Final Order 3

Order Details: Order Below EX 1
Pdf Text: Summons Cases No.1040/SS/2018
Judgment Exh.36
MHMM180067002018
Filed on :11.05.2018
Registered on :11.05.2018
Decided on :10.06.2025
Duration :07-Y 01-M 00-D
IN THE COURT OF JUDICIAL MAGISTRATE (FIRST CLASS),
58TH COURT, BANDRA, MUMBAI.
(Presided over by M. P. Saraf)
Summons Cases No.1040/SS/2018
(CNR NO.MHMM180067002018)
Exh.36
DEEPAK KAMBLE
Proprietor of D.K.Foods & Agro Enterprises
Age : Adult, having office at Bandra Transist
Camp, 22/169, K.C. Marg, Bandra(W), Mumbai-
400 050, Maharashtra.
…. Complainant.
Versus
1) M/S. VEDANT HYBRID SYSTEMS PVT. LTD.
having address at 634/10A, Shrirang Society,
“Ganeshanand”, Bibvewadi, Pune – 411037.
…. Accused.
2) Mr. Hemant Nandkumar Dhongade
Director,
Age : 56 years, having address at 634/10A,
Shrirang Society, “Ganeshanand”, Bibvewadi,
Pune – 411037.
3) Mrs. Supriya Hemant Dhongade
Director,
Age : 54 years, having address at 634/10A,
Shrirang Society, “Ganeshanand”, Bibvewadi,
Pune – 411037.
Offence U/sec.138 of the Negotiable Instruments Act, 1881.
Mrs. Kalyani K. Nandoskar Advocate for the complainant.
Mr. Rajkiran Jadhav, Mr. Arunkumar
Khedia
Advocate for the accused.
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JUDGMENT
(Delivered on 10.06.2025)
The accused are prosecuted for an offence punishable
under section 138 of Negotiable Instrument Act, 1881 on the basis of
private compliant filed for dishonour of cheque alleged to be issued by
them for repayment of advance amount given for providing a machine.
2. The case of the complainant is as follows:
That he is businessman carry on business in the name of
D.K.Foods and Agro Enterprises. The accused no.1 is a company having
registered office in Mumbai engaged in the business of manufacturing
electrical equipments. The accused no.2 and 3 are its directors, sole
responsible persons for conducting the business of the accused no.1
company. He had to start business of manufacturing and preparing
Alkaline water. Therefore he approached to the accused no.2 and 3 for
purchasing Roufaws 300LPH machine. Accordingly placed purchase
order on 28.09.2017 to the accused persons. He also made payment of
an advance amount of Rs.8,50,000/- to the accused. Accused promised
to deliver the machine by 25.10.2017. However later on failed to
deliver the machine as agreed within time. Therefore complainant
canceled the order and demanded the advance amount. Accordingly
accused issued cheque dated 10.02.2018 to refund said amount. On
depositing said cheque, the same returned unpaid. Thereafter, accused
again issued second cheque dated 20.03.2018 for refund of said
amount. The cheque was also dishonored and returned unpaid with
remark “Payment stopped by drawer” on same day. The accused were
called upon to make payment of the dishonored cheque by issuing
statutory notice dated 05.04.2018 by registered post. The accused
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received said notice on 07.04.2018 but failed to make payment. Hence,
this complaint.
3. My Ld. Predecessor taken cognizance of the complaint and
issued process against the accused no.1 to 3 under section 138 r/w 141
of the Negotiable Instruments Act 1881. On appearance of the accused,
particulars of offence were stated to them in vernacular to which they
pleaded not guilty vide Plea Exh.11 and Exh.27 and claimed to be tried.
The case was tried as summons trial.
4. Statements of accused no. 2 and 3 under section 313 of
Code of Criminal Procedure was recorded at Exh.34. The accused have
taken defence of obtaining both cheques forcefully under threat. They
have also came with defence that the machine was ready for delivery
but complainant had not accepted it. Thereby they have taken defence
of non existence of legal liability to honour the cheque.
5. Heard advocate Mrs. Kalyani K Nandoskar for the
complainant and advocate Mr. Rajkiran Jadhav, Mr. Arunkumar Khedia
for the accused at length.
