Final Order 1

Order Details: Copy of Judgment
Pdf Text: Summons Cases SS/608/2018
Judgment Exh.18
MHMM180066402018
Filed On : 28.03.2018
Decided on : 23.11.2024.
Duration : 06-Y 07-M 26-D.
IN THE COURT OF JUDICIAL MAGISTRATE(FIRST CLASS),
58TH COURT, BANDRA, MUMBAI.
(Presided over by M. P. Saraf)
Summons Cases SS/608/2018
(CNR NO.MHMM180066402018)
Exh.18
Smt.Sonali Jagdish Sharma
Age : 35 years, Occ. Business,
R/o. 27 Shastri Nagar, Plot No.1, D.R.Varaskar
Marg, Near Bandra Bus Depot, Bandra(W),
Mumbai-400051.
…. Complainant.
Versus
Sherunnissa Mustakim Khan
Age : 51 years, Occ. Business,
R/o. 203 C, Site Apartment, Narayan Dayabhai
Amarsi Marg, Bazzar Road, Bandra(W),
Mumbai-400 050.
…. Accused.
Offence U/sec.138 of the Negotiable Instruments Act, 1881.
Mr. S.K. Pandey Advocate for the complainant.
Mr. Arvind Kumar Tiwari Advocate for the accused.
JUDGMENT
(Delivered on 23.11.2024)
This is the complaint filed under section 138 of The
Negotiable Instrument Act for the reason of dishonor of cheque alleged
to be issued against the refund of friendly loan paid by the complainant
to the accused for the period of six months.
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2. The case of the complainant in nut shell is that –
Both had good relations and reside in same vicinity.
Complainant is running a Sweat Mart. In the month of January 2017
accused requested her to give a sum of Rs.1.50 lakhs as a friendly loan.
On her request she paid Rs.1.50 lakhs in cash to the accused as a
friendly loan to be repaid within 6 months. Accused issued her cheque
of Rs.1 lakh and subject cheque of Rs.50,000/- against the repayment
of the loan. Both cheques were dishonoured and returned unpaid.
3. On depositing the subject cheque worth Rs.50,000/- for
realization in her bank account maintained with Bank of India, Bandra
(W) branch, Mumbai, the same returned unpaid with cheque return
memo dated 29.01.2018 with remark ‘Funds Insufficient’. Thereafter,
complainant issued statutory notice to the accused on 22.02.2018. The
same was received by the accused on 23.02.2018 but accused neglected
to comply the notice. Hence, this complaint.
4. 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.9 and claimed to be tried. The case was tried as
summons trial.
5. The statement of accused under section 313 of Code of
Criminal Procedure was recorded. The accused has taken defence of
giving the two cheques by her husband to the complainant prior to
sever years. She had denied any legal liability to pay the cheque
amount and taken defence of filling false case out of some relations of
her husband with the complainant and her dispute with her husband.
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6. Heard advocate Mr. S.K. Pandey for the complainant and
advocate Mr. Arvind Kumar Tiwari for the accused.
7. On hearing both sides, 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 cheque bearing No.183841
dated 22.11.2017 for Rs.50,000/- drawn on
The NKGSB Bank Ltd. Mahim, Mumbai
branch in favour of the complainant in
discharge of the legally enforceable debt or
other liability to repay the amount of friendly
loan?
: Yes.
2. Whether it is proved that cheque in question
was dishonored for the reason ‘Funds
Insufficient’? : Yes.
3. Whether it is proved that the accused has
received statutory demand notice 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
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.
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REASONS
8. In support of averments made in the complaint,
complainant has examined himself as PW-01 at Exh.05. Besides oral
evidence she has relied upon the cheque bearing No.183841 dated
22.11.2017 at Exh.10, cheque return memo dated 29.01.2018 at
Exh.11, office copy of demand notice dated 20.02.2018 at Exh.12,
postal receipt at Exh.13, Postal Track Consignment Report at Exh.14
and closed evidence. Accused has not adduced evidence.
