruments Act, 1881 vide
section 255(1) of The Criminal Procedure Code.
2. Bail bonds of accused stands cancelled.
3. The accused to comply sec.437(A) of Cr.P.C. and furnish
surety for further period of six months from today.
(Judgment dictated and pronounced in open Court).
( M. P. Saraf )
Metropolitan Magistrate,
Date : 12.06.2024 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 : Metropolitan Magistrate, 58th Court, Bandra,
Mumbai.
Dictated in open court on : 12.06.2024.
Transcribed and Typed on : 12.06.2024.
Judgment printed and Signed on : 12.06.2024.
Judgment Uploaded on : 12.06.2024.
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