6. 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 the accused no.2 has drawn disputed
cheque bearing No.000706 dated 20.03.2018 for
an amount of Rs.8,50,000 drawn on HDFC Bank
Limited, Pune Branch on behalf of accused no.1
company in favour of the complainant in discharge
of legally enforceable liability or other debt?
:
Yes.
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2. Whether it is proved that cheque was dishonored
for the reason ‘Payment stopped by drawer’ ? : Yes.
3. Whether it is proved that the accused have
received demand notice dated 05.04.2018, issued
u/sec.138(b) of the 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?
: Yes.
4. Whether it is proved that despite service of
demand notice, the accused no.1 to 3 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
nos.1 and
2 are held
guilty and
convicted.
Accused
no.3 is
acquitted.
REASONS
7. In support of the averments made in the complaint,
complainant has examined himself as PW-01 at Exh.5. Besides oral
evidence complainant has relied upon cheque dated 10.02.2018 at
Exh.13, cheque dishonored memo dated 10.02.2018 at Exh.14,
disputed cheque no. 000706 dated 20.03.2018 at Exh.15, cheque
returned memo dated 20.03.2018 at Exh.16, office copy of demand
notice dated 05.04.2018 at Exh.17, three postal receipts at Exh.18,
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purchase order dated 28.09.2017 at Exh.29 and closed evidence. The
accused have not adduced evidence.
8. Alleged transaction of purchasing Roufaws 300 LPH
machine, making payment of advance amount of Rs. 8,50,000/-, by the
complainant to the accused is not in dispute. Accused have also not
disputed reason for dishonor of the cheques, receiving statutory notice
sent by the complainant.
9. Accused have came with defence of obtaining above
cheques by the complainant forcefully threatening them. Accused has
also came with a case that the machine was ready for delivery but the
complainant refused to accept the same and thereby there is no legal
liability to honor the cheques.
10. In the light of above facts, the only question remains for
consideration whether the cheque in question is issued in discharge of
any legal liability by the accused? Whether there is no legal obligation
on the part of accused to refund the advance amount of Rs.8,50,000/-
to the complainant? Who is at fault in completing the transaction of
purchasing said machine?
AS TO POINT NO.1:-
11. Oral evidence of PW-No.1, Complainant is replica of the
averments made by him in the complaint. His evidence shows that after
placing order to purchase said machine on 28.09.2017, accused have
promised and agreed to deliver said machine by 25.10.2017 that is
within 1 month. It further states that when he visited accused no.1
company on 31.10.2017, the machine was not ready nor accused have
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started manufacturing work of said machine. Therefore, he cancelled
the order and refused to accept the delivery of machine on proposed
date that is 11.11.2018 as informed by the accused.
12. The defence of the accused that machine was ready for
delivery and accordingly they have informed the complainant by email
is without evidence. Accused have not adduced any evidence to believe
their case as to breach of agreement by complainant by cancellation of
order. Nothing could be extracted during the cross examination of
complainant by the accused to substantiate their defence. Complainant
PW no.1 has specifically denied the suggestion given in cross
examination on the point of written intimation given by the accused in
respect of machine ready for delivery.
13. The fact of machine ready for delivery and further
communication with the complainant either by email or other mode is
purely within the special knowledge of accused persons. In absence of
such oral or documentary evidence, the defence by way of bare words
is of no use and legal value in the eyes of law. In view of section 101 of
the Indian Evidence Act 1872, “
Whoever desires any court to give
judgment as to any legal right or liability dependent on ht existence of
facts which he asserts, must prove that those facts exist. When a person
is bound to prove the existence of any fact, it is sad that the burden of
proof lies on that person”. Secondly, in view of section 106 of the
Indian Evidence Act, “
When any act is especially within the knowledge
of any person, the burden of proving that fact is upon him”.
14. First of all there is no evidence to accept said defence of
the accused that machine was ready for delivery and the same was
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communicated to the complainant by email. The burden to prove said
fact was solely upon the accused. The accused have failed to discharge
said burden of proof either by seeking admission in cross examination
of complainant or by leading their own oral or documentary evidence.
15. In the scenario, in absence of any cogent evidence on the
part of accused, the oral and documentary evidence adduced by the
complainant appears more trustworthy to accept his case beyond all
reasonable doubts. Had it been not so, accused would not have issued
the first cheque dated 10.02.2018 and subsequent disputed cheque
dated 20.03.2018. The post conduct of issuing earlier cheque which
was dishonored on 19.09.2018 for the reason of funds insufficient in
the account of accused itself suggest that the accused was not ready
with the machine for delivery and as such gave cheque to refund said
amount of advance received from the complainant.
