Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 C.C.No.1034/SS/2018.
Filed on : 09.05.2018.
Decided on : 04.11.2019.
Duration : 01Y 05M 26D.
IN THE COURT OF METROPOLITAN MAGISTRATE,
58TH COURT, BANDRA, MUMBAI.
(Presided over by P.V. Bulbule)
C.C. No.1034/SS/2018.
(CNR No.MHMM180067362018 )
Exh.No.: 27.
M/s. EXCELLENZE HOSPITALITY LLP,
A Limited Liability Partnership firm,
carrying on business at 301,
Simran Plaza, 3rd floor,
Near Hotel Regal Enclave,
3rd and 4th Road Corner,
Khar Road(West), Mumbai 400 052,
through its Partner
Vivek Jagdishlal Mundra, Age 25 years. ....Complainant.
V/s.
AKSHAT ASHOK KHETAN.
An adult Indian Inhabitant,
having address at : A/702,
7th floor, Lakshachandi Apartment,
K.V. Marg, Gokuldham,
Goregaon(West), Mumbai400 063. .... Accused.
Offence U/sec.138 of the Negotiable Instruments Act, 1881.
Shri.M.S.Dhavale. Ld. advocate for the complainant.
Shri.S.H.Jariwala. Ld. advocate for the accused.
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2 C.C.No.1034/SS/2018.
JUDGMENT
(Delivered on 04/11/2019)
The accused is facing trial for commission of an offence
punishable under section 138 of the Negotiable Instruments Act
(hereinafter referred to as 'The Act' for the sake of brevity.)
2. Brief facts are as under:
The complainant is a limited partnership firm filed the
complaint through its representative. According to the complainant, the
accused made the request and placed the order to the complainant to
book the airline ticket for himself and Ms. Henna Swami in between the
period 15.12.2017 to 19.01.2018. The accused made the part payment.
The accused agreed to make the payment immediately and in default
the accused agreed to pay the interest @ 18% per annum. Accordingly,
the balance amount is Rs.1,76,069.50/ including interest @ 18%. The
complainant made repeated demand to the accused. The accused
issued the subject cheque bearing No.069172 dated 01.02.2018 for
Rs.1,73,569/ drawn on ICICI bank, Shagun Mall, Filmcity Road,
Goregaon. The complainant presented the subject cheque on
19.03.2018 in the Kotak Mahindra Bank, S.V. Road, Khar(West). The
subject cheque is dishonoured on 20.03.2018 with remarks "Funds
Insufficient". The complainant issued the demand notice dated
27.03.2018 by RPAD. It is duly served to the accused on or about
31.03.2018. The accused failed to comply the said notice. Hence, the
complainant is constrained to file the present complaint.
3. After perusal of verification and documents, I passed order
of issue process against the accused for the offence punishable
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U/sec.138 of the Negotiable Instruments Act on 17.07.2018. The
accused appeared and plea of accused is recorded at Exh.11. The
particulars of the pleas are read over and explained to him in vernacular
to which he pleaded not guilty and claimed to be tried.
4. The complainant examined his representative. The accused
failed to crossexamine. Therefore, the crossexamination is closed. The
trial is summary in nature. Statement of accused U/sec.313 Cr.P.C. is
dispensed with. The accused failed to lead the defence evidence. The
complainant filed the memorandum of arguments at Exh.26. The
accused remained continuous absent.
5. From the above facts, following points arise for my
determination to which I have recorded my findings before them for the
reasons discussed there below.
POINTS FINDINGS
1. Does the complainant prove that the accused
issued the subject cheque bearing No.069172
dated 01.02.2018 for Rs.1,73,569/ drawn on
ICICI, Goregaon branch to discharge the debt or
liability and the cheque was dishonored for the
reason ‘Funds Insufficient’ ?
Proved.
2. Does the complainant prove that after service
of the demand notice under sec.138(b) of the
Negotiable Instruments Act the accused failed to
make the payment of cheque amount and thereby
committed the offence punishable under sec. 138
Proved.
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of the Negotiable Instruments Act ?
3. What order? As per final order.
REASONS
6. To prove the case, the complainant examined his represen
tative Vivek Jagdishlal Mundra as P.W.1 at Exh.5. The complainant re
lied on the Certificate of Incorporation Exh.13, invoice Exh.14, certifi
cate U/sec.65(B) of the Indian Evidence Act at Exh.15, ledger at Exh.16,
certificate U/sec.65(B) at Exh.17, certificate dated 05.06.2018 at
Exh.18, subject cheque Exh.19, bank memo Exh.20, office copy of the
demand notice Exh.21, postal receipt Exh.22 and 23 etc.
As to point Nos.1 and 2.
7. It is the case of the complainant that, he booked Airlines
Tickets for the accused and Ms.Henna Swami and to discharge the said
liability in part the accused issued the subject cheque and it is dishon
oured.
