Final Order 1

Order Details: Copy of Judgment
Pdf Text: C.C.No.1132/SS/2018
Judgment Exh.36
MHMM180066582018
Filed on : 11.06.2018.
Decided on : 28.07.2023.
Duration : 05Y 01M 17D.
IN THE COURT OF METROPOLITAN MAGISTRATE,
58TH COURT, BANDRA, MUMBAI.
(Presided over by M. P. Saraf)
Particulars of offence: Exh.36
A. The serial number of the
case
: C.C. No.1132/SS/2018
(CNR NO.MHMM180066582018)
B. The date of commission of
the offence
: 14.05.2018
C. The name of the
complainant (if any)
: Kalburgi Cement Private Limited,
A company registered under the
Companies Act, 1956, having its
registered office at H. No.82626,
Reliance Majestic, Road No.11,
Banjara Hills, Hyderabad400 034
and Mumbai office at Kanakia
Atrium 2, Unit No.805, 8th Floor,
Next to 215 Atrium, behind
Courtyard Marriot, Andheri Kurla
Complex, Andheri (E), Mumbai
400 093 Represented by its
authorised person Mr. Piyush
Damania.
D. The names of the accused
persons, and their
parentage and residence
: 1) M/s.Neev Infrastructure Pvt.
Ltd.,
A company registered under The
Indian Companies Act, 2013
having its registered office address
-- 1 of 10 --
2 C.C.No.1132/SS/2018
Judgment Exh.36
at Neev Vittoria, Nesbit Road, Next
to Mazgaon Sales Tax Office,
Mazgaon, Mumbai – 400 010.
2) Mr.Jitendra Chandulal Jain
Director M/s. M/s.Neev
Infrastructure Pvt. Ltd.,
3) Mr.Hemal Surendra Jain,
Director M/s. M/s.Neev
Infrastructure Pvt. Ltd.,(Process
not issued)
4)Mr.Pradeep Laxmichand Jain
Director M/s. M/s.Neev
Infrastructure Pvt. Ltd.,
Accused No.2 and 4 R/o. 21
Kalpatru CHS, 2nd Floor, Seth Moti
Shah Lane, (Lovelane), Byculla
(E), Mumbai400 010.
E. The offence complained of
or proved
: U/sec.138 of the Negotiable
Instrument Act, 1881.
F. The plea of the accused
and their examination (if
any)
: The accused pleaded not guilty.
G. The final order : The accused are acquitted.
H. The date of such order : 28.07.2023.
Mr. Satyendra Sharma : Ld. advocate for the complainant.
Mr. Chetan Pawar : Ld. advocate for the accused.
J U D G M E N T
( Delivered on 28.07.2023)
1. This is a complaint filed u/sec.138 of The Negotiable
-- 2 of 10 --
3 C.C.No.1132/SS/2018
Judgment Exh.36
Instrument Act against the accused. The case of the complainant in nut
shell is that the complainant company has supplied cement bags worth
Rs.4,96,540/ to accused No.1 construction company at the instance of
its directors accused No.2 to 4. The accused gave disputed cheque
dated 22.03.2018 towards payment of the goods supplied to them.
The cheque was dishonoured for the reason of 'Payment Stopped by
Drawer'. The complainant issued demand notices on 24.04.2018.
However, the accused neglected to pay the cheque amount. Hence, this
complaint.
2. The accused had denied supply of cement bags. The
accused have taken defence of issuing cheque as a security of the
business transaction and not for discharging the legal liability.
According to them the complainant has misused said cheque with
them. Secondly, the accused have taken defence that the complainant
has no legal authority to file complaint against them. Therefore,
complaint is not maintainable. Accordingly, prayed for dismissal of the
complaint and their acquittal.
3. The complainant has examined himself in support of his
contentions at Exh.05. Besides oral evidence, complainant has relied
upon authority letter at Exh.18, invoices at Exh.19 to 22, cheque
Exh.23, cheque return memo at Exh.24, copy of demand notice at
Exh.25, postal receipts at Exh.26 to 29, postal acknowledgments at
Exh.31 to 33 and envelop returned unclaimed at Exh.30. The accused
has neither laid oral evidence nor produced any documentary evidence.
4. Heard, Advocate Mr. Satyendra Sharma for the
complainant and advocate Mr. Chetan Pawar for the accused.