16. Accused have not replied the statutory notice issued by the
complainant nor filed any documentary evidence to accept their case of
lodging complaint with police. Even though complainant has admitted
filing police complaint by accused against him at Bibvewadi Police
station, the accused are not absolved of their legal responsibility to
brought said documents on record.
17. In absence of any such evidence and or mainly the
evidence of so called email communication, it can not be said that
complainant is at fault and he had committed the breach of contract.
On the contrary the copy of the specification of the machine issued by
the accused clearly speaks about six to eight weeks delivery time in
their own broacher. Therefore, the complainant has legal right to cancel
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the order, when the machine was not ready even after one month of
placing order. Further the legal obligation exist upon the accused
persons to returned back the amount of advance taken against
purchase order on cancellation of deal in absence of any clause of
forfeiture of advance amount.
18. Therefore there is reason to believe that accused no.2 has
issued subject cheque dated 20.03.2018 in place of earlier dishonored
cheque dated 10.08.2018 to the complainant in discharge of legal
liability to refund the amount of advance taken from him. Complainant
has proved existence of legal liability to refund said amount by the
accused by leading cogent oral and documentary evidence. Per contra
the defence of accused as to obtaining the cheques forcefully appears
absolutely untrustworthy. None of the prudent man would keep silence
after such forcible act if any, years together.
19. 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.”
20. Complainant is holder of the negotiable instrument within
the meaning of section 8 of the Negotiable Instrument Act. Accused are
drawer of the subject cheque within the meaning of section 7 of the
Negotiable Instrument Act. In the case of 'Bir Singh V/s.Mukesh Kumar'
(2019) 4 SCC 197, Hon'ble Supreme Court has held that,
“the
presumption u/sec.139 of the Negotiable Instruments Act is in favour
of the complainant. It is the statutory presumption. The burden of
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rebuttal is on the accused. If the ingredients are proved, the Court is
bound to draw the presumption in favour of the complainant”.
21. 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 burden to attract the
presumption which favors the complainant that the cheque was issued
in discharge of legal debt or other liability is validly discharged by the
complainant. The accused has failed to rebut said presumption making
his defence probable. Hence I answer the point no.1 in the affirmative.
AS TO POINT NO.2 :
22. The complainant has produced the cheque dishonor memo
at Exh.16. The cheque dishonor memo of disputed cheque shows
reason for dishonour of the cheque, ‘Payment stopped by drawer’. The
reason of dishonour of cheque is not seriously disputed by the accused
nor accused has came with a case of having sufficient balance on the
date of cheque in his account. Therefore, in view of presumption under
section 146 of the Act, I answer the point No.2 in the affirmative.
AS TO POINT NO.3 :
23. Complainant has produced office copy of the demand
notice dated 05.04.2018 at Exh.17. The accused have not disputed
receiving notice. The demand notice shows legal and valid demand of
the amount of dishonored cheque to be paid within 15 days of receipt
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of notice as contemplated under section 138(b) of the Negotiable
Instruments Act. Hence, I answer point No.3 in the affirmative.
AS TO POINT NOS.4 AND 5 :
24. Drawer of a cheque is deemed to have committed the
offence of cheque dishonor, if the following ingredients are fulfilled:
(i) A cheque is drawn for the payment of any amount of money to
another person;
(ii) The cheque is drawn for the discharge of the ‘whole or part’ of any
debt or other liability, ‘Debt or other liability’ means legally enforceable
debt or other liability; and
(iii) The cheque is returned by the bank unpaid because of insufficient
funds or any other reason.
However, unless the stipulations in the proviso are fulfilled the offence
is not deemed to be committed. The conditions in the proviso are as
follows:
(i) The cheque must be presented in the bank within six months from
the date on which it was drawn or within the period of its validity;
(ii) The holder of the cheque must make a demand for the payment of
the ‘said amount of money’ by giving a notice in writing to the drawer
of the cheque within thirty days from the receipt of the notice from the
bank that the cheque was returned dishonored, and
(iii) The holder of the cheque fails to make the payment of the ‘said
amount of money’ within fifteen days from the receipt of the notice.