8. In the case of 'Rangappa V/s. Mohan 2010 Law Suit
(S.C.) 277', the Hon'ble Apex Court has held that there is initial pre
sumption which favours the complainant that the cheque was issued to
discharge of debt or other liability. It is further held that once the
cheque in question is issued and signature thereon is admitted to be of
the accused, it has to be presumed that the cheque is issued to dis
charge of debt or other liability. Presumption is rebuttable by the ac
cused by leading probable evidence.
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9. I have perused the evidence of Vivek(P. W. 1). He has reit
erated all the contents of the complaint. He claimed that the com
plainant is the partnership firm and he is duly authorized to file the
complaint and depose before the Court. He is conversant with the facts
of the case. He has produced Certificate of Incorporation at Exh.13.
The accused has not challenged the authority of the witness. The wit
ness deposes that the accused placed the order for air ticket in the pe
riod 15.12.2017 to 19.01.2018. The accused agreed to pay the amount
and in default agreed to pay 18% interest. The accused failed to pay
the part amount and the balance amount is Rs.1,76,069.50/. In this re
gard the witness has produced invoice at Exh.14, ledger account at
Exh.16 and the certificate U/sec.65(B) at Exh.15 and 17. The witness
deposes that after repeated demands, the accused issued the subject
cheue to discharge the liability. The subject cheque is at Exh.19. It is
dated 01.02.2018. It is dishonoured on 20.03.2018. The bank memo is
at Exh.20. It bears the seal and signature of the bank authority. The
presumption U/sec.146 of the Negotiable Instruments Act is applicable
to this bank memo. The witness issued the demand notice to the ac
cused on 27.03.2018. Office copy/ computer copy is at Exh.21. The
demand notice is duly served to the accused as per Exh.23. The ac
cused has not given reply. The accused has not complied the demand
notice. The accused has not challenged the oral and documentary evi
dence on record. No reply means no defence. The accused is required
to rebut the presumption U/sec.139 of the Negotiable Instruments Act.
The accused failed to crossexamine, therefore on 02.01.2018 the cross
examination is closed. Thereafter, the accused remained absent and
failed to lead the defence evidence also. The oral evidence and the doc
umentary evidence is consistent to each other. The offence is technical
and all the requirements are complied by the complainant, thereby the
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presumption U/sec.139 of the Negotiable Instruments Act is applicable
to the case.
10. The case is tried summarily. As per Judgment in Indian
Bank Association V/s. Union of India [Reported in (2014) 5 SCC
590]. After filing the evidence under section 145 of the N.I. Act by the
accused is required to recall the complainant for crossexamination if he
wishes to do so, otherwise the matter is required to be posted for the
defence evidence.
11. In the case of Delhi High Court in Rajesh Agrawal V/s.
State and another decided by Delhi High Court on 28.01.2010 it is
held that, “if there is any application under sec. 145(2) of the N.I. Act., of
recalling, the Court shall decide the same, otherwise, it will proceed to take
the defence evidence on record and allow crossexamination of the defence
witness by the complainant. Thereafter, to hear the arguments of the
parties, decide and to pass the order/Judgment”. Hence, there is no need
to statement under sec. 313 of the Code of Criminal Procedure.
12. In view of my above findings, the accused issued the
subject cheque to discharge the liability of the Airline Tickets. The
subject cheque is dishonoured. The accused has not given any defence.
There is no any rebuttal of the presumption U/sec.139 of the Negotiable
Instruments Act. The complainant claimed that the amount is including
the interest and the ticket amount @ 18%. Therefore, only principal
amount is awarded as compensation. The liability is quasi civil. The
complainant is interested to get the amount back. Hence, it is just only
to impose the sentence of fine / compensation and the cheque amount.
In the case of Harisingh Vs. Sukhbirsingh 1988 (4) SCC 551, Hon’ble
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Apex Court has held that the court may impose order of compensation
by imposing sentence in default. Accordingly, I answer point Nos.1
and 2 in the affirmative and proceed to pass following order
ORDER
1. The accused AKSHAT ASHOK KHETAN, An adult Indian Inhabitant,
having address at : A/702, 7th floor, Lakshachandi Apartment, K.V.
Marg, Gokuldham, Goregaon(West), Mumbai400 063 is hereby
held guilty under section 255(2) of the Criminal Procedure Code
and convicted for the offence punishable under section 138 of the
Negotiable Instruments Act, 1881.
2. The accused is ordered to pay the compensation of Rs.1,73,569/
(Rupees One Lakh Seventy Three Thousand Five Hundred Sixty
Nine) to the complainant. In default, the accused to suffer simple
imprisonment for period of Two (02) months, vide section 357(3)
of the Code of Criminal Procedure.
3. The accused to surrender his bail bond.
4. In case the accused is absent, issue NBW against him.
5. Copy of Judgment shall be given to the accused free of cost.
(Judgment pronounced in the open Court).
(P. V. Bulbule)
Mumbai, Metropolitan Magistrate,
Date : 04/11/2019. 58th Court, Bandra, Mumbai.
kdc
Dictated on : 04/11/2019.
Transcribed on : 04/11/2019.
Signed on : 04/11/2019.
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