-- 3 of 10 --
4 C.C.No.1132/SS/2018
Judgment Exh.36
5. 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 have issued
disputed cheque bearing No.190537 of
Rs.4,96,540/ dated 22.03.2018 drawn
on Vijaya Bank, Vile Parle West Branch,
Mumbai, in favour of the complainant to
discharge 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 received
demand notice issued u/sec.138 of the
Negotiable Instruments Act?
: Yes.
4. Is it proved that despite service of
demand notice, the accused failed to pay
the cheque amount and thereby
committed the offence punishable under
section 138 of the Negotiable Instruments
Act?
: No.
5. What order? : Accused are
acquitted as per
final order.
-- 4 of 10 --
5 C.C.No.1132/SS/2018
Judgment Exh.36
REASONS
As to point No.1:
6. The oral evidence of the complainant depicts that the
complainant company is manufacturer of cement. He is duly authorized
by the complainant company vide authority letter dated 10.04.2018
placed at Exh.18. The complainant company has supplied cement to
accused No.1 through M/s.Shagun Trading Company. He had filed the
invoices to that effect. The accused dishonoured the cheque given
against the payment of supply of cement. Hence, he filed complaint.
7. It is the case of the accused that no cement bags as averred
by the complainant in the complaint are received or supplied to them.
The complainant's evidence states that the accused persons had
approached to the company through M/s. Shagun Trading Company
and therefore, they have supplied the cement bags against which the
cheque was issued.
8. The complainant has not examined any competent witness
to prove the invoices filed at Exh.19 to 22. There is no signature of
cement goods receiving party on any of invoices. Further the invoices
are computer print outs taken from the computer which is in control
and possession of complainant company. The complainant has not filed
the required certificate u/sec.65(4)(b) of The Evidence Act to
authenticate the correctness of the entries in the invoices. He has
admitted in cross examination that the same are computer print outs.
In absence of evidence of the author of the documents that is invoices,
complainant's oral evidence can not be believed or accepted as a
conclusive proof of supply of material to the accused company.
-- 5 of 10 --
6 C.C.No.1132/SS/2018
Judgment Exh.36
Therefore, the documentary evidence of invoices placed at Exh.19 to 22
are of no use to substantiate the contention of the complainant.
9. The accused have taken defence of no legal authority to
represent the complainant company by the complainant. So far as this
legal aspect is concerned, I have perused the authority letter Exh.18
given in the name of complainant Mr. Piyush Damania, Asstt. Manager
of complainant company. The same seems to be issued by one
Mr.Manish Sharma, V.P.Marketing. The same is neither a resolution of
Board of Directors nor it bears the round seal of the company or any of
its directors. The complainant has admitted in cross examination that
the complainant company takes decisions by passing resolution in
Board Meeting. The complainant has not filed such resolution passed
by the Board of Directors authorizing him to issue the demand notice
and present the complaint or to depose on behalf of the complainant
company. There is nothing on record to show that V.P.Marketing has
absolute authority or powers to empower the complainant to file the
complaint and depose in the matter.
10. It is the contention of the complainant that the accused
persons have issued the cheque in discharge of their legal liability to
pay the outstanding amount of material supplied to them. So far as
offence u/sec.138 of the Negotiable Instrument Act is concerned, now
it is settled position of law that presumptions u/sec.118 and 139 of the
Negotiable Instrument Act in regards to consideration and existence of
legally enforceable debt or liability is in favour of the complainant.
However, those presumptions of law are rebuttable. The accused has to
rebut these presumptions either by getting admissions in the cross
examination of the complainant's witness, by relying upon material
-- 6 of 10 --
7 C.C.No.1132/SS/2018
Judgment Exh.36
placed on record by the complainant or by examining himself in
defence. If accused succeeds to rebut the presumptions, the onus of
burden of proof shifts on the complainant to prove the existence of
legally enforceable debt or legal liability.
11. In present case, the accused has rebutted the presumption
in favour of the complainant through getting the admissions in cross
examination of the complainant on the point of practice of passing of
Board Resolutions in Board Meeting, disputing the invoices placed on
record. The oral evidence of the complainant on the point of legal
authority to present complaint, invoices to prove delivery of material
appears insufficient and untrustworthy. The complainant has failed to
prove the legal aspect of supply of material as per the invoices resulting
into casting legal liability to pay the cheque amount. Therefore, mere
possession of cheque and its dishonour would not be sufficient to
accept the case of the complainant. The evidence on record makes the
defence of the accused probable and trustworthy. The accused has not
denied that there was no transaction at all. Therefore, there is reason to
believe his defence that said cheque Exh.23 was not issued towards the
discharge of legal debts and the same was given for a security of
business transaction in between the complainant and the accused.