25. Complainant has satisfactorily proved all the above
ingredients by leading cogent oral and documentary evidence, beyond
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all reasonable doubt. The defence of accused as to non existence of
legal liability etc. appears baseless and without evidence.
26. Complainant’s evidence states that accused no.2 and 3
both are responsible persons for conducting business of accused no.1 of
which account the cheque is drawn. Evidence shows that accused no.2
has signed and delivered the cheques in question. Complainant has not
brought any evidence to relate the accused no.3 with the
administration of accused no.1 company either as an incharge person
or responsible person for its business and day to day affairs. Therefore
accused no.3 can not be held guilty merely being director of the
accused no.1 company. Hence, I answer point No.4 partly in the
affirmative only against accused no.1 and 2.
27. In absence of any evidence as to the particular role of
accused no.3 in conducting business of accused no.1, she is entitled to
be acquitted of the charge leveled against her.
28. The act of the accused nos.1 and 2 is an offence punishable
under section 138 of The Negotiable Instrument Act. Therefore, the
accused are liable for punishment. The accused nos. 1 and 2 are held
guilty of committing an offence punishable under section 138 of The
Negotiable Instrument Act. Hence, I deem fit to hear the accused no.2
on the point of sentence.
29. Accused no.2 submitted that he is ready to pay the amount
to the complainant if directed by the court. He further stated that he
had paid some amount to the complainant. Heard advocate Mr.
Arunkumar Khedia for the accused. He submitted to show leniency in
awarding punishment. Complainant and his advocate absent.
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30. 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 accused has utilized the amount paid to him as an
advance. He was under legal obligation to repay the amount of advance
after cancellation of order. Utilizing the amount by the accused is
nothing but just enrichment of contract. There is no evidence on record
to show payment of part amount to the complainant. In the facts and
circumstances, showing leniency will pass a wrong message in the
society. It will encourage the defrauders to use the negotiable
instruments as a protracting tool. Nobody would trust making
transaction on the basis of negotiable instruments.
31. In fact, law provides punishment by way of substantive
sentence of imprisonment for a term which may be extended to two
years or with fine which may extend to twice the amount of the cheque
or with both. The plain reading of the provision offers the discretion to
the Magistrate to award punishment by looking into the gravity of the
offence. The substantive sentence is kept for the deterrence in
committing such type of offences again. Intention of legislature
primarily appears towards recovery of amount in transaction to
encourage the commercial transactions with aid of negotiable
instruments. Considering financial status of the accused, it would be
just and proper to award fine double of the amount of the cheque and
show leniency in awarding substantive punishment. It will suffice the
purpose and do justice. Therefore, this court deems fit to exercise the
judicious discretion vested in it while doing justice and pass the
following order.
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Judgment Exh.36
ORDER
1. Accused no.3 Mrs. Supriya Hemant Dhongade is hereby
acquitted of the offence punishable under section 138 r/w 141
of the Negotiable Instrument Act, 1881 vide section 255(1) of
the Criminal Procedure Code and Section 278 (1) of the
Bhartiya Nagarik Suraksha Sanhita, 2023.
2. Accused 1) M/S. VEDANT HYBRID SYSTEMS PVT. LTD., 2) Mr.
Hemant N. Dhongade age 56yrs residing at Bibvewadi Pune are
hereby convicted vide section 255(2) of the Criminal Procedure
Code and Section 278(2) of the Bhartiya Nagarik Suraksha
Sanhita, 2023 for the offence punishable under section 138 r/w
141 of the Negotiable Instrument Act, 1881 and accused no.2 is
sentenced to undergo Simple Imprisonment for 06 (Six) months
and to pay fine of Rs.17,00,000/- (Rupees Seventeen Lakhs
only), in default of payment of fine to suffer further simple
imprisonment for 06 (six) months.
3. If fine is recovered, the complainant be given the same as
compensation u/sec.357(1)(b) of Code of Criminal Procedure
and under section 395(1)(b) of the Bhartiya Nagarik Suraksha
Sanhita, 2023.
4. The bail bonds of accused stands cancelled.
5. The copy of Judgment be supplied to the accused no.2 free of
cost forthwith.
(Judgment is dictated and pronounced in the open Court).
( M. P. Saraf )
Judicial Magistrate(First Class),
Date : 10.06.2025. 58th Court, Bandra, Mumbai.
J.O.Code: MH01362
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