AS TO POINT NO.1:-
9. The oral evidence of complainant unfolds that she had
paid Rs.1.50 lakhs to the accused in the month of January 2017. She is
doing business of caterers. The amount was given to the accused at her
home in presence of husband of the accused. Her evidence further
discloses giving the subject cheque worth Rs.50,000/- after dishonour
of earlier cheque of Rs.1 lakh issued on 02.09.2017 by the accused. It
indicates that the same was presented for realization with her banker
that is Bank of India, Bandra (W) branch, Mumbai but returned unpaid
with remark, ‘Funds Insufficient’ on 29.01.2018 alongwith the cheque
dishonor memo Exh.11. Thereafter, she called upon the accused to pay
the cheque amount by issuing statutory demand notice Exh.12 on
20.02.2018. The accused received said notice on 23.02.2018 but
neglected to make payment which compelled her to file complaint.
10. The accused has not denied giving subject cheque. The
accused has not denied the transaction. On the contrary from the
evidence in cross examination it indicates that accused had issued
earlier cheque of Rs.1 lakh on 02.09.2017 which was also dishonoured.
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One thing is quite clear that both parties are residing in same vicinity
having goods relations. Therefore, there is reason to believe the
friendly loan transaction of Rs.1,50,000/-.
11. The complainant is holder in due course of the cheque
Exh.10 which bears signature of the accused. The signature of the
accused matches with her signature on the plea Exh.9. Both signatures
are similar and identical. There is no specific defence of not issuing
subject cheque reflected from the cross examination of the
complainant. On the contrary the accused has stated in her statement
recorded under section 313 of Code of Criminal Procedure that the
cheque was issued by her husband to the complainant. Complainant’s
oral evidence depicts that the husband of the accused was present at
the time of alleged transaction. Therefore, considering the presumption
of law under section 139 and 118(a) of the Act, there is reason to
believe that accused has issued subject cheque in discharge of legally
enforceable debt or other liability of repayment of friendly loan
amount. The accused has failed to rebut the presumption of law either
in cross examination of the complainant or by leading independent
evidence. Nothing could be brought on record to suspect the testimony
of complainant as untrustworthy.
12. In view of observations of Hon'ble Supreme Court in the
case of
Bir Singh Vs.Mukesh Kumar, reported in (2019)4 SCC 197,
“
Section 139 mandates that unless the contrary proved, it is to be
presumed 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. However, the presumption is rebuttable by
proving to the contrary. Section 139 introduces an exception to the
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general rule as to the burden of proof and shifts the onus on the
accused to prove by cogent evidence that there was no legal debt or
liability. Mere denial or rebuttal by the accused was not enough.”
13. In the case of
Shripati Singh (Since deceased) through his
son Gaurav Singh Vs. The State of Zarkhand and another, reported in
2021, SCC online SC page No.1002, Hon'ble Supreme Court has held
that, “
A cheque issued as security pursuant to a financial transaction
can not be considered as a worthless piece of paper under every
circumstances. Security in its true sense is the state of being safe and
the security given for loan is something given as a pledge of payment.
It is given, deposited or pledged to make certain the fulfillment of an
obligation to which the parties to the transaction are bound. If in a
transaction, a loan is advanced and the borrower agrees to repay the
amount in a specified time frame and issues a cheque as security to
secure repayment; if the loan amount is not prepaid in any other form
before the due date or if there is no other understanding or agreement
between the parties to defer the payment of amount, the cheque which
is issued as security would matured for presentation and the drawee of
the cheque would be entitled to present the same. On such
presentation, if the same is dishonored, the consequences
contemplated under section 138 and the other provisions of N.I. Act
would flow.”
14. Therefore, in view of law laid down by the Apex Court in
above two Judgments, a cheque holds a legal and substantial value. It
is not a mere piece of paper. There is reason to believe the transaction
in between complainant and accused. Any transaction made by way of
negotiable Instrument is legal and valid unless it is proved that the
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cheque was not issued in discharge of legal liability or otherwise.
