Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 C.C.No.1137/SS/2018
.. Judgment ..
MHMM180067492018
Filed on : 13/06/2018.
Decided on : 25/11/2022.
Duration : 04Y 05M 13D .
IN THE COURT OF METROPOLITAN MAGISTRATE,
58TH COURT, BANDRA, MUMBAI.
(Presided over by M. Y. Wagh)
J U D G M E N T
( Delivered on 25.11.2022)
Particulars of offence: Exh.24
A. The serial number of the
case
: C.C. No.1137/SS/2018
(CNR NO.MHMM180067492018)
B. The date of commission of
the offence
: 16.05.2018
C. The name of the
complainant (if any)
: M/s.Ixtapa Design Council Private
Limited
Through their Authorized
Representative and signatory Mr.
Satyam Premji Vadher
office address : at 2, Betsy
Apartments, 146, Perry Road, Bandra
(W), Mumbai 400 050.
D. The names of the accused
persons, and their
parentage and residence
: Ms. Niyati Shah
R/o.1703, Crimson Tower, Akurli
Satya Society, Lokhandwala,
Kandivali(E), Mumbai400 101.
Office Address : Shortformates
digital productions Pvt. Ltd.,
405/6/7/9, 'A' wing, Express Zone,
Western Express Highway,
Goregaon(E), Mumbai 400 063.
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2 C.C.No.1137/SS/2018
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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 is Acquitted.
H. The date of such order : 25.11.2022
Ms. Preeti Madan Ld. Advocate for the complainant.
Mr. Manish Rai Ld. Advocate for the accused.
REASONS
1. The accused facing trial for the offence punishable under
section 138 of the Negotiable Instrument Act. In order to prove guilt of
accused following points have to be proved.
a) The accused has issued cheque to discharged his legal liabilities.
b) The complainant has issued demand notice to the accused.
c) The accused failed to pay the cheque amount within 15 days
after receipt of the demand notice to the complainant.
2. The complainant is a company incorporated under the
Companies Act, 1956. The complainant company is the legal and
absolute owner of shop No. 1 situated at Bwing, Asha Colony Co
operative Housing Ltd, Juhu Tara Road, Juhu, Mumbai49. The
complainant stated that the accused approached to the complainant
company and expressed her interest to take the above mentioned shop on
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3 C.C.No.1137/SS/2018
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leave and licence basis from the complainant company for running a
Fashion store under the name 'Niyati'. The complainant company agreed
to give the said shop to the accused on leave and licence basis and
entered into a leave and licence agreement with the accused and
registered the said leave and license agreement on 28.12.2015.
Thereafter, the accused handed over all the post dated cheques towards
the monthly License fees for the time period started from 18.01.2016 to
17.01.2021 which were duly signed by the accused. Out of the said
cheques one cheque bearing No.977406 dated 18.04.2018 of
Rs.5,01,169/ drawn on ICICI Bank, Goregaon branch was deposited by
the complainant with its banker State Bank Of India, Juhu Tara Road and
it is dishonored as per bank memo dated 19.04.2018 for the reason
'Funds Insufficient'. The complainant issued the demand notice dated
25.04.2018 through his advocate. Inspite of service of notice accused not
paid the cheque amount.
3. 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 presumption
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 discharge of debt or other
liability. Presumption is rebuttable by the accused by leading probable
evidence. In the judgment of M/s. Kumar Export V/s. M/s. Sharma
Carpets 2009 (2) SCC 513 Hon'ble Supreme Court held that the accused
may prove his defence on his own evidence or on basis of evidence
brought on record by the complainant.
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4. In the present case the complainant filed an affidavit in lieu
of examination in chief but he was absent for crossexamination.
Therefore, before closed his evidence. In this circumstance the evidence
of the complainant can not be believed. Therefore, I hold that the
complainant failed to prove that the accused issued cheque for the legal
liability arising out of legal transaction between them. Hence, I hold that
The complainant failed to prove that the accused has committed the
offence punishable under section 138 of the Negotiable Instruments Act.
Accordingly, I proceed to pass following order.
ORDER
1. Accused Ms. Niyati Shah is acquitted for the offence punishable
under section 138 of the Negotiable Instruments Act, 1881, in
view of the section 255(1) of The Criminal Procedure Code.
2. The bail bond of accused his cancelled.
3. The original documents filed by complainant be returned to him
after the appeal period.
(Judgment is dictated and pronounced in the open Court).
(M.Y.Wagh)
Mumbai, Metropolitan Magistrate,
Date : 25.11.2022. 58th Court, Bandra, Mumbai.
KSJ/
Dictated on : 25.11.2022.
Typed on : 25.11.2022.
Signed on : 25.11.2022.
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