12. The advocate for the accused submitted that the
complainant has not proved the authority to file his case. He has relied
upon judgment in the case of Candy Sprit Pvt. Ltd Vs. Reeves Mia
and ors. (2012) ALL MR (Cri) 403. It is held by Hon'ble Apex Court
that, “the representative of the company has to prove his authorization.
There can not be no conviction without such proof.” As discussed
above there is no Board Resolution authorizing complainant to present
-- 7 of 10 --
8 C.C.No.1132/SS/2018
Judgment Exh.36
the complaint on record. The authority letter do not bears seal of the
company or any of director. There is nothing to accept conferring
powers upon the V.P.Marketing to give such authority nor complainant
has examined said V.P.Marketing. Therefore, there is reason to believe
that the complaint filed without legal authorization is not maintainable
in the eyes of law. Want of authority of a person is not a mere
irregularity but a fundamental defect which makes the complaint itself
non maintainable u/sec.142 (A) of the Negotiable Instrument Act.
13. With a blame of repetition, the complainant has failed to
prove his legal authority to present the complaint. Secondly,
complainant has failed to prove receipt of material as per the
inadmissible invoices placed on record. In absence of legal proof as to
delivery of cement bags to the accused, it can not be inferred that the
cheque in question was issued to discharge the legal liability to pay the
prices of material to the complainant. In fact in absence of cogent and
convincing evidence, it can not be said that there was legal debt on the
part of accused to honour the cheque. Further in absence of legal
authority to present complaint, the complaint is not maintainable.
Hence, this court hold that the cheque in question was not issued to
discharge legally enforceable debt or legal liability to pay. Hence, I
answer to point No.1 in the negative.
As to Point Nos.2 :
14. The complainant has filed the cheque return memo at
Exh.24. The same bears only seal of PNB Paribus. There is no
signature over the seal or cheque return memo Exh.24 of concerned
bank employee or the authority who issued the cheque return memo.
Mere reason showing 'Payment Stopped by Drawee' would not be
-- 8 of 10 --
9 C.C.No.1132/SS/2018
Judgment Exh.36
sufficient to say that the same was returned unpaid for the reason
quoted in the cheque return memo Exh.24. The complainant has not
examined the bank officer to prove the contents of cheque return
memo. Hence, I answer point No.2 in the negative.
As to Point No.3 :
15. The evidence on record shows that the complainant had
sent demand notice Exh.25 to the accused persons by registered post.
The registered post acknowledgments filed at Exh.31 to 33 shows
receiving the notices by the addressee. The envelop Exh.30 which
returned unclaimed by accused No.4 shows that the same was returned
as 'not claimed' by the addressee. The complainant has proved issuing
demand notice to the accused. Therefore, I answer point No.3 in the
affirmative.
As to Point No.4 and 5 :
16. For proving the guilt of the accused persons u/sec.138 of
the Negotiable Instrument Act, first of all the complaint must be
maintainable as per section 142 of the Act. Further complainant must
prove that the cheque was issued in discharge of legal debt or legally
enforceable liability. No doubt the complainant has proved issuing
notice of demand, he has failed to prove the reason of dishonour of
cheque, legal debt and legally enforceable liability of the accused to pay
the cheque amount. For attracting section 138, all its essential
ingredients need to be proved by the complainant. Therefore, accused
are entitled to the acquittal of charges kept against them. Hence, I
answer point No.4 in the negative and pass following order.
-- 9 of 10 --
10 C.C.No.1132/SS/2018
Judgment Exh.36
ORDER
1. The accused are hereby acquitted for the offence punishable
under section 138 of the Negotiable Instruments Act, 1881 in
view of section 255(1) of The Criminal Procedure Code.
2. The bail bonds of the accused are cancelled.
3. The accused to comply sec.437(A) of Cr.P.C.
(Judgment is dictated and pronounced in the open Court).
(M.P.Saraf)
Mumbai, Metropolitan Magistrate,
Date : 28.07.2023. 58th Court, Bandra, Mumbai.
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 : 28.07.2023.
Transcribed and Typed on : 28.07.2023.
Judgment printed and Signed on : 28.07.2023.
Judgment Uploaded on : 28.07.2023.
-- 10 of 10 --