Hence, I answer the point No.1 in the affirmative.
AS TO POINT NO.2 :
15. The complainant has produced the cheque return memo at
Exh.11. The cheque return memo also shows reason for dishonour of
the cheque for the reason, ‘Funds Insufficient’ in the account of the
accused. The accused has not came with a defence of having sufficient
balance on the date of cheque in his account. Further, the reason of
dishonour of cheque is not seriously disputed in cross examination.
Therefore, 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 :
16. Complainant has produced office copy of the demand
notice dated 20.02.2018 at Exh.12. He has filed postal receipt at
Exh.13 and Postal Track Consignment Report at Exh.14. The postal
Track consignment report shows that article that is the notice sent by
registered post vide postal receipt Exh.13 dated 22.02.2018 having
consignment No.RM109438105IN was delivered to the addressee on
23.02.2018. Therefore, there is reason to believe the oral evidence of
the complainant that she had posted the statutory notice Exh.12 by
registered post to the accused vide postal receipt Exh.13. The accused
has not disputed the correctness of the address mentioned in the
notice. 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. Hence, I answer point No.3 in the affirmative.
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AS TO POINT NOS.4 AND 5 :
17. For proving the guilt of the accused u/sec.138 of the
Negotiable Instrument Act, first of all the complainant must prove
existence of legally enforceable debt or other liability, issuing of cheque
in discharge of such legally enforceable debt or liability, dishonour of
the cheque, issuing statutory notice within 30 days from the date of
receiving intimation of dishonour of cheque, thereafter, non compliance
of demand within 15 days and further filing the complaint within 30
days from the date of cause of action.
18. Complainant has duly proved the friendly loan transaction.
She has further proved issuing of cheque in discharge of legally
enforceable liability, its dishonor, issuing statutory notice to the accused
etc. The complainant has proved the existence of legal liability on the
date of cheque. 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. 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.
19. 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
punishable under section 138 of The Negotiable Instrument Act.
20. The accused is absent since last so many dates. Therefore,
considering the mandate of law under section 143(3) of the Act, the
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Judgment will have to be delivered in absence of accused taking
recourse to section 353(6) of the Code of Criminal Procedure.
21. 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. In the case of
M/s. New Win Export and another Vs. A.
Subramaniam, Hon’ble Supreme Court has observed that, “
the purpose
of making cheque bounce an offence was to ensure reliability of
cheques, and compensatory aspect of remedy under the Negotiable
Instrument Act, 1881 has priority over the punitive aspect in such
cases.”
22. The cheque is issued against the repayment of friendly loan
given to the accused by the complainant. Therefore, considering the
nature of friendly transaction between parties, it would not be just and
proper to pass order of maximum substantive sentence as envisaged
under section 138 of the Act. Instead of awarding maximum
substantive punishment to the accused, it will be just and proper to
award compensation to the complainant against the amount of the
cheque out of fine. Hence, I pass following order.
ORDER
1. Accused Sherunnissa Mustakim Khan, Age : 51 years, Occ.
Business, R/o. 203 C, Site Apartment, Narayan Dayabhai Amarsi
Marg, Bazzar Road, Bandra(W), Mumbai-400 050., is convicted
vide section 255(2) r/w. 353(6) 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 01 (One) month and to pay fine of
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Rs.1,00,000/- (Rupees One Lakh only) in default of payment of
fine shall suffer further simple imprisonment for 15 (fifteen)days.
2. If fine is paid, the complainant shall be given compensation of
Rs.1,00,000/- (Rupees One Lakhs only), out of the same
u/sec.357(1)(b) of Code of Criminal Procedure.
3. The bail bond 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 her
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 : 23.11.2024 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 : 23.11.2024
Transcribed and Typed on : 23.11.2024
Judgment printed and Signed on : 23.11.2024
Judgment Uploaded on : 23.11.2024
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